policy writing - hume.vic.gov.au web viewthe discloser expressly states in writing that the...

PROTECTED DISCLOSURE ACT 2012

Hume City Council - Procedures

______________________File Reference No: HCC14/517Strategic Objective: 5.3 Provide responsible and transparent governance,

services and infrastructure which responds to and supports community needs.

Date of Adoption: 24/08/2015Date for Review: 01/08/2020Responsible Officer: MANAGER CORPORATE SERVICESDepartment: CORPORATE SERVICES

Protected Disclosure Act 2012 (The PD Act) – Procedures_______________________________________________________

Contents

1. STATEMENT.........................................................................................42. PURPOSE.............................................................................................43. OBJECTIVE...........................................................................................44. DEFINITION OF KEY TERMS...............................................................55. THE REPORTING SYSTEM..................................................................76. ROLES AND RESPONSIBILITIES......................................................107. CONFIDENTIALITY.............................................................................128. COLLATING AND PUBLISHING STATISTICS....................................139. RECEIVING AND ASSESSING DISCLOSURES................................1410. IBAC ASSESSMENT...........................................................................1511. MANAGING THE WELFARE OF THE DISCLOSER...........................1512. Attachment 1 – Glossary of terms........................................................2213. Attachment 2 – Register......................................................................23

Procedure Reference No: HCC14/517 Date of Adoption: 24/08/2015

Review Date: 01/08/2020 Responsible Officer: Manager Corporate Services

Adopted By: Council Department: Corporate Services

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1. STATEMENT

1.1. Hume City Council is committed to the aims and objectives of the Protected Disclosure Act 2012 (PD Act). It does not tolerate improper conduct by its employees, officers or members, nor the taking of reprisals against those who come forward to disclose such conduct.

1.2. Council 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.

1.3. Council 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, as defined in the PD Act to the person who is the subject of the disclosure.

1.4. Council will ensure any staff involved with handling protected disclosures are trained to receive and manage protected disclosures appropriately

2. PURPOSE

2.1 These procedures establish a system for reporting disclosures of improper conduct or detrimental action by the Council or its employees. The system enables such disclosures to be made to the Protected Disclosure Coordinator or to one of the nominated Protected Disclosure Officers.

2.2 Disclosures may be made by an individual person or a group of people, which includes both employees of the Council and members of the public. Disclosures cannot be made on behalf of an incorporated body.

2.3 These procedures are designed to complement normal communication channels between supervisors and employees. Employees are encouraged to continue to raise appropriate matters at any time with their supervisors. As an alternative, employees may make a disclosure of improper conduct or detrimental action under the Act in accordance with these procedures.

3. OBJECTIVE

3.1. There are three main objectives of the PD Act:

• To encourage and assist people to make a disclosure of improper conduct and detrimental action by public officers and public bodies

• To provide certain protections for people who make a disclosure, or those who may suffer detrimental action in reprisal for a disclosure

• To ensure that certain information about a disclosure is kept confidential – the identity of the person making the disclosure, and the content of that disclosure.




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3.2. The Protected Disclosures Act 2012 commenced operation on 10 February 2013 and repeals the Whistleblowers Protection Act 2001. The purpose of the PD Act is to encourage and facilitate the making of disclosures of improper conduct by public officers and public bodies.

3.3. The PD Act provides protection to people who make disclosures in accordance with the Act, and creates a new legislative framework for receiving protected disclosures and protecting those who make them.

4. DEFINITION OF KEY TERMS

The two key concepts in the protected disclosure reporting system are improper conduct taken by a public body or public officer (which comprises of corrupt conduct and specified conduct) and detrimental action taken by a public body or a public officer. Definitions of these terms are set out below.

4.1. Improper conduct

Improper conduct is defined under the PD Act to be either;

Corrupt conduct as defined in the Independent Broad-based Anti-Corruption Commission Act 2011 (IBAC Act), or

Specified conduct

Corrupt conduct (as per IBAC Act) is conduct that would, if proven beyond reasonable doubt at trial, constitute a relevant offence. Relevant offences include indictable offences or the common law offences of attempting to pervert the course of justice or bribery of a public official.

Specified conduct under the PD Act is conduct by a public body or a public official that would, if proven, constitute a criminal offence or reasonable grounds for dismissal. Specified conduct means conduct that is either corrupt, a substantial mismanagement of public resources, or conduct involving substantial risk to public health or safety or to the environment.

This means that improper conduct which can be either corrupt or specified conduct must, at its lowest threshold level, be either criminal conduct or conduct serious enough to result in a person’s dismissal.

.Examples of improper conduct

The dishonest performance of a public officer or public official of their functions;

Knowingly or recklessly breaching public trust by a public officer or public official;

Misuse of information obtained by a public officer or a public official which was obtained whilst acting in an official capacity

A conspiracy or attempt to engage in the above conduct.




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4.2. Detrimental action

The PD Act makes it an offence for a person to take detrimental action against a person in reprisal for a protected disclosure. The Hume City Council will consider not only the nature of the Detrimental Action, but also whether the action is being taken in reprisal for a protected disclosure. The person(s) taking the detrimental action must be a public officer or public body.

The PD Act defines detrimental action as including the following:

Action causing injury, loss or damage;

Intimidation or harassment; and

Discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action.

The person need not have actually taken the action but can just have threatened to do so.

The person need to have committed the action against the discloser themselves, but can have incited someone else to do so.

The detrimental action need not be taken against a discloser, but against any person.

Examples of detrimental action

A public body is not allowed to discriminate or disadvantage a person in their career, profession, employment, trade or business.

A public body demotes, transfers, isolates in the workplace or changes the duties of a discloser due to the making of a disclosure, might be detrimental action.

A public body discriminates against a discloser, or his or her family and associates in subsequent applications for jobs, permits or tenders may be taking detrimental action.

4.3. What is a disclosure?

A disclosure is a report made by a person about improper conduct of public bodies or public officers to any of the organisations specified in Part 2 of the PD Act. A disclosure can also be made about detrimental action against a person by public bodies or public officers in reprisal for the making of a protected disclosure by any person.

A complaint or allegation that is already in the public domain will not normally be a protected disclosure, for example if the matter has already been subject to media or other public commentary. The term 'disclosure' is interpreted under the PD Act in the ordinary sense of the word as a 'revelation' to the person receiving it.

The disclosure can relate to improper conduct or detrimental action against a person that may already have taken place, may be occurring




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now, or the public officer or public body may be going to do it in the future. Disclosures can be made about conduct that occurred prior to the commencement of the PD Act on 10 February 2013.

A disclosure made in accordance with the requirements of Part 2 of the PD Act, may also be a complaint, notification or disclosure made under another Act

4.4. What is not a disclosure

It will not be a protected disclosure if it is:

made to an entity that cannot receive disclosures, or notified to IBAC by such an entity because such disclosures or notifications do not meet all the requirements under Part 2 of the PD Act

the disclosure was made about a Public Interest Monitor, the Victorian Inspectorate, a Victorian Inspectorate Officer, or a court

the discloser expressly states in writing that the disclosure is not a disclosure under the PD Act

5. THE REPORTING SYSTEM

5.1 A disclosure may be made to a public body, a Council or a prescribed body (if the disclosure relates to an employee or officer of that body)

5.1.1 Oral disclosures made to the Hume City Council must be made:

• In private and in person, or

• by telephone or some form of electronic communication not involving writing, e.g. voicemail

An oral disclosure made to the Council can be provided to:

• The Chief Executive Officer, or

• The Protected Disclosure Coordinator or Officer, or

• If the person making the disclosure is an employee or officer of Council, to an employee who directly or indirectly supervises or manages that person. Council has made a determination that this be the responsible Manager or Director of the department or area of that employee.

5.1.2 Written disclosures made to Council must be either:

• Delivered personally to the office of the Council;

Hume City Council Customer Service Centres:

Broadmeadows Office: 1079 Pascoe Vale Road, BroadmeadowsSunbury Office: 40 Macedon Street, SunburyCraigieburn Office: 75-95 Central Park Avenue, Craigieburn




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• Sent by post addressed to the office of the Council;

Postal Address:

Hume City CouncilPO Box 119 Dallas VIC 3047

• Or, if the person making the disclosure is an employee or officer of the council, to an employee who directly or indirectly supervises or manages that person. Council has made a determination that this be the responsible Manager or Director of the department or area of that employee.

5.1.3 Anonymous disclosure

A discloser need not identify themselves to the organisation to make a disclosure to that organisation under the PD Act.

An anonymous disclosure can be made by using unverifiable email addresses, through anonymous phone calls or in a face-to-face conversation or meeting where the person refuses to identify themselves (provided that meeting or conversation takes place ‘in private’ in accordance with the PD Regulations).

If the disclosure comes from an email address where the identity of the person making the disclosure cannot be determined, the disclosure should be treated as an anonymous disclosure.

Anonymous does not necessarily mean non-contactable by the organisation the disclosure is made to.

Disclosures relating to:

• A Councillor; must be made to the Independent Broad-based Anti-Corruption Commission (IBAC) or the Ombudsman.

5.2 About whom can a disclosure be made?

Disclosures can be made about public bodies or public officers.

Public bodies include:

• public sector bodies (a public service body, a public entity and a special body)

• incorporated or unincorporated bodies established for a public purpose, including universities

• Electoral Boundaries Commission• a Council (established under the Local Government Act 1989)• a body performing a public function on behalf of the State or a public

body or public officer.

Public officers include:

• the Governor, Lieutenant-Governor or Administrator of the State• Members of Parliament, including Ministers• Ministerial officers, Parliamentary advisers and officers, electorate

officers




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• judicial officers, including coroners, members of VCAT, associate judges, judicial registrars

• statutory office holders, including the Auditor-General and the Ombudsman, the Director of Public Prosecutions

• public servants, including IBAC officers• local government Councillors and Council employees• university employees and teachers• police personnel.

Further information about the types of public bodies and public officers about whom disclosures can be made can be found in the Public Administration Act 2004, and the Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act), as well as on the State Services Authority website www.ssa.vic.gov.au

Some disclosures about certain public bodies or public officers are not disclosures under the PD Act. Section 9 of the PD Act provides that disclosures may not be made about the conduct or actions of a court, a Public Interest Monitor or the Victorian Inspectorate or its officers.

5.3 Contact persons within the Hume City Council

Disclosures of improper conduct or detrimental action by the Hume City Council or its employees may be made to the following officers:

The Protected Disclosure Coordinator

Director City Governance and Information, telephone 03 9205 2777;

Protected Disclosure Officers

Manager Corporate Services, telephone 03 9205 2240;

Welfare Manager

Manager Human Resources, telephone 03 9205 2226

Manager or Director of the Council Department or Division If a Manager or a Director receives a protected disclosure, then the disclosure must immediately be referred onto the Protected Disclosure Coordinator or onto a nominated Protected Disclosure Officer.

All correspondence, phone calls and emails from internal or external disclosers will be referred to the Protected Disclosure Coordinator. Where a person is contemplating making a disclosure and is concerned about approaching the Protected Disclosure Coordinator or a Protected Disclosure Officer in the workplace, he or she can call the relevant officer and request a meeting in a discreet location away from the workplace.

5.4 Alternative contact persons

A disclosure about improper conduct or detrimental action by the Hume City Council or its employees may also be made directly to IBAC.




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http://www.ssa.vic.gov.au/


Postal address: Street address:

IBACLevel 1, North Tower, IBACGPO Box 24234, 459 Collins Street,Melbourne, VIC 3001 Melbourne, VIC 3000

Phone: 1300 735 135Fax: (03) 8635 6444Website: http://www.ibac.vic.gov.au

Sections 14 to 19 of the Protected Disclosure Act provide that disclosures about some particular public bodies or public officers must only be made to particular entities. The following table sets out where disclosures about persons other than employees of Hume City Council should be made:

Person who is the subject of the disclosure

Person/body to whom the disclosure must be made

Employee of a public body That public body or IBACMember of Parliament(Legislative Assembly)

Speaker of the Legislative Assembly

Member of Parliament(Legislative Council)

President of the Legislative Council

Councillor IBAC or the Victorian OmbudsmanChief Commissioner of Police IBACMember of the police force IBAC or prescribed member of police

personnel (other than the Chief Commissioner)

IBAC, including its officers Victorian Inspectorate

6. ROLES AND RESPONSIBILITIES

6.1 Protected Disclosure Coordinator

The protected disclosure coordinator has a central ‘clearinghouse’ role in the internal reporting system. He or she will:

Receive all disclosures forwarded from the protected disclosure officers;

Receive all phone calls, emails and letters from members of the public or employees seeking to make a disclosure;

Impartially assess each disclosure to determine whether the disclosure is a protected disclosure, made in accordance with Part 2 of the PD Act;

Refer all confirmed protected disclosures to IBAC; Refer the person making the disclosure to the welfare manager when

considered necessary, to support the discloser and to protect him or her from any reprisals;

Take all necessary steps to ensure the identity of the discloser and the identity of the person who is the subject of the disclosure are kept confidential; and




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http://www.ibac.vic.gov.au/


Advise the discloser of the outcome of the assessment of the disclosure; i.e. whether or not, the disclosure is determined to be a protected disclosure complaint in accordance with the PD Act.

Note; if, the protected disclosure coordinator determines that, following assessment, a disclosure does not meet the requirements of Part 2 of the PD Act, then it is not a protected disclosure and may be dealt with under the Hume City Council’s internal complaints handling processes.

6.2 Protected Disclosure Officers

Protected Disclosure Officers will:

Be a contact point for general advice about the operation of the PD 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 disclosers);

Commit to writing any disclosure made orally; Take all necessary steps to ensure the identity of the discloser and the

identity of the person who is the subject of the disclosure are kept confidential; and

Forward all disclosures and supporting evidence to the protected disclosure coordinator.

6.3 Welfare Manager

The Welfare Manager is responsible for looking after the general welfare of the discloser. The welfare manager will monitor the specific needs of the discloser/co-operator and provide practical advice and support.

In most cases the Welfare Manager will only be required where a protected disclosure complaint is referred to IBAC and proceeds to investigation; however each case will be assessed on its own merits. If appointed the welfare manager is not expected to go beyond what is reasonable for a public body in providing support to an internal discloser or co-operator.

The Welfare Manager will:

Examine the immediate welfare and protection needs of a discloser who has made a disclosure and seek to foster a supportive work environment;

Advise the discloser of the legislative and administrative protections available to him or her;

Listen and respond to any concerns of harassment, intimidation or victimisation in reprisal for making disclosure; and

Ensure the expectations of the discloser are realistic.

6.4 All Employees

Employees are encouraged to report known or suspected incidences of improper conduct or detrimental action in accordance with these




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procedures. All employees of the Hume City Council have an important role to play in supporting those who have made a legitimate disclosure.

Employees must refrain from any activity that is, or could be perceived to be, victimisation or harassment of a person who makes a disclosure. Furthermore, employees are expected to protect and maintain the confidentiality of a person they know or suspect to have made a disclosure.

6.5 IBAC

Once a notification is made to IBAC, then IBAC must assess whether, in its view the assessable disclosure is a protected disclosure. In the event that IBAC is of the view that the assessable disclosure is a protected disclosure, then IBAC will provide the determination that the protected disclosure is a “protected disclosure complaint”.

In making this assessment IBAC may seek additional information from the notifying entity or from the discloser if IBAC considers there is insufficient information to make a decision.

If IBAC is of the view that the assessable disclosure is not a protected disclosure, then it is not a protected disclosure complaint.

Once IBAC has determined the protected disclosure is a protected disclosure complaint, the discloser cannot withdraw that disclosure. However IBAC can at its discretion decide not to investigate a protected disclosure, if the discloser requests that it not be investigated.

Once IBAC has made a determination in respect of an assessable disclosure notified to it, then IBAC has a responsibility to advise the relevant notifying entity of its determination, and the action (if any) which IBAC intends to take. This advice must be provided within a reasonable timeframe of the action being taken, or an investigation commenced.

IBAC is also responsible for, advising disclosers who have directly notified to IBAC, or who have had their disclosures notified to IBAC, of the determination and the action (if any) IBAC intends to take. This advice must be provided within a reasonable timeframe of the action being taken, or an investigation commenced.

7. CONFIDENTIALITY

7.1 Council will take all reasonable steps to protect the identity of the discloser. Maintaining confidentiality is crucial in ensuring reprisals are not made against a discloser.

7.2 The PD Act requires any person who receives information due to the handling or investigation of a protected disclosure, not to disclose that information except in certain limited circumstances. Disclosure of information in breach of the Act constitutes an offence for a person that is punishable by a maximum fine of 120 penalty units or twelve months imprisonment or both. In the case of a body corporate, a penalty of 600 penalty units is applicable.




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7.3 The circumstances in which a person may disclose information obtained about a protected disclosure are set out in ss52(3) of the PD Act, and include:

(a) the person or body discloses the content, or information about the content, of the assessable disclosure:

(i) in accordance with section 54 of the PD Act; or

(ii) in accordance with a direction or authorisation given by the investigating entity that is investigating the disclosure; or

(iii) to the extent necessary for the purpose of taking lawful action in relation to the conduct that is the subject of the assessable disclosure including a disciplinary process or action; or

(b) IBAC or the Victorian Inspectorate has determined that the assessable disclosure is not a protected disclosure complaint and the person or body discloses the content, or information about the content, of the assessable disclosure after that determination; or

(c) an investigating entity has:

(i) published in a report to Parliament under this or any other Act, or otherwise made public, the content, or information about the content, of the assessable disclosure; and

(ii) in doing so, acted consistently with the obligations relating to confidentiality that apply to the investigating entity under this Act and the person or body discloses the content, or information about the content, of the assessable disclosure after that publication.

7.4 Document security

Council will ensure all documentation is filed on its records management system, with access restricted to the Chief Executive Officer of Council, The Protected Disclosure Coordinator and Officers and the Welfare Manager with respect to welfare matters.

Any physical copies of files or documentation in relation to a Protected Disclosure matter will be stored securely in the office of the Protected Disclosure Coordinator. All printed material will be kept in files that are clearly marked as a Protected Disclosure matter, and warn of the criminal penalties that apply to any unauthorised divulging information concerning a protected disclosure. Council will ensure all phone calls and meetings relating to a Protected Disclosure matter are conducted in private.

8. COLLATING AND PUBLISHING STATISTICS

The protected disclosure coordinator will establish a secure register (attachment 1) to record the information required to be published in Council’s Annual Report, and to generally keep account of the status of protected




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disclosures. The register will be confidential and will not record any information that may identify the discloser.

The register will as a minimum contain the following information:

• The number and types of disclosures made during the year;

• The number of protected disclosures referred to IBAC for determination;

• The number and types of disclosed matters that were substantiated upon investigation and the action taken on completion of the investigation; and

• Any recommendations made by IBAC that relate to the public body.

9. RECEIVING AND ASSESSING DISCLOSURES

9.1 Where a disclosure has been received by the protected disclosure coordinator, he or she will assess whether the disclosure has been made in accordance with Part 2 of the PD Act and is, therefore, a protected disclosure.

9.2 For the disclosure to be received by Council, it must concern an employee, member or officer of Council. If the disclosure concerns a Councillor, 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. (See table in 6.2).

9.3 To be a protected disclosure, a disclosure must contain essential elements and satisfy the following criteria:

• Did a natural person; i.e. an individual person or group of individuals 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 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?

9.4 Where a disclosure is initially assessed to be a potential protected disclosure, it is referred to the protected disclosure coordinator, who will undertake a final impartial assessment of each disclosure to confirm whether the disclosure is a protected disclosure. The protected disclosure coordinator will then refer all confirmed protected disclosures to IBAC.

9.5 If Council does not consider the disclosure to be a protected disclosure, then it must provide the discloser with the following information in writing within 28 days after the disclosure was made, that:

• Council does not consider the disclosure to be a protected disclosure

• The disclosure has not been notified to IBAC for assessment, and the protections under Part 6 of the PD Act apply, regardless of whether the disclosure is notified to IBAC for assessment.




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• However, Council does not have to provide the discloser with the above information unless the discloser has indicated to the entity, or it otherwise appears to the entity, that the discloser wishes to receive the protections that apply to a protected disclosure under this Act.

• Council is not required to notify a disclosure to IBAC if it does not consider it to be a protected disclosure. It may also decide to deal with the matter as a complaint directed to Council for resolution.

9.6 If Council considers the disclosure may be a protected disclosure, then it is required to notify the disclosure to IBAC for assessment and to notify the discloser. These notifications can be done by persons specified in the Protected Disclosure Regulations 2013 as persons who can receive disclosures. Such a disclosure is called an ‘assessable disclosure’.

9.7 When urgent action is required while an assessment is still being made.

In some circumstances, the disclosure may be about improper conduct that may pose an immediate threat to health and safety of individuals, preservation of property, or may consist of serious criminal conduct. In such cases an entity can take immediate action while considering whether or not it is an assessable disclosure that must be notified to IBAC or whilst awaiting IBAC’s decision on a notified matter. It may be necessary to report criminal conduct to Victoria Police for immediate investigation, or take management action against an employee to prevent future improper conduct.

9.8 Protection for public officers: A public officer is given specific protections under the PD Act to provide information to other public officers or IBAC in dealing with a disclosure they have received. The public officer does not commit an offence under section 95 of the Constitution Act or other Act imposing a duty to maintain confidentiality, or breach confidentiality obligations or information disclosure restrictions when he or she acts in good faith and in accordance with the PD Act and Regulations and these guidelines.

10. IBAC ASSESSMENT

10.1 For further information on the IBAC protected disclosure assessment process refer to the IBAC publication; Guidelines for making and handling protected disclosures, available from IBAC’s website: http://www.ibac.vic.gov.au/docs/default-source/guidelines/guidelines-for-making-and-handling-protected-disclosures-june-2013.pdf?sfvrsn=2

11. MANAGING THE WELFARE OF THE DISCLOSER

11.1 Commitment to protecting disclosers

Council is committed to the protection of persons making genuine disclosers about improper conduct against detrimental action taken in reprisal for the making of protected disclosures or cooperating in the assessment and investigation of disclosures. In addition Council is committed to providing a workplace culture which supports people making protected disclosures and people who cooperate with protected disclosure complaint investigations.




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http://www.ibac.vic.gov.au/docs/default-source/guidelines/guidelines-for-making-and-handling-protected-disclosures-june-2013.pdf?sfvrsn=2

http://www.ibac.vic.gov.au/docs/default-source/guidelines/guidelines-for-making-and-handling-protected-disclosures-june-2013.pdf?sfvrsn=2


Council recognises the legislative and administrative obligations to ensure the health and wellbeing of employees of a public body under Occupational Health and Safety legislation, the Charter of Human Rights and Responsibilities Act 2006 and all other applicable legislation. Council accepts responsibility for ensuring that both those who make disclosures and those who cooperate with investigations, are protected from direct and indirect detrimental action.

Having been made aware of the identity of a discloser who is an employee of Council, and/or the contents of their disclosure, Council is committed to keeping that information confidential. The protected disclosure coordinator will refer a welfare manager to all disclosers who have made a protected disclosure.

The protected disclosure coordinator has the responsibility for ensuring that disclosers are protected from direct and indirect detrimental action, and the culture of the workplace remains supportive of protected disclosures being made.

11.2 Confidentiality protection for discloser.

Section 40 of the PD Act states that a person who makes a protected disclosure does not by doing so commit an offence under section 95 of the Constitution Act or a provision of any other Act that imposes a duty to maintain confidentiality with respect to a matter or any restriction on the disclosure of information; or breach an obligation by way of oath or rule of law or practice or under an agreement requiring him or her to maintain confidentiality or otherwise restricting the disclosure of information with respect to a matter.

A person who makes a protected disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the disclosure. In any proceeding for defamation there is a defence of absolute privilege in respect of the making of a protected disclosure.

A discloser is not protected if they commit an offence under section 72 or 73 of the PD Act, under which it is an offence to make a false disclosure or provide false further information; and an offence to falsely claim a disclosure is a protected disclosure or is a protected disclosure complaint

Part 11 of the PD Act contains a number of offence provisions relating to unauthorised disclosure of information by either disclosers or persons who have received disclosures. Disclosers commit an offence if they disclose that:

• Their disclosure has been notified to IBAC for assessment, subject to specific exceptions.

• IBAC or the Victorian Inspectorate has determined their disclosure to be a protected disclosure complaint, subject to specific exceptions.

11.3 The Welfare Manager will:




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Provide active support:

• Acknowledge the person for having come forward;• Provide the person with assurance that they have done the right

thing, and the organisation appreciates it;• Make a clear offer of support;• Assure the discloser that all reasonable steps will be taken to

protect them;• Give them an undertaking to keep them informed.

Manage Expectations:

• What outcome does the discloser want?• Are their expectations realistic?• What will the organisation be able to deliver?

Maintain Confidentiality:

The identity of the discloser and the subject matter of their disclosure must be kept confidential.

• Make sure that other staff cannot infer the identity of the discloser or a person cooperating with the investigation from any information they receive;

• Remind the discloser not to reveal themselves or give out information that would enable others to identify them as a discloser;

• Make sure that hardcopy and electronic files relating to the disclosure are accessible only to those who are involved in managing disclosures and persons affected by them in the organisation.

Assess the risks of detrimental action being taken in reprisal:

• Be proactive and do not wait for a complaint of victimisation, but actively monitor the workplace, anticipate problems and deal with them before they develop.

Protect the discloser/co-operator:

• Examine the immediate welfare and protection needs of the person and seek to foster a supportive work environment;

• Listen and respond to any concerns the person may have about harassment, intimidation or victimisation in reprisal for their actions;

• Assess whether the concerns the person may have about harassment, intimidation or victimisation might be due to other causes other than those related to a protected disclosure.

Keep records:

• In accordance with Section 7 – confidentiality, keep contemporaneous, secure records of all aspects of the case management of the person, including all contact and follow-up action.

The Welfare Manager must not divulge any details relating to the disclosed matter to any person other than the protected disclosure




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coordinator, or the Chief Executive Officer of Council. All meetings between the welfare manager and the person must be conducted discreetly to protect the person from being identified as being involved in the disclosure.

All employees are 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. The taking of detrimental action in breach of this provision can also be grounds for making a disclosure under the PD Act and can result in an investigation.

11.4 Informing the subject of a disclosure

Council may provide information about the disclosure to the subject of the disclosure if it is directed or authorised to do so by the entity investigating the disclosure or for the purpose of taking action with respect to the conduct alleged, including disciplinary action.

Investigating entities may also inform the subject of the disclosure in the course of their investigation for the purposes of conducting that investigation, or any actions that they propose to take as a result of the investigation.

11.5 Welfare services for a person subject to a disclosure

A person who is the subject of a disclosure, and who is made aware of their status, will have a welfare manager appointed by Council, or be referred to the Council’s Employee Assistance Program for welfare assistance. The Protected Disclosure Coordinator will consider each matter on a case by case basis, taking into account the particular circumstances of the person who is the subject of a disclosure.

Employee Assistance Program - EAP What is EAP?

EAP is a free, confidential counselling service which can provide Hume employees (and their immediate family) with support on a range of personal and work related matters. The program provides up to three confidential sessions with a qualified and experienced staff member either in person or over the telephone.

Why do we have an EAP?

Hume City Council is committed to assisting employees who may need support with personal or work related matters by providing an EAP.

Who provides the service?

The EAP is provided by Optum (formally PPC Worldwide). They offer a professional, independent and confidential counselling service.

How do I access the EAP?




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Employees of the Council can contact the EAP at any time via telephone: 1300 361 008

11.6 Nature of alleged detrimental action

The PD Act creates an offence for a person to take detrimental action against another person in reprisal for someone making a protected disclosure. The Protected disclosure coordinator will consider the nature of the detrimental action, and also whether it is being taken in reprisal for a protected disclosure. The person(s) taking the detrimental action must be a public officer or body.

Section 3 of the PD Act defines detrimental action by a person as including the following:

Action causing injury, loss or damage; Intimidation or harassment; Discrimination, disadvantage or adverse treatment in relation to a

person’s employment, career, profession, trade or business, including the taking of disciplinary action.

However:

The person need not have actually taken the action, but can just have threatened to do so;

The person need not have taken or threatened to take the action against the person themselves, but can have incited someone else to do so;

The detrimental action need not be taken against a discloser, but against any person.

11.7 Detrimental action taken in reprisal for a protected disclosure

The person (or the person they have incited) must take or threaten the action, because, or in the belief that the:

other person or anyone else has made, or intends to make the disclosure;

other person or anyone else has cooperated, or intends to cooperate with an investigation of the disclosure.

11.8 Dealing with detrimental action

If any person reports an incident of harassment, discrimination or adverse treatment that may amount to detrimental action apparently taken in reprisal for a disclosure the welfare manager or protected disclosure coordinator must record details of the incident and advise the person of their rights under the PD Act.

11.9 Criminal Offences

Where the detrimental action is of a serious nature likely to amount to a criminal offence, consideration should be given to reporting the matter to the police or IBAC. If a person commits a criminal offence against




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subsection 45(1) of the PD Act that offence carries a penalty of 240 penalty units or two years imprisonment or both.

In such circumstances, a public body must be careful about making preliminary enquiries or gathering information concerning such an allegation of serious detrimental action so it does not compromise the integrity of any evidence that might be later relied upon in a criminal prosecution.

The taking of detrimental action in reprisal for making a disclosure can be grounds for a person to make a further disclosure with respect to that conduct. The disclosure of this allegation must be assessed by the entity receiving it as a new disclosure under Part 2 of the PD Act.

11.10 Discloser implicated in the improper conduct or detrimental action that is subject of the disclosure

A person who makes a disclosure is not protected against legitimate management action and will still be held liable for their own conduct that they disclose as part of the protected disclosure.

The discloser is not subject to criminal or civil liability for making the disclosure under section 39 of the PD Act. However section 42 of the PD Act specifically provides that a person’s liability for his or her own conduct is not affected by the person’s disclosure of that conduct under the PD Act.

The management of the welfare of a discloser may become complicated when that person is implicated in misconduct, whether or not that misconduct is related to the disclosure. The general obligations of a public service or other body that can receive disclosures in relation to handling a disclosure and protecting the discloser still apply. A discloser is not protected from the reasonable consequences flowing from their involvement in any improper conduct, as section 42 of the PD Act sets out.

Council recognises that the act of making a disclosure should not shield the person making the disclosure from the reasonable consequences flowing from any involvement in improper conduct. Section 42 of the PD Act specifically provides that a person’s liability for his or her own conduct is not affected by the person’s disclosure of that conduct under the Act. However, in some circumstances, an admission may be a mitigating factor when considering disciplinary or other action.

Care will be taken by the protected disclosure coordinator to thoroughly document the process of any action taken against a discloser, which includes the recording of any reasons why disciplinary action, or any other actions are being taken; and the reasons why such action is not in retribution for making the disclosure. The discloser will be clearly advised of the proposed action to be taken and of any mitigating factors that have been taken into account.

After considering the advice of the Protected Disclosure Coordinator, The Chief Executive Officer of Council has the discretion to make the final




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decision, as to whether disciplinary or other action will be taken against a discloser.

Where disciplinary or other action relates to conduct that is the subject of the person’s disclosure, the disciplinary or other action will only be taken after the disclosed matter has been appropriately dealt with.

In all cases where disciplinary or other action is being contemplated, the Chief Executive Officer of Council must be satisfied that it has been clearly demonstrated that:

The intention to proceed with disciplinary action is not causally connected to the making of the disclosure (as opposed to the content of the disclosure or other available information);

There are good and sufficient grounds that would fully justify action against any non-discloser in the same circumstances; and

There are good and sufficient grounds that justify exercising any discretion to institute disciplinary or other action.

11.11 Management of the person against whom a disclosure has been made

Council recognises that employees against whom disclosures are made must also be supported during the handling and investigation of disclosures. Council will take all reasonable steps to ensure the confidentiality of the person who is the subject of the disclosure during the assessment and investigation process.

Where investigations do not substantiate disclosures, the fact that the investigation has been carried out, the results of the investigation, and the identity of the person who is the subject of the disclosure will remain confidential.

11.12 Natural justice

Council will afford a person with the principles of natural justice as defined within the PD Act, prior to a decision being made about their conduct; however recognises that the PD Act and consequently Council’s associated protected disclosure procedures, do not fully comply with the principles of natural justice.

If a protected disclosure matter has been investigated by an investigating entity such as IBAC, Victorian Inspectorate, Victoria Police or the Ombudsman, then the carrying out of this consultation process is the responsibility of each of these organisations.

11.13 Review

These procedures will be reviewed every five (5) years, or whenever necessary, to ensure they meet the objectives of the PD Act and accord with the Public Disclosure Regulations and guidelines as set by IBAC.




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12. Attachment 1 – Glossary of terms

Assessable disclosure a disclosure that must be made directly, or notified, to IBAC or the Victorian Inspectorate, and includes a police complaint disclosure. In the case of a disclosure notified to IBAC it is a disclosure that the notifier considers may be a protected disclosure

Discloser a person who makes a disclosure of improper conduct or detrimental action in accordance with the requirements of Part 2 of the PD Act

Entity that can receive disclosure a public service body within the meaning of section 4(1) of the Public Administration Act 2004, a Council (established under the Local Government Act 1989), a public body or public officer prescribed for the purposes of section 13 of the PD Act

Investigating entity IBAC, the Ombudsman, the Chief Commissioner of Police and the Victorian Inspectorate. Only these entities can investigate a protected disclosure complaint

Protected disclosurea) A disclosure made in accordance with Part 2 of the PD Act; orb) A complaint made in accordance with section 86L(2A) of the Police Regulation Act 1958

Protected disclosure complaint a disclosure that has been determined by IBAC under section 26 of the PD Act to be a protected disclosure complaint

Public body a public body within the meaning of section 6 of the Independent Broad-based Anti-corruption Act 2011, IBAC or any other body or entity prescribed for the purposes of this definition

Public officer a public officer within the meaning of section 6 of the Independent Broad-based Anti-corruption Act 2011, an IBAC officer or any other person prescribed for the purposes of this definition

Public sector the sector comprising all public bodies and public officers

Public service body a Department, an Administrative Office, or the State Services Authority




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Protected Disclosure Act 2012 (The PD Act) – Procedures_______________________________________________________ 13. Attachment 2 – Register

The register below records information about disclosures made to Hume City Council that have been determined to be protected disclosures.

File A File B File C File D

Date disclosure received by specified officer.

Has the disclosure been assessed as a protected disclosure?

Date the above determination made.

Date discloser informed of determination.

Date disclosure referred to IBAC.

Determination made by IBAC or other investigating entity.

Did discloser refer the disclosure directly to IBAC?

Recommendations made by IBAC or other investigating entity

Date reporting requirements satisfied




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policy writing - hume.vic.gov.au web viewthe discloser expressly states in writing that the...

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