• Section 1 - Purpose and Context
• Section 2 - Definitions
• Section 3 - Policy Statement
• Section 4 - Procedures
• What disclosures are protected?
• What disclosures are not protected?
• Reporting Under the Internal Reporting System
• Part A - Roles and Responsibilities
• Employees
• Nominated Disclosure Officers
• Disclosure Co-ordinator (Deputy Vice-Chancellor Corporate Strategy and Services )
• Principal Officer (Vice-Chancellor)
• Part B - Alternative Avenues for Disclosures
• Part C - Rights of Persons the Subject of Disclosures
• Part D - Protection Available Under the Act
• Protection Against Reprisals
• Protection Against Actions
• Confidentiality
• Part E - Notification of Action Taken or Proposed
• Part F - Review
• Section 5 - Guidelines

Section 1 - Purpose and Context

(1) The purpose of the Public Interest Disclosures Act 1994 is to ensure that public officials (including 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 and serious and substantial waste in the public sector. 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 or serious and substantial waste of public money by the University of Western Sydney 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.

(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 disclosures in accordance with this policy.

(5) This policy is heavily based on the model Protected Disclosures Policy prepared by the NSW Ombudsman.

Section 2 - Definitions

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

(7) '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.

(8) 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.

(9) 'Maladministration' is defined in the Public Interest Disclosures Act 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. The type of conduct covered by these terms includes:

1. Contrary to law, for example:
   1. Decisions or actions contrary to law
   2. Decisions or actions ultra vires (i.e. the decision-maker had no power to make the decision or to do the act)
   3. Decisions or actions contrary to lawful and reasonable orders from persons or bodies with authority to make or give such orders
   4. Breach of natural justice/procedural fairness
   5. Improper exercise of a delegated power (e.g. decisions or actions not authorised by delegation or acting under the direction of another)
   6. Unauthorised disclosure of confidential information
   7. Decisions or actions induced or affected by fraud
2. Unreasonable, for example:
   1. Decisions or actions inconsistent with adopted guidelines or policy, inconsistent with other decisions or actions which involve similar facts or circumstances not justified by any evidence, or so unreasonable that no reasonable person could so decide or act (i.e. irrational)
   2. Arbitrary, partial, unfair or inequitable decisions or actions
   3. Policy applied inflexibly without regard to the merits of individual cases
   4. Relevant considerations not adequately taken into account or irrelevant considerations taken into account
   5. Serious delay in making decisions or taking action
   6. Failure to give notice of rights
   7. Wrong, inaccurate or misleading advice leading to detriment
   8. Failure to apply the law
   9. Failure to rectify identified mistakes, errors, oversights or improprieties
   10. Decisions or actions based on incorrect or misinterpreted information
   11. Failure to properly investigate
3. Unjust, for example:
   1. Decisions or actions not justified by any evidence, so unreasonable that no reasonable person could so decide or act
   2. Partial, unfair, inequitable or unconscionable decisions or actions
4. Oppressive, for example:
   1. Unconscionable decisions or actions
   2. Means used not reasonably proportional to ends to be achieved
   3. Abuse of power, intimidation or harassment
5. Improperly discriminatory, for example:
   1. Inconsistent application of laws, policies or practices when there is no reasonable, justifiable or appropriate reason to do so
   2. Distinctions applied not authorised by law, or failure to make a distinction which is authorised or required by law
6. Based wholly or partly on improper motives, for example:
   1. Decisions or actions for a purpose other than that for which the power was conferred (i.e. in order to achieve a particular outcome)
   2. Conflicts of interest
   3. Bad faith or dishonesty
   4. Seeking or accepting gifts or benefits in connection with performance of official duties
   5. Misuse of public property, official services or facilities

(10) 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.

(11) The following delineation of the definition of serious and substantial waste may be of assistance to public officials and/or public authorities.

1. Absolute: Serious and substantial waste might be regarded in absolute terms where the waste is regarded as significant, for example $500,000.
2. Systemic: The waste indicates a pattern that results from a system weakness within public authorities.
3. Material: The serious and substantial waste is/was material in terms of the public authority's expenditure or a particular item of expenditure or is/was material to such an extent so as to effect a public authority's capacity to perform its primary functions.
4. Material By Nature Not Amount: The serious and substantial waste mat not be material in financial terms but may be significant by nature. That is may be improper or inappropriate. Alternatively, this type of waste may constitute 'maladministration' as defined in the Public Interest Disclosures Act.

(12) Waste can take many forms, for example:

1. Misappropriation or misuse of public property;
2. The purchase of unnecessary or inadequate goods and services;
3. Too many personnel being employed in a particular area, incurring costs which might otherwise have been avoided;
4. Personnel being remunerated for skills that they do not have, but are required to have under the terms or conditions of their employment;
5. Programs not achieving their objectives and therefore the costs being clearly ineffective and inefficient.

(13) Waste can result from such things as:

1. The absence of appropriate safeguards to prevent the theft or misuse of public property;
2. Purchasing procedures and practices which fail to ensure that goods and services are necessary and adequate for their intended purpose; and
3. Purchasing practices where the lowest price is not obtained for comparable goods or services.

Section 3 - Policy Statement

(14) The University of Western Sydney does not tolerate corrupt conduct, maladministration or serious and substantial waste of public money. 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 that disclose corrupt conduct, maladministration, or serious and substantial waste of public money.

(15) The University of Western Sydney 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.

(16) 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 frivolously or vexatiously;
2. it is made primarily to avoid dismissal or disciplinary action;
3. it contains intentional false statements or is intended to mislead or attempt to mislead the recipient (these are offences under the act);
4. it questions the merits of government policy.

(17) 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.

(18) 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 will also be managed in accordance with this policy but recognising that students may not have the legal protection conferred under the Act.

Section 4 - Procedures

What disclosures are protected?

(19) Disclosures are protected under the Act if they are made:

1. in accordance with this Internal Reporting Policy; or
2. to the Vice-Chancellor as the principal officer of the University; or
3. to one of the investigating authorities nominated in the Act;
   
   and they:
4. show or tend to show corrupt conduct, maladministration, or serious and substantial waste of public money by the University or any of its staff; and
5. are made by a public official (UWS employee) under the Public Interest Disclosures Act; and
6. are made voluntarily.

What disclosures are not protected?

(20) A disclosure is not protected under the Act if it is made by a public official (staff member) in the exercise of a duty imposed by or under an Act.

(21) Protection is also not available for disclosures which:

1. are made frivolously or vexatiously;
2. primarily question the merits of government policy; or
3. are made solely or substantially with the motive of avoiding dismissal or other disciplinary action.

(22) It is also an offence to wilfully make a false or misleading statement when making a disclosure.

Reporting Under the Internal Reporting System

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

1. The Disclosure Co-ordinator, Ms Rhonda Hawkins, Deputy Vice-Chancellor Corporate Strategy and Services, (phone) 02 9678 7819, (fax) 02 9678 7880 or email to r.hawkins@uws.edu.au
2. A Nominated Disclosure Officer
   1. Paul Woloch, Director Policy and Governance, Division of Corporate Strategy and Services (phone) 02 9678 7875, (fax) 02 9678 7880 or email to p.woloch@uws.edu.au
   2. Linda Watson, University Manager Complaints Resolution, Office of PVC Quality, (phone) 02 9678 7465, (mobile) 0405 135 287, (fax) 02 9852 5373 or email to l.watson@uws.edu.au

(24) Where persons contemplating making a disclosure are concerned about publicly approaching the Disclosure Co-ordinator or a Nominated Disclosure Officer or the Vice-Chancellor, they can ring the relevant officer and request a meeting away form 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 corrupt conduct, maladministration or serious and substantial waste in accordance with this Policy.

(27) All employees of University of Western Sydney 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.

Nominated Disclosure Officers

(28) 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 (Deputy Vice-Chancellor Corporate Strategy and Services )

(29) 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.

(30) 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;
9. Be responsible for carrying out or co-ordinating any internal investigation arising out of a disclosure, subject to the direction of the Vice-Chancellor in carrying out his/her functions;
10. Report to the Vice-Chancellor 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 in a timely manner to enable that officer to comply with the ICAC Act.

Principal Officer (Vice-Chancellor)

(31) Disclosures may be made direct to the Vice-Chancellor, rather than by way of the internal reporting system established under this Policy. The Vice-Chancellor 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

(32) 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 the Vice-Chancellor; or to one of the investigating authorities under the Act (i.e. the ICAC, Ombudsman, Auditor General, Police Integrity Commission (PIC), or Inspector of the PIC).

(33) Disclosures made to a journalist or a Member of Parliament 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 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

(34) 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.

(35) 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.

(36) 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.

(37) 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.

(38) 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 an authority, 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 authority 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 authority's views that the allegations were either clearly wrong or unsubstantiated).

Part D - Protection Available Under the Act

Protection Against Reprisals

(39) 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 proceeding.

(40) 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.

(41) 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. If the allegation in some way implicates the Vice-Chancellor then the approach should be made to the Chancellor.

(42) 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.

(43) 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

(44) 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.

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

(46) 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.

Confidentiality

(47) 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.

(48) Decisions about natural justice, effective investigation and public interest will be made by name or position. In all cases the person who made the disclosure will be consulted before such a decision is made. If guidance is needed in relation to the requirements of natural justice, effective investigation and public interest, this may be sought from an investigating authority, such as the Ombudsman or the ICAC.

(49) The Government Information (Public Access) Act 2009 which replaced the Freedom of Information Act also provides a protection against disclosure with respect to these confidentiality provisions.

Part E - Notification of Action Taken or Proposed

(50) 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.

(51) 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.

(52) 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.

(53) 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

(54) 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.

Section 5 - Guidelines

(55) 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 guidance documents can be accessed:

1. Thinking about blowing the whistle?
2. Protection of Whistleblowers - Practical alternatives to confidentiality

(56) The University also has an Internal Reporting System flow chart available.