Victorian Public Sector Commission

Mr James Newbury MP
Member for Brighton
315 New Street
BRIGHTON VIC 3186

Via email: james.newbury@parliament.vic.gov.au

Dear Mr Newbury

I am writing further to my letter to you dated 1 May 2020 in which I responded to your letter of
30 April 2020 and informed you that I intend to consider the matters you have raised with me.

Your correspondence raises a matter with the behaviour of Dr van Diemen, Deputy Chief
Health Officer (Communicable Diseases) specifically regarding a tweet Dr van Diemen
posted on her personal account at 10:16am on Wednesday, 29 April 2020. Specifically, you
requested my investigation and advice on the matter.

The Victorian Public Sector Commission (‘the Commission’) has now completed its
consideration of the matters you raised in your letter to me.

The Commission’s Objectives, Role, and Functions

In considering the matters raised, I have had regard to the objectives and functions of the
Commission as established by the Public Administration Act 2004 (‘the PAA’).

Section 40 of the PAA sets out the functions of the Commission as they relate to public
sector professionalism and integrity. Among other things, these include:

 to advocate for an apolitical and professional public sector (s.40(1)(a));

 to issue and apply codes of conduct and standards (s. 40(1)(b)); and
 to monitor and report to public sector body Heads on compliance with the public
sector values, codes of conduct, and public sector employment principles and
standards (s.40(1)(c)).

The PAA links the Commission's role in monitoring and reporting compliance as established
in section 40(1)(c) with section 63. Section 63 of the PAA relevantly sets out the way in which
the Commission has oversight of compliance with public sector values, codes of conduct,
public sector employment principles and standards. It provides that the Commission may
make recommendations to a public sector body Head on the steps that should be taken to
promote or comply with the public sector values, codes of conduct, etc.

The PAA does not set out any other mechanisms in section 63 beyond making
recommendations to public sector body Heads. Further, apart from s 63, the PAA has only

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 two other provisions empowering the Commission to conduct investigations into compliance
with the public sector values and codes of conduct. In both cases, this is at the direction of
the Premier.

Considerations Undertaken

Consistent with the functions and objectives of the Act, and given the matter you raised with
me in your letter relates to an employee of the Department of Health and Human Services, I
wrote to the Secretary of the Department of Health and Human Services (‘the Secretary’).
The Secretary was requested to consider the matters raised in your correspondence,
including compliance with the Department’s internal policies, the PAA, and the Code of
Conduct for Victorian Public Sector Employees (‘the Code’), and the Commission’s guidance
for the use of social media in the Victorian public sector (‘the Guidance’).

In writing to the Secretary, I drew attention to the Public Sector Values, particularly the
integrity value under s. 7(1)(b)(v) of the PAA which establishes that public officials should
demonstrate integrity by striving to earn and sustain public trust of a high level. I also drew
particular attention to Sections 3.5 and 3.9 of the Code relating to ‘public comment by public
sector employees’ and ‘public trust’ as well as the Commission’s guidance for the use of
social media in the Victorian public sector.

After considering the Secretary’s response to me (Attachment A), I sought additional

information in a subsequent letter to the Secretary. In particular I sought information
regarding how the Department has assessed compliance with the element of the Code that
provides that ‘In the performance of their public duties and in their private life, public sector
employees avoid conduct that may adversely affect their standing as a public official or which
may bring their public sector employer or the public sector into disrepute’. The Secretary
wrote in response to my subsequent letter and provided additional information (Attachment
B).

The Secretary has advised me that consideration was given to whether the tweet constituted
a contravention of the Code of Conduct, including the obligation to adhere to Public Sector
Values, and concluded that, on balance it did not. In concluding this, the Secretary, among
other things, gave consideration to relevant legislation; any impact of Dr van Diemen’s tweet
on public confidence in the fulfillment of Dr van Diemen’s public health functions; and that the
tweet was made by Dr van Diemen in her private capacity.

The Secretary also advised that the tweet occurred when Dr van Diemen was not at work
and was on her rostered day off.

The Secretary has advised that she is satisfied that Dr van Diemen is now aware of the
potential risks of private social media commentary. The risks of private use of social media
when working in the public sector, and in particular when occupying a role that involves high
profile public communication, have been discussed with Dr van Diemen. In addition, the
Secretary has advised the Commission that Dr van Diemen recognises the risk of diverting
attention from the critical public health messages to the community and has subsequently
removed her Twitter account from her phone.

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 The Secretary is satisfied that there continues to be public confidence in Victoria’s public
health advice and expertise, and in Dr van Diemen’s leadership role. In relation to Public
compliance with COVID-19 Directions, the Secretary notes that there has not been a material
increase in the daily number of fines issued by Victoria Police for non-compliance. In
particular, the Commission is advised by the Secretary that the community remains engaged
in the importance of the program with increasing numbers of people attending COVID-19
testing over the latter part of the week. Further there are no reports of any change to levels of
community or business cooperation in the management of outbreaks.

The Commission has also been advised that the Department of Health and Human Services’
Executive Board will consider an updated social media policy to be released early in the
week beginning 4 May 2020. The Department is also developing a more comprehensive
training package for departmental officials who are asked to assume a higher public profile to
ensure public confidence in the functions and advice of the Department.

In the completion of my consideration, I note the Secretary’s conclusion and the steps the
Department of Health and Human Services will take to enhance relevant guidance and
training to departmental staff, including to public officials who are asked to assume a higher
public profile.

The Commission is currently reviewing its Guidance for the Use of Social Media in the
Victorian Public Sector. The Commission’s consideration of this matter will inform the
updated Guidance.

Furthermore, the Commission will proactively communicate the updated Guidance across the
public sector and remind employees of the risks of private use of social media when working
in the public sector and their obligations under the Code of Conduct.

This letter has been copied to the Premier for his information as the responsible Minister,
noting that my consideration of the matters you have raised was undertaken independently
having regard to the functions, powers and objectives of the Commission under the PAA.

I trust this information is of assistance.

Yours sincerely

+
Julia Griffith
Acting Commissioner

/ /2020

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 BAC-11608
Ms Julia Griffith
Acting Commissioner
Victorian Public Sector Commission
Level 2, 3 Treasury Place
EAST MELBOURNE VIC 3002

Via email: Julia.griffith@vpsc.vic.gov.au

Dear Julia

Thank you for your letter of 1 May 2020, and note the request that I respond on the matters
contained in your letter.

I confirm that the department has considered the tweet issued by Ms Annaliese van Diemen
on Wednesday 29 April 2020 and consulted with Annaliese in relation to it.

As you are aware, Annaliese is an employee of the department and holds the role of
Victorian Deputy Chief Health Officer. She is bound by the Code of Conduct for Victorian
Public Sector Employees and the Public Sector Values.
I am advised that the tweet occurred when Annaliese was not at work and was given in her
personal capacity. The public health command is operating on a 24 hour/7 day a week roster
and Wednesday 29 April was her rostered day off.

Nevertheless, we have given consideration as to whether the tweet constituted a

contravention of the Code of Conduct, including the obligation to adhere to Public Sector
Values. We have concluded that, on balance, it did not for these key reasons:
• the text of the tweet is, on its face, not in contravention of any other Victorian law or
legislation;
• the tweet was made in the author’s private capacity and is not obviously a comment
to be attributed to the Victorian government or the Department of Health and Human
Services;
• the tweet, while made in a private context, does not directly relate to any government
activity the author is involved in, i.e indigenous affairs funding programs;
• the tweet does not raise any obvious direct or indirect conflict of interest;
• the tweet does not contain any confidential information or government material only
known to the author through their employment; and
• the tweet was not in breach of the department’s social media policy.
Annaliese plays a key role in the department as a public health physician. In the context of
the COVID-19 public health response she now has a higher profile role in the community.
We have discussed the sensitive nature of any public communication and provided her with
more communications support.

I trust that this addresses the matters raised.

Yours sincerely

Kym Peake
Secretary

01 / 05 / 2020

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Ms Julia Griffith
Acting Commissioner
Victorian Public Sector Commission
Level 2, 3 Treasury Place
EAST MELBOURNE VIC 3002

Via email: Julia.griffith@vpsc.vic.gov.au

Dear Julia
Thank you for your letter of 2 May 2020, requesting further information about Dr van
Dieman’s compliance with section 3.9 ‘Public Trust’ of the Code of Conduct for Victorian
Public Sector Employees.
As noted in my correspondence of 1 May 2020, Dr van Diemen is the Deputy Chief Health
Officer (Communicable Diseases) and is currently work exclusively in the COVID-19
emergency response. Together with Dr Brett Sutton, Victoria’s Chief Health Officer, Dr van
Diemen leads the COVID-19 public health function of the department, which undertakes the
following key roles:
• Managing containment of COVID-19, through information to the public, management of
positive cases, case tracing, isolation and quarantine of affected Victorians and
management of outbreaks of the virus
• Expert advice to government on the epidemiology of COVID-19 in Victoria and on the
experience of the virus internationally
• Determining testing criteria for the virus and programs of surveillance to identify cases
and determine prevalence of the virus in the community
• Stakeholder interaction with pathology labs to support management of critical resources
• Issuing enforceable directions to achieve population based interventions to suppress the
virus
• Membership of the Australian Health Protection Principal Committee (AHPPC), chaired
by Professor Brendan Murphy, the Chief Medical Officer.

In assessing compliance with section 3.9 of the Code of Conduct, I have relevantly given
consideration to any impact of Dr van Dieman’s tweet of 29 April on public confidence in the
fulfilment of these functions.
Based on the evidence available to me (as set out below), I am satisfied that Ms van Dieman
is now aware of the potential risks of private social media commentary. I am further satisfied
that there continues to be public confidence in Victoria’s public health advice and expertise,
and in Dr van Dieman’s leadership role.
Management discussions with Dr van Diemen
As noted in my correspondence of 1 May and supporting materials, on Thursday 30 April,
senior managers in the department met with Dr Van Diemen to discuss the risks of private
use of social media when working in the public sector, and in particular when occupying a
role that involves high profile public communication. I am advised that Dr Van Diemen
recognised the risk of diverting attention from the critical public health messages to the
community and has subsequently removed her Twitter account from her phone. This accords
with my own discussions with Dr Van Diemen.

Public compliance with COVID-19 Directions

The public health function determines the population based interventions required to
suppress the virus. A key element of this is enforceable directions to protect vulnerable
cohorts, ensure quarantine of returned travellers and to achieve physical distancing.
The community has, on the whole, been supportive and compliant with these directions.
Victoria Police is empowered to issue on-the-spot fines for non-compliance. There has not
been a material increase in the daily number of fines issued by Victoria Police for non-
compliance with the COVID-19 Directions during the latter part of this week.
Infringements issued by Victoria Police for non-compliance with the COVID-Directions
following Dr van Diemen’s tweet. Enforcement data for the previous week is presented for
information below:

Date Number of fines for non-compliance

issued
Friday 24 April 2020 55 fines
Saturday 25 April 2020 72 fines
Sunday 26 April 2020 59 fines
Monday 27 April 2020 56 fines
Tuesday 28 April 2020 53 fines
Wednesday 29 April 2020 41 fines
Thursday 30 April 2020 74 fines
Friday 1 May 2020 30 fines

Public responsiveness to public health messaging

A key focus of public health messaging in the week of 27 April has been encouraging
Victorians to participate in an expanded testing program. The aim of the program is to better
understand the prevalence of COVID-19 in the community.
Everyone with any of the symptoms of COVID-19 is actively encouraged to get tested. In
addition, asymptomatic testing is being made available to higher risk cohorts. The program
aims to achieve at least 50,000 tests in 14 days, and targets 100,000 tests.
At the commencement of the blitz about 1,500 to 2.500 people per day were being tested.
As at Friday 1 May 2020 over 33,000 tests have been recorded since Monday, with
increasing numbers attending testing over the latter part of the week. As at Saturday 2 May
2020, mobile testing units remain busy with some sites experiencing queues.
It appears that the community remains engaged in the importance of this significant program.
Community and business co-operation with public health responses to outbreaks
The public health function is currently managing 17 active outbreaks of the virus. There are
no reports of any change to levels of community or business cooperation in the management
of these outbreaks.

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Ongoing leadership in the Australian Health Protection Principal Committee (AHPPC)
Victoria continues to play an important role in AHHPC, which convenes most days and
makes critical recommendations to National Cabinet about public health interventions
required to manage COVID-19. The CHO attends these meetings on behalf of Victoria. The
Deputy Chief Health Officer acts in the role of CHO when the CHO is unavailable and
continues to do so, including at the current meeting on Saturday 2 May 2020.
In relation to Dr van Diemen, Dr Brendan Murphy, the chair of AHPPC, is reported as stating:
“She’s a fine young public-health physician who has been working 80 hours a week for the
past two months," he said. "She made a personal tweet and that’s a matter on her personal
Twitter account for her. I don’t personally concur with her view, but I think that’s a matter for
her."
Future enhancements to induction and guidance to public information
In the past 48 hours the strategic communications team has reviewed the department’s
social media policy, with an update to be considered by the Executive Board and released
early in the week beginning 4 May. This will be promoted to all staff and built into induction
and ongoing professional development across the department.
The Director of Strategic Communications is also developing a more comprehensive training
package for departmental officials are asked to assume a higher public profile to ensure
public confidence in the functions and advice of the department.
Please do not hesitate me to discuss any of the matters set out above, or if there is any
additional information that would assist the Commission in performing its important functions.

Yours sincerely

Kym Peake
Secretary

02/05/2020