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Whistleblowing (Reporting Corruption and Other Wrongdoing) Procedures

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Section 1 - Purpose and Context

(1) These procedures apply to the enactment and administration of the Whistleblowing (Reporting Corruption and Other Wrongdoing) Policy ("Policy").

(2) These procedures set out the way in which the University will:

  1. deal with and investigate reports of suspected wrongdoing under the Policy;
  2. identify, manage and minimise risks to officers, staff and students who make reports and/or who are required to participate in the process;
  3. meet its statutory obligations under the Public Interest Disclosures Act 1994 (NSW), the Independent Commission Against Corruption Act 1988 (NSW) and other relevant legislation;
  4. meet its obligations under the relevant Western Sydney University Staff Enterprise Agreements.

(3) Unless defined in these procedures, words and terms used in these procedures have the same meaning given to them in the Policy.

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Section 2 - Where and How to Report Suspected Wrongdoing

How to Make a Report

(4) Reports of suspected wrongdoing can be made orally or in writing, and must always be referred to a Disclosure Officer. If a staff member who is not a Disclosure Officer receives a report, he or she must refer it to a Disclosure Officer immediately.

(5) A report involving the Chancellor, the Vice-Chancellor and President or a member of the Board of Trustees or one of its committees must be made directly to the Disclosure Coordinator, who must then refer it to the appropriate external investigation agency.

Disclosure Officers

(6) The following are Disclosure Officers authorised by the University for the purposes of the Policy and these procedures:

  1. the Principal Officer as defined in the Public Interest Disclosures Act 1994, who is the Vice-Chancellor and President of the University;
  2. the Disclosure Coordinator who is:
    1. the University Secretary and General Counsel; or
    2. the Senior Deputy Vice-Chancellor, but only if the University Secretary and General Counsel has a conflict of interest in respect of, or is the subject of, a report of suspected wrongdoing, or is otherwise unavailable to act as Disclosure Coordinator;
  3. the following:
    1. the Chancellor, but only where the Vice-Chancellor and President has a conflict of interest in respect of, or is the subject of, a report of suspected wrongdoing;
    2. the Director, Audit and Risk Assessment;
    3. the Manager, Complaints Resolution.

Initial Action Taken on Receipt of a Report

(7) Following receipt of a report of suspected wrongdoing, the Disclosure Officer must:

  1. if requested or otherwise appropriate, arrange to meet with the person making the report discreetly and, preferably, away from that person’s workplace or study area;
  2. ask the person to make a statement or follow the steps in sub-clause (c) below;
  3. in the case of an oral report;
    1. make a comprehensive written record of it;
    2. ask the person who made the report to sign that record and give him or her a copy; and
    3. ensure that the record is filed in accordance with the Records and Archives Management Policy;
  4. explain the process for assessing a report, in accordance with Section 3 of these procedures and include information on:
    1. how to keep the person’s identity confidential (if the person has not already self-disclosed); and
    2. developing an appropriate risk reprisal management plan.
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Section 3 - Assessment After a Report of Wrongdoing is Made

Report Assessment by Disclosure Officer

(8) Each report of suspected wrongdoing must be assessed to decide whether:

  1. it qualifies as a public interest disclosure;
  2. it should be investigated, taking into account whether:
    1. it can properly or effectively be investigated; or
    2. it can be more appropriately resolved in another way, such as a process under another policy; or
    3. through another process either separately or concurrently;
  3. it should be investigated internally or referred to an external investigator;
  4. it involves a criminal offence, corrupt conduct or other conduct that should be reported or notified to the police or an investigating authority (for example, the Independent Commission Against Corruption);
  5. there is any risk of reprisals;
  6. any legal or other professional advice should be obtained.

Risk Assessment

(9) The Disclosure Coordinator must arrange for a risk assessment to be undertaken following receipt of a report. The risk assessment must be in writing, and:

  1. assess the likelihood of reprisals using a matrix which considers the seriousness and likelihood of potential reprisals;
  2. assess the likely impact on the person(s) who is/are the subject of the report, taking into account the seriousness of the matters raised in the report;
  3. include appropriate strategies to minimise or control risks of reprisals and other adverse impacts;
  4. be monitored and regularly reviewed to ensure those strategies remain effective and take into account any changed circumstances; and
  5. should be first discussed with the person who made the report.

Assessment by Disclosure Coordinator

(10) Following receipt of a report of suspected wrongdoing through a Disclosure Officer, the Disclosure Coordinator may, at any stage of the process, do any one or more of the following:

  1. decide not to accept the report if it appears to be:
    1. an unsubstantiated allegation with no specific information that points to alleged wrongdoing; and/or
    2. not made as an honest or genuine report on reasonable grounds or contains false or misleading information;
  2. if the report does not involve wrongdoing but involves a complaint of another kind, refer it to be dealt with under the relevant policy or process, for example, the Complaint Handling and Resolution Policy;
  3. if the report includes suspected wrongdoing and other matters not covered by the Policy, the Disclosure Coordinator may determine that a combined preliminary inquiry should be undertaken, prior to deciding whether formal investigation is required;
  4. if the report is accepted and alleges wrongdoing against a staff member to whom a staff enterprise agreement applies:
    1. determine whether a preliminary inquiry should be undertaken in order to establish whether investigation under the enterprise agreement may be required; and
    2. refer the matter to the Executive Director, Human Resources, regardless of whether a preliminary inquiry is conducted under sub-clause (i);
  5. if the report is accepted and alleges wrongdoing against a public official to whom a staff enterprise agreement does not apply, arrange for investigation of that report.

(11) The Disclosure Coordinator is to provide the person who made the report with an acknowledgement and a copy of the Policy and these Procedures within 10 business days of receipt.

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Section 4 - Referral to Executive Director, Human Resources

(12) When a report is referred to the Executive Director, Human Resources under clause 10(d), the Executive Director, Human Resources must:

  1. obtain the approval of the Disclosure Coordinator to the terms of reference before any formal investigation begins pursuant to the relevant staff agreement; and
  2. ensure that any investigation is conducted in accordance with these procedures, especially this Section 4, to the extent that these are not inconsistent with any procedures specified in the relevant staff agreement.

(13) At the conclusion of any investigation, or disciplinary proceedings conducted under the relevant staff agreement, the Executive Director, Human Resources or other person responsible for arranging or conducting that investigation (as the case may be) must provide the Disclosure Coordinator with:

  1. a copy of the investigation report; and
  2. details of any action taken or proposed to be taken against the staff member.
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Section 5 - Investigation

Multiple Allegations

(14) A report of suspected wrongdoing that involves a report of behaviour that includes conduct normally dealt with under another policy (such as bullying or harassment) may be investigated under these Procedures if the Disclosure Coordinator considers it appropriate or practical to do so.

Process

(15) A person who investigates, including as a preliminary investigation for the purposes of clause 10(c), a report of wrongdoing must:

  1. conduct it in a thorough, fair and impartial manner and within the relevant terms of reference and, if applicable, in accordance with the requirements of the relevant staff agreement;
  2. prepare a written report of that investigation that sets out:
    1. the terms of reference or matters investigated;
    2. the methodology adopted for that investigation;
    3. a list of persons interviewed;
    4. a list of all documents or systems reviewed;
    5. an analysis of evidence obtained (including relevance);
    6. findings of fact; and
    7. to the extent that this falls within the terms of reference any recommendations for action (including, for example, how systems might be improved).

(16) The written report must not reveal the identity of the person who made the report, except to the extent that this is necessary to include them in the list of witnesses interviewed or unless that person first gives his or her written consent.

Conclusion of Investigation

(17) Following receipt of an investigation report, the Disclosure Coordinator will:

  1. finalise any reports to external agencies, such as the Independent Commission Against Corruption or the NSW Ombudsman;
  2. write to the person who made the disclosure and finalise the matter (if the report has been accepted as a public interest disclosure, this must be done within six months after disclosure is made); and
  3. if the report identifies any systemic issues that require attention, refer them to the Director, Audit and Risk Assessment for follow up with relevant management.
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Section 6 - Reporting to ICAC

(18) If, at any point in these procedures, the Disclosure Coordinator reasonably suspects that wrongdoing concerns or may concern corrupt conduct that is required to be reported under s.11 of the ICAC Act, he or she must (as appropriate):

  1. advise the Vice-Chancellor and President to make that report; or
  2. arrange for legal advice for the Vice-Chancellor and President on whether the matter should be reported.
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Section 7 - Support

(19) The University recognises that making a report of suspected wrongdoing can have a significant impact on a reporter and encourages them to seek free support through the Employee Assistance Program or University Counselling Service.

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Section 8 - Protection Against Reprisals

(20) A reprisal is any detrimental action taken substantially because a person has made, or is suspected to have made, a public interest disclosure. The University will not tolerate any reprisal against staff who report wrongdoing or are believed to have reported wrongdoing.

(21) The Act imposes penalties on a person who takes detrimental action against another person substantially in reprisal for a public interest disclosure, including fines and imprisonment.

(22) The University will take disciplinary action against staff members or students involved in any reprisals in breach of the Policy and the Act.  For others involved in reprisals, the University may report those persons to the police or to a relevant investigation authority, such as the NSW Independent Commission Against Corruption or the NSW Ombudsman.

(23) Reprisals must be reported promptly to the Disclosure Coordinator or a Disclosure Officer, so that appropriate action can be taken.

(24) The University will take action to support and help protect staff members and students against reprisals, which may include:

  1. issuing warnings to or taking disciplinary action against suspected perpetrators;
  2. relocation of the suspected perpetrator, staff member or student who made the report to another location or position for which they are qualified for a limited time;
  3. suspending the suspected perpetrator or granting temporary leave of absence to the staff member or student who made the report.

(25) Any action taken to minimise or control risk of reprisals is intended to be a risk management strategy only, not a punishment or sanction.  It should be decided in consultation with the person who made the report and, if the suspected perpetrator is a University staff member, in accordance with the relevant staff agreement.

(26) A person who believes that reprisal action is not being dealt with effectively should contact:

  1. the Principal Officer or the Disclosure Coordinator;
  2. the Independent Commission Against Corruption; or
  3. the NSW Ombudsman.
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Section 9 - External Reporting

(27) A report may be made to one of the following investigating authorities before, after or instead of, a report to a Disclosure Officer:

  1. NSW Independent Commission Against Corruption for reports about corrupt conduct;
  2. NSW Ombudsman for reports about maladministration;
  3. NSW Auditor General for reports about serious or substantial waste; or
  4. NSW Information Commissioner for reports about a breach of the Government Information (Public Access) Act 2009.

(28) The University will assist and cooperate with an investigating authority to ensure reports are dealt with appropriately and any recommendations are implemented, as appropriate.

(29) Reports that qualify as public interest disclosures and made to a journalist or a member of Parliament are also protected by the Public Interest Disclosure Act 1994, but only if:

  1. that public official has already made substantially the same disclosure through the internal reporting system or to an investigating authority in accordance with the Act;
  2. the investigating authority, public authority or officer to whom the matter was originally referred has:
    1. decided not to investigate the matter; or
    2. decided to investigate the matter but has not completed the investigation within six months of the original disclosure being made; or
    3. investigated the matter but has not recommended the taking of any action in respect of the matter; or
    4. failed to notify the person making the disclosure, within six months of the disclosure being made, of whether or not the matter is to be investigated; and
    5. that public official has reasonable grounds for believing the disclosure is substantially true; and
    6. the disclosure is in fact substantially true.
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Section 10 - Protection Against Legal Liability

(30) Under the Act, a public official is not subject to any liability for making a public interest disclosure, and no action, claim or demand may be taken or made of or against the person for making that disclosure. This is despite any duty of secrecy or confidentiality or any other restriction on disclosure by a public official.

(31) A person who has made a public interest disclosure under the Act also:

  1. has a defence of absolute privilege in proceedings for defamation;
  2. is taken not to have committed any offence under another law that imposes a duty to maintain confidentiality with respect to any information disclosed; and
  3. is not liable to disciplinary action because of that disclosure.

(32) The protection under the Act is essentially a protection against reprisals that may be made against a public official because he or she has made a disclosure.  However, this does not extend to any wrongdoing on the part of that public official.

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Section 11 - Review of Policy and Procedures

(33) The Policy and these Procedures shall be reviewed periodically to ensure these comply with the requirements of the Public Interest Disclosures Act 1994 and are an effective means of encouraging disclosures of wrongdoing throughout the University.