8. Protected Disclosures
8.1 Protected Disclosures Procedures
The Protected Disclosures Act 2012 (PD Act) is Victorian Government legislation which has been introduced to minimise levels of corruption and improper behaviour in public office and public bodies. It replaces the previous Whistleblowers Protection Act 2001.
There are three main purposes of the PD Act:
1. To encourage and assist people to make a disclosure of improper conduct and detrimental action by public officers and public bodies
2. To provide certain protections for people who make a disclosure, or those who may suffer detrimental action in reprisal for a disclosure
3. To ensure that certain information about a disclosure is kept confidential – the identity of the person making the disclosure, and the content of that disclosure.
The Independent Broad-based Anti-corruption Commission (IBAC) established by the Independent Broad-based Anti-Corruption Commission Act 2011 (IBAC Act) is required to:
· provide for the identification, investigation and exposure of serious corrupt conduct, and police personnel misconduct
· assist in the prevention of corrupt conduct, and police personnel misconduct
· facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community, and the ways in which corrupt conduct and police personnel misconduct can be prevented
· assist in improving the capacity of the public sector to prevent corrupt conduct and police personnel misconduct.
The IBAC Act provides for a range of powers and processes to allow IBAC to undertake its work, and for the reporting of cases of corruption and improper practice. The PD Act requires public bodies to establish processes to allow the reporting of corrupt and improper behaviour by public bodies, and also provides for the protection of persons reporting corruption or improper practice.
Public Bodies (of which the Casey-Cardinia Library Corporation is one) are required to establish processes and protections to ensure that staff members and other persons are able to report cases of corruption and improper practice, and to receive appropriate protection when doing so.
The following sections describe the types of conduct or behaviour that might warrant a disclosure, disclosure types and the processes involved for the reporting of disclosures relating to the Library Corporation, its operations, employees or officers.
Public bodies and public officers
The IBAC Act defines public bodies and public officers. Under the Act, a public body includes Victorian public sector organisations, Councils and various other bodies whether corporate or unincorporated, constituted or established under an Act for a public purpose. This definition includes Regional Library Corporations such as the Casey-Cardinia Library Corporation.
A Public Officer is a person employed in any capacity or holding any office in the public sector. This includes all staff members of the Casey-Cardinia Library Corporation.
Purpose of these Procedures
These procedures establish a system for reporting disclosures of improper or corrupt conduct, or detrimental action by the Library Corporation or its employees. The procedures enable such disclosures to be made to the designated protected disclosure officer. (See below)
These procedures are in addition to normal communication channels between managers/supervisors and employees. All employees of the Corporation are encouraged to continue to raise appropriate matters at any time with their managers or supervisors. As an alternative, employees may make a disclosure of improper conduct or detrimental action under the Act in accordance with these procedures
The following key concepts relate to this procedure:
Specified conduct is improper conduct that would, if proved, constitute a criminal offence or reasonable grounds for dismissal.
At the lowest level the improper conduct must be at least either criminal conduct or conduct serious enough to result in a person’s dismissal.
Typically such conduct would involve a substantial mismanagement of public resources, a substantial risk to public safety or a substantial risk to the environment.
Corrupt conduct is:
· conduct that adversely affects the honest performance by a public officer or public body of their functions
· conduct of a public officer or body that constitutes or involves the dishonest performance of their functions
· conduct of a public body or officer that knowingly or recklessly breaches public trust
· conduct of a public officer or body that involves the misuse of information or material acquired in the course of the performance of their role or function, whether or not for the benefit of the public body or person
· conduct that could constitute a conspiracy or an attempt to engage in the above forms of conduct
The listed forms of conduct amount to corrupt conduct if they constitute an indictable statutory offence if proven, or the offences of attempting to pervert the course of justice, perverting the course of justice or bribery of a public official. An indictable offence is a serious criminal offence that is trialled before a judge and jury.
Under the PD Act it is an offence for a person to take detrimental action against another person reprisal for making a protected disclosure. It is important to determine if any detrimental action is being taken in reprisal for a protected disclosure. The person taking the detrimental action must be a public officer or public body.
The PD Act defines detrimental action by a person as including the following:
· action causing injury loss or damage
· intimidation or harassment
· discrimination, disadvantage or adverse treatment in relation to an person’s employment, career, profession, trade or business, including the taking of disciplinary action
The person need not have taken the action, but can just have threatened to take it. The person need not have taken, or threatened to take, the action themselves, but incited someone else to do so. The detrimental action need not be taken against a discloser, but against any person. The reason for the person taking action in reprisal must be a ‘substantial’ reason, or it is not considered to be detrimental action.
The Reporting and Disclosure System
Who to make a disclosure to
Public service bodies and Councils as set out in section 13 of the PD Act, may only receive disclosures that relate to the conduct of themselves, their own members, officers or employees. Such disclosures may also be made to IBAC, or to the Victorian Ombudsman (if within the Ombudsman’s jurisdiction to investigate).
Making a Disclosure to or about the Casey-Cardinia Library Corporation
The Chief Executive Officer is the designated primary contact for disclosures relating to the operation and employees and officers of the Corporation.
Mr Peter Carter
Chief Executive Officer
Casey-Cardinia Library Corporation
Locked Bag 2400
03 5990 0100
All correspondence, phone calls and emails relating to internal and external disclosures will be referred to the Chief Executive Officer.
Alternative Contact Persons
If the disclosure relates to the conduct or position of the Chief Executive Officer or the person reasonably believes that they cannot approach the Chief Executive Officer regarding the intended disclosure, then a disclosure should be made directly to IBAC. Complaint forms are available from IBAC or their website at: www.ibac.vic.gov.au
They may be mailed to:
GPO Box 24234
Fax: 03 8635 6444
Phone: 1300 735 135
Disclosures about improper conduct or detrimental action by the Corporation or its employees may also be made directly to the Victorian Ombudsman:
The Ombudsman Victoria
Level 9, North Tower
459 Collins Street
Phone: 03 9613 6222 or 1800 806 314
How to make a disclosure
A person may make a disclosure verbally or in writing.
A person can make a verbal disclosure:
· in person
· by phone
· by leaving a voice mail message
· by any other form of electronic communication that does not require writing (note that an email is considered to be a written disclosure).
The disclosure must be made in private. This means that the person making the disclosure must reasonably believe that only the following people are present or able to listen to the conversation:
· the person making the disclosure
· a lawyer representing the person (if any)
· one or more people to whom a disclosure can be made under the PD Act or Regulations.
This does not preclude a group of individuals making of a joint disclosure at the one time.
If the disclosure is made verbally, the Corporation should ensure that the person receiving the disclosure makes notes at the time recording the disclosure. This person could also record the conversation, but should only do so with the discloser’s permission or by giving prior warning that the conversation will be recorded.
A written disclosure can only be provided to the Library Corporation by:
· personal delivery to the office of the Library Corporation
· mail addressed to the office of the Library Corporation
· email to the email address of the office of the Library Corporation, or to the official email address of the Chief Executive Officer
IBAC and the Victorian Ombudsman can also accept a written disclosure via an online form. Disclosures cannot be made by fax.
A discloser need not identify themselves to the Library Corporation to make a disclosure under the PD Act.
An anonymous disclosure can be made by using unverifiable email addresses, through anonymous phone calls or in a face-to-face conversation or meeting where the person refuses to identify themselves (provided that meeting or conversation takes place ‘in private’ in accordance with the PD Regulations).
If the disclosure comes from an email address where the identity of the person making the disclosure cannot be determined, the disclosure should be treated as an anonymous disclosure.
Handling a Disclosure
If the Library Corporation receives a complaint, report or allegation of improper conduct or detrimental action, the first step is to determine whether the disclosure may be a protected disclosure.
The discloser does not specifically have to request the protections of the PD Act, or refer to the PD Act at all. The initial assessment is made on the nature of the information disclosed or the belief the discloser has about the nature of the information, not on the discloser’s intention.
The Corporation must make the assessment of the disclosure based on the requirements outlined in Part 2 of the PD Act. If the disclosure is considered to fall under the PD Act as a ‘Protected Disclosure’, the Corporation Officer receiving the disclosure must be aware that protections apply to the discloser.
If the disclosure is determined not to meet the requirement of the PD Act, then it is not a protected disclosure and the Corporation may deal with it under its own complaints handling processes.
If the Corporation does not believe the disclosure to be a protected disclosure, then it must provide the discloser with a written response within 28 days, stating:
· the entity does not consider the disclosure to be a protected disclosure
· the disclosure has not been notified to IBAC for assessment
· the protections under part 6 of the PD Act apply, regardless of whether the disclosure is notified to IBAC for assessment
The Corporation is not required to notify IBAC of the disclosure if it does not consider it to be a protected disclosure. It may also decide to deal with the matter as a complaint directed to it for resolution.
If the Corporation considers that the disclosure may be a protected disclosure, then it is required to notify the disclosure to IBAC of assessment and to notify the discloser. These notifications can be done by persons specified in the Protected Disclosure Regulations 2013 as persons who can receive disclosures. This would be the Chief Executive Officer in the case of the Library Corporation. Such a disclosure is called an assessable disclosure.
Notification to IBAC
The Corporation must advise the discloser within 28 days that:
· the disclosure has been notified to IBAC for assessment
· It is an offense under Section 74 of the PD Act to disclose that the disclosure has been notified to IBAC for assessment
The Corporation must notify IBAC in writing within 28 days after the disclosure was made that:
· The Corporation considers the disclosure may be a protected disclosure, and
· The Corporation is notifying the disclosure to IBAC for assessment
The Corporation may also provide IBAC with any related information that they have regarding the disclosure that may have been gathered during inquiries about the disclosure. The Corporation is given specific protections under the PD Act relating to confidentially or confidentiality obligations, if it and its officers act in good faith and in accordance with the PD Act and Regulations when investigating and providing information to IBAC relating to a Disclosure.
IBAC will assess any notification of disclosures. IBAC will make decisions and take further action on the basis of its assessment. These actions may include a variety of options, including dismissal, investigation or referral of a matter.
The following checklist should be used when preparing a notification for sending to IBAC:
The notification should include:
☐ a complete description of the allegations or suspected events
☐ the name and position of any public official/s alleged to be involved
☐ the name/s of the person/s who made the allegation/s
☐ the name and role of any other person/s relevant to the matter
☐ the dates and/or time frames in which the alleged conduct occurred
☐ a brief analysis of why the events in question may be corrupt conduct
☐ a brief analysis of the basis for forming a reasonable suspicion about the events in question
☐ an indication as to whether the conduct appears to be a one-off event or part of a wider pattern or scheme
☐ the date the allegation was made or the date you became aware of the conduct
☐ how you became aware of the conduct
☐ what your organisation has done about the suspected conduct, including notification to any other agency (for example, the Police or the Victorian Ombudsman)
☐ what further action you propose
☐ the approximate amount of money or value of resources (if any) involved
☐ any other indicators of seriousness
☐ any other information deemed relevant to the matter
☐ copies of any relevant documents
☐ the name of the relevant contact officer.
Roles and Responsibilities
All employees are encouraged to report known or suspected incidences of improper conduct or detrimental action in accordance with these procedures. All Library staff have a role to play in supporting any staff member who has made a legitimate disclosure. Staff must refrain from any activity that is, or could be perceived to be, detrimental to a person who makes a disclosure. They must at all times protect and maintain the confidentiality of a person who they know or suspect to have made a disclosure.
The Chief Executive Officer will:
- Be a contact point for general advice about the operation of the Act for any person wishing to make a disclosure about improper conduct or detrimental action
- Make arrangements for a disclosure to be made privately and discreetly and, if necessary, away from the workplace
- Receive any disclosure made orally or in writing (internal and external disclosures)
- Commit to writing any disclosure made orally
- Impartially assess the allegation and determine whether it is a disclosure made in accordance with Part 2 of the Act (that is, a protected disclosure)
- Refer all protected disclosures to IBAC
- Take all necessary steps to ensure the identity of the discloser and the identity of the person who is the subject of the disclosure are kept confidential
- Receive all phone calls, emails and letters from members of the public or employees seeking to make a disclosure
- Impartially assess each disclosure to determine whether it is a public interest disclosure
- Be responsible for carrying out, or appointing an investigator to carry out, an investigation referred to the Corporation by the Ombudsman
- Be responsible for overseeing and coordinating an investigation where an investigator has been appointed
- Appoint a welfare manager to support the discloser and to protect him or her from any reprisals
- Advise the discloser of the progress of an investigation into the disclosed matter
- Establish and manage a confidential filing system
- Collate and publish statistics on disclosures made
- Take all necessary steps to ensure the identity of the discloser and the identity of the person who is the subject of the disclosure are kept confidential
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