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Protection of Persons from Detrimental Action procedure

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Section 1 - Preamble

(1) This Procedure was approved by the Vice-Chancellor on 31 July 2013 and came into effect on 10 August 2013 and incorporates all amendments to 1 June 2015. It is established in accordance with section 58(5) of the Protected Disclosure Act 2012 (Vic).

(2) This Procedure is pursuant to the Code of Conduct and includes the following schedules:

  1. Schedule A: Responsibilities of the Protected Disclosure Coordinator and Welfare Manager.
  2. Schedule B: Protected Disclosures Flowchart
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Section 2 - Purpose

(3) The purpose of this Procedure is to:

  1. explain how and to whom a Protected Disclosure can be made about Deakin University or any of its employees or contractors; and
  2. summarise Deakin University's obligations if a Protected Disclosure is made about it or any of its employees or contractors.
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Section 3 - Scope

(4) This Procedure applies throughout the University.

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Section 4 - Policy

(5) Refer to the Code of Conduct.

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Section 5 - Procedure

Executive summary

(6) If a person wishes to make a Protected Disclosure about the conduct of the University or a University employee or contractor, the person should make the disclosure directly to the Independent Broad-based Anti-corruption Commission (IBAC).

(7) The University cannot receive Protected Disclosures under the Act.

(8) If the University is notified by IBAC, or otherwise becomes aware, that IBAC has received a disclosure which may be a Protected Disclosure it will take steps to:

  1. maintain the confidentiality of the disclosure and the identity of the discloser; and
  2. protect the discloser and any other person from Detrimental Action in reprisal for the Protected Disclosure,

What is a Protected Disclosure?

(9) A Protected Disclosure is a disclosure that is made in accordance with Part 2 of the Act. To be a Protected Disclosure, the disclosure must:

  1. be made by a natural person (a corporation or a business cannot make a Protected Disclosure); and
  2. show or tend to show (or the discloser must believe on reasonable grounds that the disclosure shows or tends to show):
    1. that a person, a public body (such as Deakin University), or a public officer (including an employee or contractor of Deakin University) has engaged in, is engaging in, or proposes to engage in Improper Conduct; or
    2. that a public body (such as Deakin University) or a public officer (including an employee or contractor of Deakin University) has taken, is taking or proposes to take Detrimental Action against a person in reprisal for making a Protected Disclosure; and
  3. be made to an appropriate organisation (see clauses 10 to 16 of this Procedure below for further information about who can receive a Protected Disclosure about Deakin University or any of its employees or contractors).

How can a person make a Protected Disclosure about Deakin University?

(10) The Act specifies that only certain entities can receive Protected Disclosures. Deakin University is not one of those entities and therefore cannot receive a Protected Disclosure under Part 2 of the Act.

(11) If a person wishes to make a disclosure about suspected Improper Conduct or Detrimental Action on the part of Deakin University or an employee or contractor of the University, and wishes to receive the protections contained in Part 6 of the Act, the person must disclose the information directly to IBAC (or, in limited circumstances, to certain other organisations such as the Ombudsman).

(12) Please refer to the IBAC website for further information about the procedures for making a Protected Disclosure to IBAC or any other entities: http://www.ibac.vic.gov.au/

(13) IBAC has also released the IBAC Guidelines which provide helpful guidance for those wishing to make a Protected Disclosure to IBAC. The IBAC Guidelines are available on IBAC's website.

(14) If a disclosure about suspected Improper Conduct or Detrimental Action is made directly to Deakin University:

  1. the disclosure will not be a Protected Disclosure for the purposes of the Act;
  2. the University will not be obliged to refer the disclosure to IBAC, although the University will advise the person making the disclosure that they are themselves entitled to disclose the matter to IBAC; and
  3. the person making the disclosure will not be entitled to the protections contained in Part 6 of the Act, such as immunity from civil or criminal liability or defamation action, in relation to the disclosure.

(15) However, if the University receives a disclosure about Improper Conduct or Detrimental Action on the part of the University or a University employee or contractor, the University may, if appropriate, elect to investigate the disclosure in accordance with its own internal procedures for addressing complaints, grievances and other matters of concern relating to the University, including:

  1. the Prevention and Control of Fraud and Corruption Procedure, in consultation with the Chief Financial Officer (unless the disclosure relates to the conduct of the Chief Financial Officer); and
  2. any other relevant University policy or procedure.

(16) The University may also have obligations under other legislation to take steps to address matters that are referred to it or that it becomes aware of. For example, the University will be obliged to report suspected criminal conduct to Victoria Police. The University will also take appropriate action if it receives information about conduct that may pose an immediate threat to the health and safety of individuals or preservation of property.

What obligations does the University have if a person makes a Protected Disclosure about the University to IBAC?

Introduction

(17) The IBAC Guidelines state that, if a person makes a disclosure to IBAC, IBAC may notify the University that the disclosure has been received. However, IBAC will not necessarily notify the University, meaning that, in some instances, the University may not be aware that a disclosure has been made to IBAC.

(18) If the University is notified by IBAC, or otherwise becomes aware, that IBAC has received a disclosure which may be a Protected Disclosure the University has:

  1. specific confidentiality obligations in relation to the disclosure; and
  2. obligations to protect the discloser or any other person from Detrimental Action in reprisal for the disclosure.

The University's confidentiality obligations

(19) If the University is notified by IBAC, or otherwise becomes aware, that IBAC has received a disclosure which may be a Protected Disclosure, the University (and the particular University staff members who receive the notification from IBAC), will be obliged to maintain the confidentiality of:

  1. the identity of the discloser; and
  2. the content, and information about the content, of the disclosure.

(20) It is an offence for the University to disclose to any person the identity of someone who has made a Protected Disclosure, or the content, or information about the content, of a disclosure made to IBAC, except in the circumstances identified in clause 31 of this Procedure. If the University commits such an offence, it may be subject to a penalty of up to $86,616.

(21) It is an offence for any person, including a University employee or contractor, to disclose to any person the identity of someone who has made a Protected Disclosure, or the content, or information about the content, of a disclosure made to IBAC, except in the circumstances identified in clause 31 of this Procedure. A person who commits such an offence may be subject to a penalty of up to $17,323.20 or a year's imprisonment, or both.

How will the University protect the confidentiality of information?

(22) The University will take all reasonable steps to ensure that all notifications received from IBAC about a Protected Disclosure relating to the University or a University employee or contractor are referred to the University's Protected Disclosure Coordinator or to the Vice-Chancellor of the University. The University will ensure that staff, particularly those opening mail, working in reception areas and handling complaints, are alert to identifying correspondence from IBAC and must forward any such correspondence to the Protected Disclosure Coordinator.

(23) The role and responsibilities of the Protected Disclosure Coordinator are set out in the Schedule A to this Procedure.

(24) If the Protected Disclosure Coordinator or the Vice-Chancellor becomes aware (whether via a notification from IBAC or otherwise) that a disclosure has been made to IBAC, the Protected Disclosure Coordinator will (or the Vice-Chancellor will instruct the Protected Disclosure Coordinator to) take the following steps to protect the confidentiality of the relevant information:

  1. ensure that other staff or students cannot infer the identity of the discloser or a person cooperating with an IBAC investigation from any information they receive;
  2. remind the discloser not to reveal themselves or give out information that would enable others to identify them as a discloser, and remind them that it is in their interests to keep the disclosure confidential by discussing related matters only with the Protected Disclosure Coordinator, his or her Welfare Manager (if one is appointed), officers of IBAC or other persons authorised by law;
  3. if the Protected Disclosure Coordinator becomes aware that a staff member or student of the University has been asked to cooperate with an IBAC investigation into the matter, remind the staff member or student not to reveal themselves or give out information that would enable others to identify that they are cooperating with the investigation;
  4. if it is necessary or appropriate to establish or maintain a file in relation to the disclosure, ensure that any hard copy or electronic files are accessible only by the Protected Disclosure Coordinator, the Welfare Manager (if one is appointed) and any other staff members who are involved in managing the Protected Disclosure or protecting the welfare of the discloser. If appropriate, the file will also be accessed by the University's Information Manager (unless the disclosure relates to the conduct of this person);
  5. ensure that the Welfare Manager, and any other staff members who are involved in managing the Protected Disclosure, understand their confidentiality obligations under the Act;
  6. only disclose information regarding conduct which is the subject of the disclosure to other persons on a 'need-to-know' basis and in accordance with clause 31 of this Procedure; and
  7. ensure that all written and verbal communications regarding the disclosure are conducted in a discreet manner.

(25) Subject to clause 31 of this Procedure, the University, through the Protected Disclosure Coordinator, will take steps to protect the confidentiality of the identity of the discloser and the content of any Protected Disclosure for the duration of any investigation into the matter by IBAC. It will also ensure that, following the conclusion of any investigation by IBAC, it keeps confidential the fact that an investigation has occurred, its result, and the identity of the discloser.

(26) The University will only disclose information about a disclosure made to IBAC in the circumstances identified in clause 31 of this Procedure.

(27) If a University employee or contractor becomes aware that a disclosure has been made to IBAC (whether through being asked to participate in IBAC's investigation or otherwise), the employee or contractor must keep confidential any information relating to the disclosure, except in the circumstances identified in clause 31 below.

Exceptions to confidentiality requirements

(28) The University and any University employees or contractors may only disclose information about the content of a disclosure that has been made to IBAC:

  1. in accordance with a direction or authorisation from IBAC (or another investigating entity);
  2. to the extent necessary for the purpose of taking lawful action in relation to the conduct which is the subject of the disclosure, for example, if required by the University as part of a disciplinary process;
  3. if IBAC has determined that the disclosure is not a Protected Disclosure;
  4. for the purpose of obtaining legal advice in relation to the disclosure;
  5. for the purpose of a proceeding for an offence against an Act;
  6. where necessary for the purpose of exercising functions under the Act; or
  7. if otherwise permitted to do so by the Act.

(29) The University and any University employees or contractors may only disclose the identity of the person who has made a disclosure to IBAC:

  1. if IBAC has determined that the disclosure is not a Protected Disclosure;
  2. for the purpose of obtaining legal advice in relation to the disclosure;
  3. for the purpose of a proceeding for an offence against an Act;
  4. where necessary for the purpose of exercising functions under the Act; or
  5. if otherwise permitted to do so by the Act.

(30) In addition, the Protected Disclosure Coordinator may provide information about a Protected Disclosure to:

  1. the Vice-Chancellor of the University, unless the Vice-Chancellor is the subject-matter of the Protected Disclosure; and
  2. a Welfare Manager, if one is appointed by the Protected Disclosure Coordinator in accordance with clauses 45 to 51 or 52 to 57 of this Procedure.

What is Detrimental Action?

(31) Under section 45 of the Act, it is an offence to take Detrimental Action against a person in reprisal for the making of a Protected Disclosure. A person who commits such an offence may receive a penalty of up to two years imprisonment or a fine of up to $34,646.40, or both.

(32) A person takes Detrimental Action against another person in reprisal for a Protected Disclosure if the person acts in the belief that the other person or anyone else:

  1. has made or intends to make a Protected Disclosure; or
  2. has cooperated or intends to cooperate with an investigation of a Protected Disclosure.

(33) It is also an offence under section 45 of the Act if a person threatens to take Detrimental Action in reprisal for a Protected Disclosure or incites or permits another person to do so.

(34) The provisions in the Act preventing the taking of Detrimental Action will not prevent a manager from taking management action in relation to an employee who has made a Protected Disclosure (unless the Protected Disclosure is a substantial reason for the management action). Nor does the Act prevent a person taking action against a discloser who has made a false disclosure or provided false information regarding the disclosure.

What are the University's obligations in relation to Detrimental Action?

(35) The University's obligations to protect persons from Detrimental Action in reprisal for a Protected Disclosure may apply to any person within the University community, including:

  1. the discloser;
  2. a person who is the subject of the Protected Disclosure; or
  3. any person who is cooperating with an investigation by IBAC into a Protected Disclosure.

(36) In addition to the confidentiality obligations discussed in clause 19 above, if the University is notified by IBAC, or otherwise becomes aware, that a person has made a Protected Disclosure to IBAC, the University will take steps to protect any person who faces a risk of Detrimental Action being taken against them in reprisal for the Protected Disclosure.

(37) Such steps may include:

  1. if the person is an employee or contractor of the University, actively monitoring the workplace to anticipate any possible Detrimental Action against the discloser or person cooperating in reprisal for the Protected Disclosure;
  2. considering any concerns the person may express about possible harassment or intimidation, including considering whether any such conduct may be due to causes other than a Protected Disclosure; and
  3. ensuring that the University complies with its obligations under Occupational Health and Safety legislation, the Public Administration Act 2004 and the Charter of Human Rights and Responsibilities Act 2006 in relation to the person.

(38) Depending on the nature and circumstances of the disclosure, the University may take other appropriate steps to protect the person from Detrimental Action.

(39) The Protected Disclosure Coordinator will be responsible for taking the steps set out in clause 37 and 38 above, although the Protected Disclosure Coordinator may engage the assistance of the Welfare Manager (if one is appointed) to carry out some or all of these steps.

(40) The Protected Disclosure Coordinator and the Welfare Manager (if one is appointed) must ensure that appropriate records are kept of their contact with the person being protected from Detrimental Action, and of any follow up action taken in relation to the Protected Disclosure.

(41) If a University employee or contractor becomes aware (whether through being asked to participate in IBAC's investigation into the matter or otherwise) that a Protected Disclosure has been made to IBAC in relation to the University, the employee or contractor must refrain from any activity that is, or could be perceived to be, discrimination, victimisation, harassment or intimidation of a person who makes a Protected Disclosure or any person who they know or suspect is cooperating with IBAC's investigation.

Complaints about Detrimental Action

(42) If a person believes that, as a result of a Protected Disclosure they have been subjected to Detrimental Action, the person may notify IBAC of the suspected Detrimental Action. If the notification is made in accordance with the requirements of the Act, the notification will constitute a further Protected Disclosure.

(43) As stated above in clause 10, under the Act only certain entities can receive a Protected Disclosure. Deakin University is not one of those entities. Therefore, under the Act, the University cannot receive a Protected Disclosure about Detrimental Action.

(44) If a person makes a complaint to the University alleging that Detrimental Action has been taken in reprisal for a Protected Disclosure, the University officer who receives the complaint should:

  1. record details of the complaint;
  2. inform the discloser that they are entitled to disclose the matter to IBAC; and
  3. inform the Protected Disclosure Coordinator of the complaint so that steps can be taken to protect the welfare of the person who has allegedly been subject to Detrimental Action.

Managing the welfare of the discloser and/or person cooperating

(45) The University is committed to ensuring that its workplace culture supports those who make Protected Disclosures and those who cooperate with an investigation into a Protected Disclosure.

(46) The University will take all reasonable steps to protect the welfare of staff and/or students who make a Protected Disclosure or who cooperate with an investigation by IBAC into a Protected Disclosure.

(47) If the Protected Disclosure Coordinator considers it appropriate to do so, the Protected Disclosure Coordinator may appoint a Welfare Manager who will be responsible for managing the welfare of:

  1. a person who has made a Protected Disclosure to IBAC; and/or
  2. a person who is cooperating with an investigation by IBAC into a Protected Disclosure.

(48) The responsibilities of the Welfare Manager are set out in the Schedule A to this Procedure.

(49) In addition to the steps set out in clauses 24c and 37 above, the University will, if appropriate, also take steps to protect the welfare of the discloser and/or any person cooperating with an IBAC investigation. Such steps may include:

  1. providing active support to the discloser and/or person cooperating;
  2. managing the expectations of the discloser and/or person cooperating in relation to the outcome of the matter;
  3. actively considering the welfare needs of the discloser and/or person cooperating;
  4. explaining the operation of this Procedure and/or the Act; and/or
  5. keeping records of all aspects of the matter, including all contact and follow up with the discloser and/or person cooperating.

(50) If the discloser or person cooperating with an IBAC investigation is an employee or contractor of the University, the University may have other obligations in relation to the management of that individual's welfare, including, if relevant, under a contract of employment or engagement.

(51) The Protected Disclosure Coordinator will be responsible for taking the steps set out in clauses 49 and 50 above, unless the Protected Disclosure Coordinator appoints a Welfare Manager for the discloser/person cooperating, in which case, the Welfare Manager will be responsible for taking those steps.

Managing the welfare of the person against whom a disclosure has been made

(52) The University will take all reasonable steps to ensure that the identity of the person who is the subject of any Protected Disclosure will remain confidential while the Protected Disclosure is being assessed or investigated by IBAC.

(53) The University will only inform the person who is the subject matter of the disclosure that a Protected Disclosure has been made about him or her, and/or provide that person with information about the Protected Disclosure, if the University is instructed to do so by IBAC (or another investigating entity).

(54) In such circumstances, the University may take steps to protect the welfare of the person who is the subject of any Protected Disclosure. Such steps may include:

  1. providing active support to the person;
  2. actively considering the welfare needs of the person;
  3. explaining the operation of this Procedure and/or the Act; and/or
  4. keeping records of all contact and follow up with the person.

(55) If appropriate, the Protected Disclosure Coordinator may also appoint a Welfare Manager to look after the wellbeing of the person who is the subject of a disclosure. The responsibilities of the Welfare Manager are set out in the Schedule A to this Procedure.

(56) The Protected Disclosure Coordinator will be responsible for taking the steps set out in clause 54 above, unless the Protected Disclosure Coordinator appoints a Welfare Manager for the discloser/person cooperating, in which case, the Welfare Manager will be responsible for taking those steps.

(57) The investigation or assessment of a Protected Disclosure will be conducted by IBAC, and IBAC will be responsible for ensuring that any person who is the subject of the Protected Disclosure is afforded natural justice.

Further information

(58) If you would like further information about how to make a Protected Disclosure or about your rights and obligations under the Act, please refer to:

  1. the IBAC website: http://www.ibac.vic.gov.au/;
  2. the IBAC Guidelines which can be found on the above website; and
  3. the Act which can be accessed at http://www.legislation.vic.gov.au .

(59) If you have any questions about this Procedure, please contact the Protected Disclosure Coordinator:

Ms Shirley Rooney
University Solicitor
Deakin University
1 Gheringhap Street
Geelong Vic 3220
Telephone: 03 5227 8560
Email: shirley.rooney@deakin.edu.au

(60) The Protected Disclosure Coordinator will be able to provide you with confidential advice about the matters addressed in this Procedure.

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Section 6 - Definitions

(61) For the purpose of this Procedure:

  1. Corrupt Conduct means conduct:
    1. of any person 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; or
    2. 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; or
    3. of a Public Officer or Public Body that constitutes or involves knowingly or recklessly breaching public trust; or
    4. 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 or 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
    5. that could constitute a conspiracy or an attempt to engage in any conduct referred to in clause 61a, points (i), (ii), (iii) or (iv),

      being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.
  2. Detrimental Action includes:
    1. action causing injury, loss or damage;
    2. intimidation or harassment;
    3. discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including the taking of disciplinary action.
  3. IBAC means the Independent Broad-based Anti-corruption Commission established in accordance with the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).
  4. IBAC Guidelines means:
    1. the 'Guidelines for making and handling protected disclosures' issued by IBAC in June 2013 under section 57 of the Act; and
    2. the 'Guidelines for protected disclosure welfare management' issued by IBAC in June 2013 under section 57 of the Act.
  5. Improper Conduct means:
    1. Corrupt Conduct; or
    2. Specified Conduct that is not Corrupt Conduct but that, if proved, would constitute:
      1. a criminal offence; or
      2. reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of the officer who was, or is, engaged in that conduct.
  6. Procedure means this procedure document, which is established by the University in accordance with section 58(5) of the Act.
  7. Protected Disclosure is a disclosure made in accordance with Part 2 of the Act (as described in clause 9 of this Procedure).
  8. Protected Disclosure Coordinator is the person referred to in clause 59 who has the responsibilities set out in Schedule A.
  9. Public Body has the meaning given in section 6 of the Act, and includes the University.
  10. Public Officer has the meaning given in section 6 of the Act, and includes University employees and contractors.
  11. Specified Conduct is conduct:
    1. of any person 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; or
    2. 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; or
    3. of a Public Officer or Public Body that constitutes or involves knowingly or recklessly breaching public trust; or
    4. of a Public Officer or Public Body that involves the misuse of information or material acquired in the course of the performance of his or 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
    5. that could constitute a conspiracy or an attempt to engage in any conduct referred to in clause 61k points (i), (ii), (iii) or (iv); or
    6. of a Public Officer or Public Body in his or her capacity as a Public Officer or its capacity as a Public Body that:
      1. involves substantial mismanagement of public resources; or
      2. involves substantial risk to public health or safety; or
      3. involves substantial risk to the environment.
  12. Welfare Manager means a person appointed by the Protected Disclosure Coordinator to perform the role described in Schedule A.