|Protected Disclosure Procedures
| Document No:
| Approval Date:
|| 14 July 2016
| Approved By:
| Review Date:
|| 30 July 2018
| Responsible Officer: General Manager Corporate Services
|| Version No:
| Authorising Officer:
|| Chief Executive Officer
This procedure establishes a system for reporting disclosures of improper conduct or detrimental action by the City of Greater Geelong or its employees. The procedure enables such disclosures (by employees or members of the public) to be made to the Protected Disclosure Co-ordinator.
The procedure complements the existing communication channels between supervisors and employees whereby employees are encouraged in the first instance to raise matters of concern with their supervisors.
However, where such communications are not an appropriate, employees may make a disclosure of improper conduct or detrimental action under the Protected Disclosure Act 2012 (the Act), in accordance with these procedures.
The City of Greater Geelong is committed to the aims and objectives of the Act in that it does not tolerate improper conduct by officers or employees, or the taking of reprisals against those who come forward to disclose such conduct.
The City of Greater Geelong recognises the value of transparency and accountability in its administrative and management practices, and supports the making of disclosures that reveal corrupt conduct, conduct involving a substantial mismanagement of public resources, or conduct involving a substantial risk to public health and safety or the environment.
The City of Greater Geelong will take all reasonable steps to protect people who make such disclosures from any detrimental action in reprisal for making the disclosure. It will also afford natural justice to the person who is the subject of the disclosure.
- Protected Disclosure Act 2012,
- Victorian Ombudsman Investigations Guidelines 2016
- Fraud Control and Reporting Policy –MPL550.3.2
- Councillor Code of Conduct –CPL40.7
- Staff Code of Conduct – MPL550.0.20
- Disciplinary Policy – MPL555.0.5
- Internal Ombudsman Investigation Process – MPR184.108.40.206
- Privacy and Data Protection Act 2014
4.1 Protected Disclosure Co-ordinator – Internal Ombudsman and Governance Advisor. Support can be provided by the Manager, Internal Audit in the absence of the Protected Disclosure Co-ordinator.
4.2 Welfare Officer –the Manager, Organisation Development will appoint an officer to provide welfare and support services to persons who make protected disclosures and seek assistance. The officer will be trained in all protected disclosures procedures and will maintain the confidentiality of the person making the disclosure.
4.3 Natural Justice – the procedures for handling and investigating protected disclosures will be conducted with procedural fairness and without bias. All parties will be given a fair opportunity to present their case. Natural justice ensures a fair decision is reached by an objective decision maker.
4.4 Improper conduct
Improper conduct means:
Specified conduct that is not corrupt conduct but that, if proved, would constitute:
- i. a criminal offence; or
- ii. reasonable grounds for dismissal of an officer of Council.
4.5 Corrupt conduct
Corrupt conduct means conduct:
a) of any person (whether or not a public official) that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body;
b) of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body;
c) of a public officer or a public body that constitutes or involves knowingly or recklessly breaching public trust;
d) of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or
e) that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c) or (d) above—
- being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.
4.6 Specified conduct
Specified conduct means corrupt conduct or conduct of a public officer or public body in his or her capacity as a public officer or its capacity as a public body that-
- (i) involves substantial mismanagement of public resources; or
- (ii) involves substantial risk to public health or safety; or
- (iii) involves substantial risk to the environment.
4.7 Detrimental Action
The Act makes it an offence for a person to take detrimental action against a person in reprisal for a protected disclosure. Detrimental action includes:
- Action causing injury, loss or damage;
- Intimidation or harassment; and
- Discrimination, disadvantage or adverse treatment in relation to a person's employment, careers, profession, trade or business, including the taking of disciplinary action.
5 Procedure Description
This Procedure provides instructions on the reporting and processing of disclosures of improper conduct or detrimental action by the Council or its employees.
It further establishes a system for investigation of disclosures and protection of any person who makes a disclosure within the terms of the Protected Disclosure Act 2012.
6.1 Authorities & Responsibilities
6.1.1 Employees are encouraged to report known or suspected incidents of improper conduct or detrimental action in accordance with this procedure. Reports can be made directly to the Protected Disclosure Co-ordinator or if the employee prefers, to the employee’s Manager.
6.1.2 Managers will immediately report disclosures to the Protected Disclosure Co-ordinator for determination.
6.1.3 The Protected Disclosure Co-ordinator 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 (from internal and external whistleblowers);
- 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’);
- Be a contact point for general advice about the operation of the Act and for integrity agencies such as IBAC;
- Be responsible for ensuring that the Council carries out its responsibilities under the Act and the Guidelines;
- Liaise with IBAC in regard to the Act;
- Take all necessary steps to ensure the identity of the person making the disclosure and the identity of the person who is the subject of the disclosure are kept confidential;
- Be responsible for overseeing and coordinating an investigation where the matter is not considered to be a protected disclosure;
- Refer the person making the disclosure to the Welfare Officer if required, to support the person making the disclosure and to protect them from any reprisals;
- Establish and manage a confidential filing system;
- Collate and publish statistics on disclosures made; and
- Liaise with the Chief Executive Officer.
6.1.4 The Welfare Officer is responsible for looking after the general welfare of the person making a protected disclosure.
The Welfare Officer will:
- Examine the immediate welfare and protection needs of a person making a protected disclosure who has made a disclosure and seek to foster a supportive work environment;
- Advise the person making a protected disclosure of the legislative and administrative protection's available to him or her;
- Listen and respond to any concerns of harassment, intimidation or victimisation in reprisal for making disclosure;
- Keep a thorough record of all aspects of the case management of the person making a protected disclosure, including all contact and follow up action; and
- Ensure the expectations of the person making a protected disclosure are realistic.
Council will take all reasonable steps to protect the identity of the person making a protected disclosure, maintaining confidentiality is crucial in ensuring reprisals are not made against the person making a protected disclosure.
All files pertaining to a reported incident, (whether paper or electronic), shall be secured and only be accessed by the Protected Disclosure Coordinator, the IBAC, appointed investigator or Welfare Officer (in relation to welfare matters).
All printed material will be kept in files that are clearly marked as a “Protected Disclosure Act Matter” and warn of the criminal penalties that apply to any unauthorised divulging information concerning a protected disclosure.
Any electronic files will be saved appropriately ensuring security through password protection.
All materials relevant to an investigation, such as tapes from interviews, will also be stored securely with the Protected Disclosure files.
Persons who make protected disclosures must not reveal to any other person who is not the Protected Disclosure Co-ordinator, the IBAC investigator or investigator appointed under these procedures, the Welfare Officer, or the CEO the content of the protected disclosure unless the content of the protected disclosure is in the public domain through no fault of the person making the protected disclosure.
6.2 Procedure Instructions
6.2.1 How to report suspected corruption (Refer to Attachment 1)
220.127.116.11 Disclosures of improper conduct or detrimental action by the City of Greater Geelong or its employees, should be made to the Protected Disclosure Co-ordinator or the CEO or to the IBAC.
18.104.22.168 All correspondence, phone calls and emails from internal or external persons making a protected disclosure will be referred to the Protected Disclosure Co-ordinator.
22.214.171.124 Disclosures of improper conduct or detrimental action by a Councillor or the Chief Executive Officer, must be made to:
Telephone: 1300 735 135
Fax : (03) 8635 6444
Written disclosures can be hand delivered to:
Level 1, North Tower, 459 Collins Street, Melbourne, VIC 3001
Mail to IBAC, GPO Box 24234, Melbourne, VIC 3000
Or by using the online complaints form:
The Ombudsman Victoria
459 Collins Street
Melbourne Victoria 3000
Tel: (03) 9613 6222
Toll Free: 1800 806 314
6.2.2 Receiving and assessing disclosures
126.96.36.199 Where the Protected Disclosure Co-ordinator has received a disclosure, it will be assessed as to whether the disclosure has been made in accordance with Part 2 of the Act and is, therefore, a protected disclosure.
188.8.131.52 The Protected Disclosure Co-ordinator will respond to complaints about an employee or officer of the Council. If the disclosure concerns an employee, officer or member of another public body, the person who has made the disclosure must be advised of the correct person or body to whom the disclosure should be directed.
184.108.40.206 To be a protected disclosure, a disclosure must satisfy the following criteria:
- Did a natural person (that is, an individual person rather than a corporation) make the disclosure?
- Does the disclosure relate to conduct of a public body or public officer acting in their official capacity?
- Is the alleged conduct either improper conduct or detrimental action taken or proposed to be taken against a person in reprisal for making a protected disclosure?
- Does the person making a disclosure have reasonable grounds for believing the alleged conduct has occurred?
220.127.116.11 Where a disclosure is assessed not to be a protected disclosure, the matter does not need to be dealt with under the Act. The Protected Disclosure Co-ordinator will decide how the matter should be responded to in line with existing Council policies and procedures, such as the staff and councillor code of conduct policies.
18.104.22.168 If the disclosure is not considered to be a protected disclosure, the Protected Disclosure Co-ordinator will notify the person who made the disclosure that the disclosure:
- Has been determined not a ‘protected disclosure’;
- Has not been referred to the IBAC; and where the person has either indicated to Council; or it otherwise appears to Council that the person wishes to receive the protections that apply to a protected disclosure, then the protections available to persons making disclosures will still apply.
22.214.171.124 The Council considers that the protections available under the Protected Disclosure Act 2012 apply to persons making protected disclosures as there may be circumstances where it is later determined the disclosure should have been referred to the IBAC as a protected disclosure.
126.96.36.199 If the disclosure is determined to be a protected disclosure the Protected Disclosure Co-ordinator will:
- Refer the disclosure to the IBAC within 28 days of receiving the disclosure; and
- Notify the person who made the disclosure that it has been referred to the IBAC.
188.8.131.52 Where the Protected Disclosure Co-ordinator determines that a disclosure is not a protected disclosure pursuant to Part 2 of the Act, the Protected Disclosure Co-ordinator may carry out an investigation or may appoint an investigator. The objectives of an investigation will be:
- To collate information and take steps to protect or preserve documents, materials and equipment;
- To consider the information collected and to draw conclusions objectively and impartially;
- To maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure; and
- To make recommendations arising from the conclusions drawn concerning remedial or other appropriate action.
184.108.40.206 The Protected Disclosure Co-ordinator will address the following issues:
- What is being alleged?
- How is the inquiry to be conducted?
- What are the facts in issue?
- What are the possible findings or offences?
- What resources are required?
220.127.116.11 At the commencement of the investigation, the person making the disclosure should be:
- Notified by the investigator that he or she has been appointed to conduct the investigation;
- Asked to clarify any matters; and
- Provide any additional material he or she might have.
18.104.22.168 The principles of natural justice will be followed in any investigation of a disclosure and will have regard to the following issues in ensuring procedural fairness:
- The person who is the subject of the disclosure is entitled to know the allegations made against him or her and must be given the right to respond.
(This does not mean the person must be advised of the allegation as soon as the disclosure is received or the investigation has commenced).
- Confidentiality of the person making the protected disclosure will be preserved.
- If the investigator is contemplating making a report adverse to the interests of any person, that person should be given the opportunity to put forward further material that may influence the outcome of the report and that person’s defence should be fairly set out in the report;
- All relevant parties to a matter should be heard and all submissions should be considered;
- A decision should not be made until all reasonable inquiries have been made;
- The investigator or any decision maker should not have a personal or direct interest in the matter being investigated;
- All proceedings must be carried out fairly and without bias. Care should be taken to exclude perceived bias from the process; and
- The investigator must be impartial in assessing the credibility of the person making the disclosure and any witnesses. Where appropriate, conclusions as to credibility should be included in the investigation report.
22.214.171.124 The investigator will make notes of all discussions and phone calls, and all interviews with witnesses may be taped. All information gathered in an investigation will be stored securely. Interviews will be conducted in private and the investigator will take all reasonable steps to protect the identity of the person making the disclosure.
126.96.36.199 It is in the discretion of the investigator to allow any witness to have legal or other representation or support during an interview. If a witness has a special need for legal representation or support, permission should be granted.
6.2.4 Final report
188.8.131.52 At the conclusion of the investigation, the Protected Disclosure Co-ordinator will prepare a report containing:
- The allegation/s:
- An account of all relevant information received and, if the investigator has rejected evidence as being unreliable, the reasons for this opinion being formed;
- The conclusions reached and the basis for them; and
- Any recommendations arising from the conclusions
184.108.40.206 Where the investigator has found that the conduct disclosed by the person making the disclosure has occurred, recommendations made by the investigator will include:
- The steps that need to be taken to prevent the conduct from continuing or occurring in the future; and
- Any action that should be taken to remedy any harm or loss arising from the conduct. This action may include bringing disciplinary proceedings against the person responsible for the conduct, and referring the matter to an appropriate authority for further consideration.
220.127.116.11 The report will be accompanied by:
- The transcript or other record of any oral evidence taken, including tape recordings; and
- All documents, statements or other exhibits received by the officer and accepted as evidence during the course of the investigation.
18.104.22.168 Where the investigator’s report is to include an adverse comment against any person, that person will be given the opportunity to respond and his or her defence will be fairly included in the report.
The report will not disclose particulars likely to lead to the identification of the person making the disclosure.
6.2.5 Action to be taken
22.214.171.124 If the Protected Disclosure Co-ordinator is satisfied that the investigation has found that the disclosed conduct has occurred, he or she will recommend to the Chief Executive Officer the action that must be taken to prevent the conduct from continuing or occurring in the future.
The Protected Disclosure Co-ordinator may also recommend that action be taken to remedy any harm or loss arising from the conduct.
126.96.36.199 Where the investigation concludes that the disclosed conduct did not occur, the Protected Disclosure Co-ordinator will report these findings to the Chief Executive Officer and to the person making the disclosure.
6.2.6 Managing the welfare of the person making the disclosure and person who is the subject of the disclosure.
188.8.131.52 All employees will be advised that it is an offence for a person to take detrimental action in reprisal for a protected disclosure. The maximum penalty is a fine of 240-penalty units or two years imprisonment or both (or as amended by the Act).
The taking of detrimental action in breach of this provision can also be grounds for making a disclosure under the Act and can result in an investigation.
184.108.40.206 The Protected Disclosure Co-ordinator and Welfare Officer shall have regard to guidelines established by the IBAC in managing the interests of the person making the disclosure and the person against whom the disclosure has been made. This may include:
- If the person is aware that they are the subject of an investigation, they must be informed of the outcomes
- The person who is the subject of the disclosure, should be given adequate information as to their rights and obligations under the Act, including support such as employee assistance programs during the investigation
- If the allegations are clearly found to be wrong or unsubstantiated, the person who is the subject of the disclosure will be supported by Council.
6.2.7 Collating and publishing statistics
220.127.116.11 The Protected Disclosure Co-ordinator will establish a secure register to record the information required to be published in the City of Greater Geelong annual report, and to generally keep account of the status of disclosures.
The register will be confidential and will not record any information that may identify the person making the disclosure.
18.104.22.168 The register will contain the following information:
- information about how to access the procedures established by the Council under Part 9 of the Act;
- The number of disclosures referred to the IBAC for determination as to whether they are protected disclosures;
7 Quality Records
Quality Records shall be retained for at least the period shown below.