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Public Interest (Protected) Disclosures Policy

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Section 1 - Purpose and Context

(1) The purpose of the Public Interest Disclosures Act 1994 is to ensure that public officials which includes University employees, who wish to make disclosures under the legislation receive protection from reprisals, and that the matters raised in the disclosures are properly investigated.

(2) The Act aims to encourage and facilitate the disclosure - in the public interest - of corrupt conduct, maladministration, serious and substantial waste in the public sector, and government information contravention. This is achieved by:

  1. enhancing and augmenting established procedures for making disclosures concerning such matters;
  2. protecting persons from reprisals that might otherwise be inflicted on them because of these disclosures; and
  3. providing for those disclosures to be properly investigated and dealt with.

(3) This policy establishes an internal reporting system for the reporting of disclosures of: corrupt conduct; maladministration; serious and substantial waste of public money; or information contravention by Western Sydney University or its staff. The system enables such internal disclosures to be made to the disclosure coordinator or a nominated disclosure officer or to the principal officer, the Vice-Chancellor and President. This Policy should be read in conjunction with the Corruption and Fraud Prevention Strategy.

(4) This policy is designed to complement normal communication channels between supervisors and staff. Staff are encouraged to continue to raise appropriate matters at any time with their supervisors, but as an alternative have the option of making a protected disclosure in accordance with this policy.

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Section 2 - Definitions

(5) Four key concepts in the internal reporting system are 'corrupt conduct', 'maladministration', 'serious and substantial waste of public money', and 'information contravention'. Definitions of these concepts are outlined below.

  1. Corrupt conduct is defined in the Independent Commission Against Corruption Act (s.8 and 9). The definition used in the Act is intentionally quite broad. Corrupt conduct is defined to include the dishonest or partial exercise of official functions by a public official. Conduct of a person who is not a public official, when it adversely affects the impartial or honest exercise of official functions by a public official, also comes within the definition.
    1. Corrupt conduct can take many forms, i.e. taking or offering bribes, public officials dishonestly using influence, blackmail, fraud, election bribery and illegal gambling are some examples.
  2. Maladministration is defined in the Public Interest Disclosures Act (s.11[2]) as conduct that involves action or inaction of a serious nature that is: contrary to law; unreasonable, unjust, oppressive or improperly discriminatory; or based wholly or partly on improper motives.
  3. Serious and substantial waste. The term 'serious and substantial waste' is not defined in the Public Interest Disclosures Act. The NSW Auditor-General's working definition is that serious and substantial waste refers to the uneconomical, inefficient or ineffective use of resources, authorised or unauthorised, which results in a loss/wastage of public funds/resources. In addressing any complaint of serious and substantial waste regard will be had, to the nature and materiality of the waste.
  4. Information contravention. Refers to a failure to properly fulfil functions under the Government Information (Public Access) Act 2009 (GIPA Act) such as acting improperly or making decisions contrary to the GIPA Act.

(6) For more information on the meaning of these terms refer to section 4 below and the NSW Ombudsman's Guideline "What Should be Reported" located under the Associated Information menu tab.

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Section 3 - Policy Statement

(7) The University does not tolerate corrupt conduct, maladministration, serious and substantial waste of public money, or Government Information contravention. The University is committed to the aims and objectives of the Public Interest Disclosures Act. It recognises the value and importance of contributions of staff to enhance administrative and management practices and strongly supports disclosures being made by staff.

(8) The University will take all reasonable steps to provide protection to staff who make such disclosures from any detrimental action in reprisal for the making of the disclosure.

(9) The Public Interest Disclosures Act is designed to deal with disclosures about serious matters about public administration. A disclosure is not covered by the Act if:

  1. it is made solely or substantially with the motive of avoiding dismissal or other disciplinary action; or
  2. it principally involves questioning the merits of government policy.

(10) Making a disclosure in accordance with the scheme in the Public Interest Disclosures Act gives staff the best chance of helping the University to remedy the situation. The scheme encourages all those involved to focus on the issues (not the people) involved.

(11) This policy will also be applied by the University to disclosures made by staff in relation to its controlled entities but in recognition of the requirements of the Corporations Act placed on those entities. In like manner disclosures made by students and other non-employees will also be afforded protection from reprisals but it must be understood that non employees do not have the formal legal protection conferred under the Act.

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Section 4 - Procedures

What should be Reported

(12) You should report any wrongdoing you see within the University and the processes for this are outlined in the Corruption and Fraud Prevention Strategy.

(13) Reports about the four categories of serious wrongdoing - corrupt conduct, maladministration, serious and substantial waste of public money, and information contravention - can be dealt with under the Public Interest Disclosures Act as protected disclosures where requested by the person making the disclosure according to this policy.

Corrupt Conduct

(14) Corrupt conduct is the dishonest or partial exercise of official functions by a public official. For example, this could include:

  1. the improper use of knowledge, power or position for personal gain or the advantage of others
  2. acting dishonestly or intentionally unfairly, or breaching public trust
  3. a member of the public influencing or trying to influence a public official to use their position in a way that is dishonest, biased or breaches public trust.

Maladministration

(15) Maladministration is conduct that involves action or inaction of a serious nature that is contrary to law, unreasonable, unjust, oppressive or improperly discriminatory or based wholly or partly on improper motives. For example, this could include:

  1. making a decision and/or taking action that is unlawful
  2. refusing to grant someone a licence for reasons that are not related to the merits of their application.

Serious and Substantial Waste of Public Money

(16) Serious and substantial waste is the uneconomical, inefficient or ineffective use of resources that could result in the loss or wastage of public resources. For example, this could include:

  1. not following a competitive tendering process for a large scale contract;
  2. having bad or no processes in place for a system involving large amounts of public funds.

Information Contravention

(17) An information contravention is a failure to properly fulfil functions under the Government Information (Public Access) Act 2009 (GIPA Act). For example, this could include:

  1. destroying, concealing or altering records to prevent them from being released
  2. knowingly making decisions that are contrary to the legislation
  3. directing another person to make a decision that is contrary to the legislation.

(18) For more information about these categories of wrongdoing, see the NSW Ombudsman's guideline on what can be reported.

Other Wrongdoing

(19) Although reports about the four categories of conduct above can attract the specific protections of the Public Interest Disclosures Act, you should report all activities or incidents that you believe are wrong.

(20) These types of issues should be reported to a supervisor or the relevant operational area of the University or in accordance with the processes outlined in the Complaint Handling and Resolution Policy. Even where the reports are not protected disclosures, the University will consider each matter and make every attempt to protect the staff member making the report from any form of reprisal.

What Disclosures are Protected?

(21) The University will support any staff member who reports wrongdoing. For a report to be considered a protected disclosure, it has to meet all of the requirements of the Act which are that:

  1. The person making the disclosure must honestly believe on reasonable grounds that the information shows or tends to show wrongdoing. For more information about the meaning of these terms, see the NSW Ombudsman's guideline on what can be reported; and
  2. It is made to the Vice-Chancellor and President as the principal officer of the University; or to the Disclosure Coordinator or a Disclosures Officer; or
  3. to one of the investigating authorities nominated in the Act which for the University are the ICAC, the NSW Ombudsman, the NSW Auditor General, or the NSW Information Commissioner; and
  4. It is made by a public official (i.e. a University employee); and
  5. is made voluntarily.

Reporting Under the Internal Reporting System

(22) The positions to whom internal disclosures can be made in accordance with this policy are:

  1. the Disclosure Co-ordinator, who is:
    1. the University Secretary and General Counsel; or
    2. the Vice-President, People and Advancement, 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 wrongdoing;
  2. a nominated Disclosure Officer, as follows:
    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 wrongdoing;
    2. the Director, Governance Services;
    3. the Company Secretary, Entities and Associate Director Secretariat;
    4. the Manager, Complaints Resolution.

(23) When a public interest (protected) disclosure is made by a person, the Disclosure Coordinator, a Disclosure Officer or the Vice-Chancellor and President (refer to Clause 32) will provide the person with a copy of this policy and as acknowledgement of the receipt of the disclosure within 45 calendar days of the making of it.

(24) Where persons contemplating making a disclosure are concerned about publicly approaching the Disclosure Co-ordinator or a Disclosure Officer or the Vice-Chancellor and President, they can ring the relevant officer and request a meeting away from the workplace.

Part A - Roles and Responsibilities

(25) The internal reporting requirements of this Policy place responsibilities upon people at all levels within the University. The Internal Reporting System Flowchart outlines the framework for internal reporting and handling of protected disclosures.

Employees

(26) Employees are encouraged to report known or suspected incidences of wrongdoing in accordance with this Policy.

(27) All employees of the University have an important role to play in supporting those who have made legitimate disclosures. They must abstain from any activity that is or could be perceived to be victimisation or harassment of persons who make disclosures. Further, they should protect/maintain the confidentiality of persons they know or suspect to have made disclosures.

(28) Any supervisor who receives a report which they believe may be a protected disclosure must refer the staff member making the report to the positions nominated in this Policy.

Nominated Disclosure Officers

(29) Nominated Disclosure Officers are responsible for receiving, forwarding and or acting upon disclosures in accordance with the Policy. Nominated Disclosure Officers will:

  1. clearly explain to persons making disclosures what will happen in relation to the information received;
  2. when requested, make arrangements to ensure that disclosures can be made privately and, if necessary, away from the workplace;
  3. reduce to writing and date any disclosures received orally (and have the person making the disclosure sign the document);
  4. deal with disclosures impartially;
  5. promptly forward all disclosures to the Disclosure Co-ordinator for assessment;
  6. take all necessary and reasonable steps to ensure that the identity of persons who make disclosures, and the persons the subject of disclosures, are kept confidential; and
  7. support persons who make disclosures and protect them from victimisation, harassment or any other form of reprisal.

Disclosure Co-ordinator

(30) The Disclosure Co-ordinator has a pivotal position in the internal reporting system and acts as a clearinghouse for disclosures. The Disclosure Co-ordinator provides an alternative internal reporting channel to Nominated Disclosure Officers and to the Vice-Chancellor and President.

(31) The Disclosure Co-ordinator must impartially assess each disclosure to determine whether the disclosure appears to be a protected disclosure within the meaning of the Act; and determines the appropriate action to be taken in relation to the disclosure, for example:

  1. No action/decline;
  2. The appropriate person to take responsibility for dealing with the disclosure;
  3. Preliminary or informal investigation;
  4. Formal investigation;
  5. Prosecution or disciplinary action;
  6. Referral to an investigating authority for investigation or other appropriate action; or
  7. Referral to the police (if a criminal matter) or the ICAC (if the matter concerns corrupt conduct).
  8. Consult with the Vice-Chancellor and President;
  9. Be responsible for the carrying out or co-ordination of any internal investigation arising out of a disclosure, subject to the direction of the Vice-Chancellor and President in carrying out his/her functions;
  10. Report to the Vice-Chancellor and President on the findings of any investigation and recommended remedial action;
  11. Take all necessary and reasonable steps to ensure that the identity of persons who make disclosures, and persons the subject of the disclosures, are kept confidential;
  12. Support persons who make disclosures and actively protect them from victimisation, harassment or any other form of reprisal; and
  13. Report actual or suspected corrupt conduct to the Vice-Chancellor and President in a timely manner to enable that officer to comply with the ICAC Act.

Principal Officer

(32) Disclosures may be made direct to the Vice-Chancellor and President, rather than by way of the internal reporting system established under this Policy. The Vice-Chancellor and President must impartially assess each disclosure to determine whether the disclosure appears to be a protected disclosure within the meaning of the Act; and determines the appropriate action to be taken in relation to the disclosure, for example:

  1. No action/decline;
  2. The appropriate person to take responsibility for dealing with the disclosure;
  3. Preliminary or informal investigation;
  4. Formal investigation;
  5. Prosecution or disciplinary action;
  6. Referral to an investigating authority for investigation or other appropriate action; or
  7. Referral to the police (if a criminal matter) or the ICAC (if the matter concerns corrupt conduct).
  8. Receive reports from the Disclosure Co-ordinator on the findings of any investigation and any recommendations for remedial action, and determine what action should be taken;
  9. Take all necessary and reasonable steps to ensure that the identity of persons who make disclosures, and persons the subject of the disclosures, are kept confidential;
  10. Have primary responsibility for protecting staff who make disclosures, or provide information to any internal or external investigation of a disclosure, for victimisation, harassment or any other form of reprisal;
  11. Be responsible for implementing organisational reform identified as necessary following investigation of a disclosure; and
  12. Report criminal offences to the Police and actual or suspected corrupt conduct to ICAC (under s.11 of the ICAC Act).

Part B - Alternative Avenues for Disclosures

(33) Alternative avenues available to staff for making a protected disclosure under the Public Interest Disclosures Act (other than by means of the internal reporting system established under this Policy for the purpose of the Act), are to one of the investigating authorities under the Act (i.e. the ICAC, Ombudsman, Auditor General, the NSW Information Commissioner).

(34) Disclosures may be made to a journalist or a Member of Parliament but will only be protected if certain conditions are met:

  1. The person making the disclosure to a journalist or Member of Parliament must have already made substantially the same disclosure through the internal reporting system or to the Vice-Chancellor and President or an investigating authority in accordance with the Act;
  2. The public official must have reasonable grounds for believing that the disclosure is substantially true and disclosure must be substantially true; and
  3. 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 not completed the investigation within six months of the original disclosure; or
    3. Investigated the matter but not recommended any action in respect of the matter; or
    4. Failed to notify the person making the disclosure, within six months of the disclosure, of whether the matter is to be investigated.

Part C - Rights of Persons the Subject of Disclosures

(35) The rights of persons the subject of disclosures will also be protected. In this regard:

  1. The confidentiality of the identity of persons the subject of disclosures will be protected/maintained (where this is possible and reasonable);
  2. Disclosures will be assessed and acted on impartially, fairly and reasonably;
  3. Responsible officers who receive disclosures in accordance with this Policy are obliged to:
    1. Protect/maintain the confidentiality of the identity of persons the subject of the disclosures;
    2. Assess disclosures impartially; and
    3. Act fairly to persons the subject of disclosures.

(36) Disclosures will be investigated as discreetly as possible, with a strong emphasis on maintaining confidentiality both as to the identity of disclosing officers and the persons the subject of disclosures. The NSW Ombudsman provides guidance on the issue of protected disclosures and confidentiality and a copy of the brochure is available on the University's Protected Disclosure webpage.

(37) Where investigations or other inquiries do not substantiate disclosures, the fact the investigation/inquiry has been carried out, the results of the investigation/inquiry, and the identity of persons the subject of the disclosures will be kept confidential, unless the persons the subject of the disclosures request otherwise.

(38) Persons who are the subject of disclosures (whether protected disclosures under the Act or otherwise) which are investigated by or on behalf of the University, have the right to:

  1. be informed as to the substance of the allegations;
  2. be informed as to the substance of any adverse comment that may be included in a report/memorandum/letter or the like arising out of any such investigation; and
  3. be given a reasonable opportunity to put their case (either orally or in writing) to the persons carrying out the investigation for or on behalf of the authority.

(39) Before any final decision/determination/report/memorandum/letter or the like is made;

  1. Where the allegations in a disclosure have been investigated by or on behalf of the University, and the person the subject of the allegations is aware of the substance of the allegations, the substance of any adverse comment, or the fact of the investigation, he or she should be formally advised as to the outcome of the investigation, regardless of the outcome; and
  2. Where the allegations contained in a disclosure are clearly wrong or unsubstantiated, the person the subject of the disclosure is entitled to the support of the University and its senior management (the nature of the support that would be reasonable and appropriate would depend on the circumstances of the case, but could include a public statement of support or a letter setting out the University's views that the allegations were either clearly wrong or unsubstantiated).

Part D - Protection Available Under the Act

Protection Against Reprisals

(40) The Act provides protection by imposing penalties on a person who takes 'detrimental action' against another person substantially in reprisal for a protected disclosure. Penalties can be imposed by means of fines and imprisonment. 'Detrimental action' means action causing, comprising or involving any of the following:

  1. Injury, damage or loss;
  2. Intimidation or harassment;
  3. Discrimination, disadvantage or adverse treatment in relation to employment;
  4. Dismissal from, or prejudice in, employment; or
  5. Disciplinary proceedings.

(41) In any such proceedings the disclosing officer only need to show that he or she made a protected disclosure and suffered detrimental action. It then lies on the defendant to prove that the detrimental action shown to have been taken against the disclosing officer was not substantially in reprisal for the person making the protected disclosure.

(42) Any member of staff who believes that 'detrimental action' is being taken against them substantially in reprisal for the making of an internal disclosure in accordance with this Policy should immediately bring the allegations to the attention of the Disclosure Coordinator or the Vice-Chancellor and President. If the allegation in some way implicates the Vice-Chancellor and President then the approach should be made to the Chancellor.

(43) If a member of staff who made an internal disclosure feels that such reprisals are not being effectively managed within the University, they should contact the ICAC or the NSW Ombudsman.

(44) If an external disclosure was made to an investigating authority, that body will either deal with the allegation or provide advice and guidance to the person concerned.

Protection Against Actions

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

(46) A person who has made a protected disclosure has a defence of absolute privilege in proceedings for defamation.

(47) A person who has made a protected disclosure is taken not to have committed any offence against an Act which imposes a duty to maintain confidentiality with respect to any information disclosed.

(48) It is important for staff to understand the nature and limits of the protection afforded under the Act. It is essentially a protection against reprisals that may be made against an employee because they have made a disclosure. It is not an indemnity against any wrongdoing on the part of the employee.

Confidentiality

(49) The Act requires investigating authorities, public authorities and public officials to whom protected disclosures are made or referred, not to disclose information that might identify or tend to identify the person who made the disclosures. The exceptions to the confidential requirement are where:

  1. The person consents in writing to the disclosure of that information; or
  2. It is essential, having regard to the principles of natural justice that the identifying information be disclosed to a person whom the information provided by the disclosure may concern; or
  3. The investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or disclosure is otherwise in the public interest.

(50) In all such cases the University will consult with the person who made the disclosure before such a decision is made.

Part E - Notification of Action Taken or Proposed

(51) A person who makes a protected disclosure must be notified, within six months of the disclosure being made, of the action taken or proposed to be taken in respect of the disclosure. If a disclosure is made in accordance with this Policy, the Disclosure Co-ordinator is responsible for the six month notification to the person who made the disclosure, unless this responsibility has been retained by or allocated to another officer by the Vice-Chancellor and President.

(52) The notification provided to the person who made the disclosure should contain sufficient information to demonstrate that adequate and appropriate action was taken, or is proposed to be taken, in respect of the disclosure. This should include a statement of the reasons for the decision made on or action taken in response to the disclosure.

(53) The notification should include sufficient information to enable the person who made the disclosure to make an assessment as to whether the circumstances listed in section 19(3)(a)-(c) of the Act (relating to disclosures to members of Parliament and journalists) apply, i.e. whether:

  1. a decision was made not to investigate the matter; or
  2. a decision was made to investigate the matter, but the investigation has not been completed within six months of the original decision being made; or
  3. the matter was investigated but no recommendation was made for the taking of any action in respect of the matter.

(54) Without such information it would be difficult for the person to be able to properly assess whether it is appropriate or warranted to make a disclosure to an MP or journalist.

Part F - Review

(55) This Policy shall be reviewed periodically to ensure that it meets the object of the legislation, and facilitates the making of disclosures under the Act.

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Section 5 - Guidelines

(56) Guidance about protected disclosures can be accessed at the University's Protected Disclosures web page which contains links to the NSW Ombudsman's web site and from which the following Ombudsman's fact sheet documents can be accessed:

  1. Thinking about reporting serious wrongdoing?
  2. Public Interest Disclosures

(57) The University also has an Internal Reporting System flowchart available.