/ Protected Disclosure Procedure
Version No / 1.0
Endorsement / Chief Executive Officer
Authorisation / Legal Officer
Expiry date: / 1 August 2016
Responsible officer: / Protected Disclosure Coordinator
Policy owner / Chief Executive Officer

Introduction

Melton City Council is committed to the aims and objectives of the Protected Disclosure Act2012. It does not tolerate corrupt or improper conduct by its employees, officers or Councillors, nor the taking of reprisals against those who disclose such conduct.

Council recognises the value of transparency and accountability in its administrative and management practices and supports the making of disclosures that:

(a)reveal corrupt conduct, such as conduct involving a substantial mismanagement of public resources; or

(b)conduct involving a substantial risk to public health and safety or the environment.

Council will take all reasonable steps to protect and support people who make such disclosures from any detrimental action in reprisal for making the disclosure.

  1. Purpose

The Protected Disclosure Act2012commenced on 10 February 2013. It replaced the Whistleblowers Protection Act2001 and created a new framework for dealing with disclosures and persons who make a protected disclosure.

The purposes of the Act are:

(a) to encourage and facilitate disclosures of:

(i)improper conduct by public officers, public bodies and other persons; and

(ii)detrimental action taken in reprisal for a person making a disclosure under this Act; and

(b)to provide protection for:

(i)persons who make those disclosures; and

(ii)persons who may suffer detrimental action in reprisal for those disclosures; and

(c)to provide for the confidentiality of the content of those disclosures and the identity of persons who make those disclosures.

Under the Act, Council must establish procedures to facilitate the making and handling of those disclosures.

The procedures, set out in this document, have been prepared in accordance with:

(a)the Act;

(b)the Regulations; and

(c)the Guidelines.

The procedures facilitate the making of disclosures and the subsequent handling of disclosures aboutimproper conduct or detrimental action by Council and its employees. Disclosures may be made by employees, Councillors or by members of the public.

The 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 under the Act in accordance with these procedures.

These procedures cover:

  • how disclosures may be made to Council;
  • how Council manages the receipt of disclosures;
  • how Council assesses disclosures it is able to receive under the Act;
  • notifications Council is required to make about disclosures, to both persons making a protected disclosure and to the IBAC; and
  • how Council protects certain people, including from detrimental action being taken against them in reprisal for making a protected disclosure.
  1. Scope

This policy applies to all Councillors, employees, volunteers, contractors and consultants of Council.

  1. Definitions

Word/Term / Definition
Act / Protected Disclosure Act 2012 (The “Act”)
Assessable disclosure / An assessable disclosure is a disclosure that:
  1. Council receives and considers may be a protected disclosure and so must be notified to IBAC; or
  2. is made directly to IBAC.

Council / Melton City Council
Corrupt conduct / Corrupt conduct means conduct:
  1. of any person that adversely affects the honest performance of a public officer’s or public body’s functions;
  2. of a public officer or public body that constitutes or involved the dishonest performance of his or her or its functions;
  3. of a public officer, former public officer or a public body that constitutes or involves knowingly or recklessly breaching public trust;
  4. of a public officer, former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their official functions; or
  5. conduct that could constitute a conspiracy or attempt to engage in any of the conduct set out in paragraphs A to D above,
being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.
Detrimental action / Detrimental action against someone who makes a protected disclosure includes:
  1. action causing injury, loss or damage;
  2. intimidation or harassment; and
  3. discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action.

Discloser / A person who (purports to) make(s) a complaint, allegation or disclosure (however described) under the Act
Disclosure / Any complaint, concern, matter, allegation or disclosure (however described) purported to be made in accordance with Part 2 of the Act
Guidelines / The Guidelines published by the IBAC under section 57 of the Act, including:
  1. for making and handling protected disclosures; and
  2. for protected disclosure welfare management.

IBAC / Independent Broad-based Anti-corruption Commission
IBAC Act / Independent Broad-based Anti-corruption Commission Act 2011
Improper conduct / Improper conduct means:
  1. Corrupt conduct (as set out in this section 3); or
  2. Specified conduct (as set out in this section 3) that is not corrupt conduct but that, if proved, would constitute:
(i)a criminal offence; or
(ii)reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of the officer who was, or is, engaged in that conduct.
Investigative entity / Any one of the four bodies authorised to investigate a protected disclosure complaint, being the IBAC, the Victorian Ombudsman, the Chief Commissioner of Police and the Victorian Inspectorate
Procedures / This version of the procedures of Council, as established under s 58 of the Act
Protected discloser / A person who makes a disclosure of improper conduct or detrimental action in accordance with the requirements of Part 2 of the Act
Protected disclosure / Any complaint, concern, matter, allegation or disclosure (however described) made in accordance with Part 2 of the Act
Protected disclosure complaint / A protected disclosure which has been determined and assessed by the IBAC to be a protected disclosure complaint under s 26 of the Act
Regulations / Protected Disclosure Regulations 2013
Relevant offence / Relevant offence means:
  1. a statutory indictable offence; or
  2. any of the following common law offences committed in Victoria:
(i)attempt to pervert the course of justice;
(ii)bribery of a public official;
(iii)perverting the course of justice.
Specified conduct / 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 paragraphs A to D above; 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—
(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.
VI / Victorian Inspectorate
  1. Reporting

4.1Internal Reporting Structures

Contact persons within Council

Employees and officers of Council or other persons who wish to make a protected disclosure may make that disclosure to:

  • the IBAC;
  • one of either their reporting line Supervisor, Manager or General Manager; or
  • one of either the Protected Disclosure Coordinator or the Chief Executive Officer.

Notwithstanding this, persons wishing to make a disclosure are encouraged to make their disclosure to the Protected Disclosure Coordinator or the Chief Executive Officer.

If the disclosure relates to the conduct of the Chief Executive Officer, the disclosure should be made to the Protected Disclosure Coordinator. If the disclosure relates to the conduct of the Protected Disclosure Coordinator, then the disclosure should be made to the Chief Executive Officer.

Where a line Supervisor, Manager or Director receives an approach to make a disclosure, they will before any details are provided, encourage the person to make their disclosure to the Protected Disclosure Coordinator or the Chief Executive Officer (preferably in that order).

Council’s Protected Disclosure Coordinator is Christine Denyer, Legal Officer.

Telephone: 03 9747 5367
Email:

How can a disclosure be made

A person may make a disclosure under Part 2 of the Act verbally or in writing.

Verbal disclosure

A person can make a verbal disclosure:

  • in person;
  • by phone;
  • by leaving a voice mail message; or
  • by any other form of electronic communication that does not require writing.

A verbal disclosure must be made in private. This means that the person making the disclosure must reasonably believe that only the following people are present or able to listen to the conversation:

  • the person making the disclosure;
  • a lawyer representing the person (if any); and
  • one or more people to whom a disclosure can be made under the Act or Regulations.

This does not preclude joint disclosures.

Written disclosure

A written disclosure can only be provided by:

  • personal delivery to an office of Council;
  • mail addressed to an office of Council;
  • email tothe Protected Disclosure Coordinator.

Letters are to be enclosed within a sealed envelope (and emails to include subject line) clearly marked:

“CONFIDENTIAL - Attention Protected Disclosure Coordinator – Christine Denyer”

Anonymous disclosure

All correspondence, phone calls and emails from internal or external disclosures will be referred to the Protected Disclosure Coordinator. The Protected Disclosure Coordinator has the authority to make enquiries of officers and employees within Council.

Where a person is contemplating making a disclosure and is concerned about approaching the Protected Disclosure Coordinator (or relevant manager or supervisor) he or she can call or email the Protected Disclosure Coordinator (or relevant manager or supervisor) and request a meeting in a discreet location away from the workplace.

A disclosure relating to Council or its employees may also be made directly to the other bodies listed in Table 1 below.

A disclosure about a Councillor must be made directly to IBAC or the Ombudsman.

Council can only address disclosures that relate to Council, or a member, officer or employee of Council. Disclosures about Councillors must be made to the IBAC or the Ombudsman.

Table 1: Summary of persons to whom disclosure may be made

Person who is the subject of the disclosure / Person/body to whom the disclosure may be made:
  • An employee of Council; or
  • Any person otherwise engaged by Council; or
  • Any person performing public function on behalf of Council (whether under contract or otherwise); or
  • Council itself.
/
  • Council to:
-the Protected Disclosure Coordinator;
-a manager or supervisor of the person making a protected disclosure; or
-a manager or supervisor of the person who is the subject of the disclosure.
-the CEO
  • IBAC; or
  • The Ombudsman; or
  • Victorian Inspectorate; or
  • Chief Commissioner of Police.

Councillor / IBAC or the Ombudsman
IBAC
Level 1, North Tower
459 Collins Street
Melbourne VIC 3000
GPO Box 24234
Melbourne VIC 3001
Website:
Online email enquiry form:

Tel: 1300 735 135
TTY: 1800 555 677
Fax: (03) 8635 6444 / Victorian Ombudsman
Level 9, North Tower
459 Collins Street
Melbourne VIC 3000
(DX 210174)
Website:
Email:
Tel: (03) 9613 6222
Toll Free (regional only): 1800 806 314
Victorian Inspectorate
PO Box 617 Collins Street West
Melbourne VIC 8007
Website:
Email:
Tel: (03) 8614 3225
Fax: (03) 8614 3200 / Chief Commissioner of Police
Victoria Police Centre switchboard
GPO Box 913
Melbourne VIC 3001
Website:
  1. Making a Disclosure

5.1What is a Disclosure and who can make a Disclosure?

The purpose of the Act is to encourage and facilitate the making of disclosures of:

(a)Improper conduct by public officers, public bodies and other persons; and

(b)Detrimental action taken in reprisal for a person making a disclosure.

The Act provides protection to persons making a protected disclosureunder the Act and persons who may suffer detrimental action in reprisal for those disclosures. It also provides for the confidentiality of the content of those disclosures and the identity of the disclosures. The Act establishes a process for the matters disclosed to be investigated and rectifying action to be taken.

The definitions of improper conduct, corrupt conduct, specified conduct and detrimental action are set out in section 3 of these procedures.

  1. Handling Disclosures

6.1Receiving Disclosure

When Council receives a complaint, report or allegation of improper conduct or detrimental action, the first step will be to ascertain whether it has been made in accordance with Part 2 of the Act. If the disclosure satisfies Part 2 of the Act, the person making a protected disclosure is entitled to receive protections under Part 6 of the Act.

6.2Assessing a Disclosure

There are two alternative tests under subsection 9(1) of the Act for determining whether there is a disclosure of improper conduct or detrimental action (the alleged conduct) that falls under Part 2 of the Act.

The initial assessment is made on the nature of the information disclosed or on the belief that the person making a protected disclosure has about the nature of the information, and not the person making a protected disclosure’s intention.

The two tests are:

(1)Does the information disclosed show, or tend to show, that there is improper conduct or detrimental action.

This requires Council to ascertain whether the information satisfies the ‘elements’ of improper conduct or detrimental action, as defined in the Act and whether any of the relevant exceptions apply. If it is not clear that the information disclosed does show or tend to show that there is improper conduct or detrimental action, then Council will apply the second test.

(2)Does the person making a protected disclosure believe on reasonable grounds that the information shows or tends to show there is improper conduct or detrimental action?

This means that the person must actually believe that the information shows, or tends to show, there is improper conduct or detrimental action. This means that the person's belief is based on facts that would be sufficient to make a reasonable person believe there was improper conduct or detrimental action.

According to the IBAC, simply stating that improper conduct or detrimental action is occurring, without providing any supporting information, would not be a sufficient basis for having a reasonable belief. In the IBAC’s view, a belief cannot be based on a mere allegation or conclusion unsupported by any further facts or circumstances.

Other matters that the IBAC suggests Council can consider are:

  • the reliability of the information provided by the person making a protected disclosure, even if it is second or third-hand;
  • the amount of detail that has been provided in the information disclosed; and
  • the credibility of the person making a protected disclosure, or of those people who have provided the person making a protected disclosure with information.
  • Where 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 these cases Council can take immediate action while considering whether or not it is an assessable disclosure that must be notified to IBAC or awaiting IBAC’s decision on a notified matter.

It may also be necessary to report criminal conduct to Victoria Police for immediate investigation, or take management action against an employee to prevent future conduct. Reporting the alleged conduct to the Victoria Police as criminal conduct, or taking legitimate management action against the subject of the disclosure in order to prevent future conduct, may be appropriate courses of action in these circumstances.

Examples of this provided by the IBAC include where the disclosure may be about:

  • a child protection worker allegedly sexually assaulting children in care;
  • a council worker allegedly lighting bush fires;
  • a person threatening to poison the water supply.

Section 52(3)(a)(iii) of the Act allows disclosure of the content of the disclosure by a person or body ‘to the extent necessary for the purpose of taking lawful action in relation to the conduct that is the subject of an assessable disclosure including disciplinary process or action’.

6.4Assessment Decisions

At the conclusion of the assessment, the Council will decide whether it considers the disclosure to be a protected disclosure. This decision will be made (within 28 days of Council receiving the disclosure) by the CEO in consultation with the Protected Disclosure Coordinator. If the Council decides that it may be a protected disclosure, IBAC will be notified of the disclosure. If the Council does not consider it to be a protected disclosure, then it may be a matter that the Council otherwise deals with through any other means.

6.5Notifications

If Council does not consider the Disclosure to be a Protected Disclosure

Where Council determines the disclosure is not a protected disclosure, the Protected Disclosure Coordinator or the CEO will notify the person who made the disclosure that:

  • Council considers the disclosure is not a protected disclosure;
  • the disclosure has not been notified to the IBAC for assessment under the Act; and
  • protections under Part 6 of the Act (relating to liability of the person making the disclosure and reprisal against that person) continue to apply.

Notification to the person making the disclosure is not necessary where the disclosure has been made anonymously.

If Council considers the Disclosure may be a Protected Disclosure

Where Council considers that the disclosure may be a protected disclosure under the Act, the Protected Disclosure Coordinator or the CEO will notify the:

  • disclosure to the IBAC for assessment under s 21 of the Act to determine whether it is a protected disclosure complaint within 28 days of receiving the disclosure. The IBAC may then assess, investigate or (in some circumstances) refer the disclosure to the Ombudsman or Victorian Inspectorate; and
  • person making a protected disclosure that:
  • the disclosure has been notified to the IBAC for assessment under the Act; and
  • it is an offence under section 74 of the Act to disclose that the disclosure has been notified to the IBAC for assessment under the Act.

In addition tonotifying the IBAC, Council may also provide the IBAC with any information obtained by Council regarding the disclosure in the course of its enquiries leading up to its notification of the disclosure to the IBAC.