e MONASH University

Peter Marshall Chief Operating Officer and Senior Vice-President Office of the Chief Operating Officer

27 April 2016

CONFIDENTIAL

Hon Kim Wells MP

Chair

Independent Broad-based Anti-corruption Commission Committee

Parliament of Victoria

ibacc@parliament.vic.gov.au

Dear Member Wells,

Submission to Parliamentary IBAC Committee on the Protected Disclosure Act 2012 {Vic)

I refer to your letter addressed to the Vice-Chancellor dated 4 April 2016. You have sought insights that

the University's Protected Disclosure Coordinator can provide on your examination of the operation of

the Protected Disclosure Act 2012 {Vic), with a view to identifying how it could be improved.

As the Protected Disclosure Coordinator for Monash University, I provide the following submission for

the Committee to consider.

You have sought responses to the following questions, which I address in turn.

1. What works well in the current Protected Disclosure Act 2012 {Vic)?

The retention of the Protected Disclosure Coordinator as the single liaison point between the

Ombudsman or the IBAC's office has worked extremely well. Appropriate and sensitive handling

of a protected disclosure requires careful selection of the officer within the University to lead its

handling of a matter, to give priority to confidentiality and protecting persons who may be

targeted for detrimental action. The use of a single point of contact within the University enables

this priority for issues raised under the Act, and for the University to fulfil important legal

obligations.

Other changes that are most welcome are the clarification that a person or organisation seeking

legal advice is not a breach of the confidentiality provisions, nor is a person speaking

confidentially to their spouse or manager.

Postal- Monash University, VIC 3800, Australia Clayton Campus, Wellington Road, Clayton Telephone +61 3 9902 9897 Email peter.marshall@monash.edu www.monash.edu CRICOS Provider No.00008C ABN 12 377 614 012

Also welcome is the clarity around the grounds on which the IBAC and Ombudsman may cease

dealing with a disclosure, and the clarification in the context of an ongoing employment

relationship of conduct that is not detrimental action.

2. What are some of the challenges with the Protected Disclosure Act 2012 (Vic)?

I describe under points 3 and 4 below details of the following challenges experienced by the

University:

• the University has been less responsive to a notification due to it no longer being able to

receive a protected disclosure, and then needing to inform notifier of the process to

follow if they seek protections under the Act;

• the University's preliminary discussions with a notifier to tell them to approach the

Ombudsman or the IBAC, leaves the person unprotected by the statutory protections in

the Act;

• the dilemma about whether the Ombudsman or IBAC may have an investigation

underway of which the University is unaware, and where the University is on notice of

allegations it feels compelled to investigate under its own Fraud and Corruption

Procedures;

• the lack of information provided to the University about the identity of persons needing

protection from detrimental action, which impairs the ability of the University to provide

this important protection.

3. Was the agency previously able to receive disclosures under the Whistleblower Protection Act

2001 (Vic)?

Yes.

a. If so, how does this new regime compare?

The University's experience of the new regime of an investigation led by the Ombudsman

or IBAC has been favourable. Officers liaising with the University have been professional

and appropriate in their dealings with the University, providing satisfactory information

and guidance on how the University can support their investigation, and not adopting an

adversarial approach which has been an issue for the University in the past.

b. What are the benefits of not receiving disclosures?

A benefit of not receiving or investigating complaints is that it limits the diversion of

University resources to these functions.

c. Are there any challenges?

Yes, and they are significant and in my view outweigh the benefit described above.

The inability for the University to receive a disclosure delays the commencement of an

investigation into a protected disclosure, and possible reso lution of a very difficult issue for the

notifier and the University.

The inabi lity for the University to receive a disclosure means that when a person discloses first to the University, this disclosure does not attract the protections and confidentiality obligations in the Act. In the University's experience it is common that a person (particularly a staff member) w ill first approach the University with their disclosure and not the Ombudsman or the IBAC.

While the University will inform a person that to receive statutory protection under the Act they must notify their disclosure to the Ombudsman or the IBAC, the University has no way of knowing whether this advice was followed . And so the University has no way of knowing whether to activate its own investigation of the alleged conduct under Monash University Fraud and Corruption Procedures to ensure the matter raised is dealt w ith.

It would be preferable if there were protections for a notifier approaching the University with their concerns as well as approaching the Ombudsman or the IBAC, and so a person's decision to approach the University first would not diminish their legal rights and protections as currently occurs. This is a disadvantage to the notifier resulting only from their natural propensity to notify a person or organisation known to them, in preference to one with whom they have usually had no prior dealings.

4. The Protected Disclosure Act 2012 {Vic) established a new regime where only a limited number

of agencies can investigate protected disclosure complaints.

a. Is this new process beneficial?

The retention of the ability for the Vice-Chance llor to voluntarily notify the Ombudsman or

the IBAC of concerns about corruption that the powers of a university are not equipped to

investigate is welcome. The University can envisage that there could be situations where

the independence and powers that vest in the Ombudsman or the IBAC are needed for the

University to fully investigate and uncover concerns about corruption. The University

would in this situation be reassured by its ability to access the expertise and powers of

these bodies to stamp out corruption that it has been unable to arrest or prevent through

its own interna l governance mechanisms.

b. Are there any challenges arising from not being able to internally investigate disclosures?

Are there any benefits?

If the University has been notified of a disclosure and provides advice to the person about

the Act processes, t here needs to be a process for the Ombudsman or the IBAC to inform

the University that it is dealing with the matter. This is necessary to avoid any action by the

University to investigate the disclosure under its Fraud and Corruption Procedures

interfering with the activities of t he Ombudsman or the IBAC, and possibly contravening

the Act. Currently there is no such process in place and the risk of paralle l investigations is

high.

Where the University is aware that the Ombudsman or the IBAC is investigating a protected

disclosure, there is no process for the Ombudsman or the IBAC to inform Monash ofthe

identity of a person who may need to be protected from detrimental action. This is

problematic given it is common in the University's experience for a person who approaches

the Ombudsman or the IBAC to first make direct contact with the University about their

concerns. In this situation the University may have a belief about who is the protected

discloser, but no confirmation. It is also common that others affected guess (rightly or

wrongly) who the notifier may have been that triggered an investigation. Proactive

protections and monitoring may be required in these cases.

To act on its obligations to protect confidentiality and prevent detrimental action, the

University needs greater certainty about the matters it is dealing with in these situations.

The current Protected Disclosure Act 2012 (Vic) has been described as a 'complicated legislative environment'. Are there any challenges arising from the complexity of the process set out in the Act?

Yes. The separation of the regime previously found in a single instrument into at least 3 pieces of

intersecting legislation is unduly complex: being the Protected Disclosure Act, the IBAC Act and

the Victorian Inspectorate Act.

While the regime establishing a new statutory body and a new statutory office will necessarily

involve more sections in an Act than existed for the Whistleblower Protection Act 2001, it is

difficult to understand why there couldn't be a single consolidated Act to deal with the State

institutions and regimes appointed to investigate corruption in Victoria .

5. Do you have any further issues, concerns or suggestions relating to the Protected Disclosure Act 2012 {Vic)?

Monash University had for many years robust and effective processes for receiving and

investigating allegations of fraud and misconduct, including protected disclosures, and worked

cooperatively with the Ombudsman as occasions arose to uncover conduct underlying such

notifications.

While the University welcomed the introduction of the IBAC and its specialist functions to

enhance this regime, it was surprised to have its power to make a direct contribution to

eliminating corruption removed by the new Act.

The University would welcome the Parliament asserting its confidence in the integrity priorities of

Victorian universities and restoring their power to receive and investigate protected disclosures.

This would also address the unintended negative consequences I have identified in this

submission for, in particular, persons wishing to make a disclosure.

Thank you for the invitation and opportunity to make this submission to the Committee. Should you

seek any further information please contact me o

Yours sincerely,

Peter Marshall Chief Operating Officer & Senior Vice-President