Template Policy and Procedure for Managing Public Interest Disclosures

TEMPLATE:

Public Interest Disclosures Procedure

For Category 2 Water Authorities and River Improvement Trusts

Month-X 2014

Prepared by: Employee Relations Unit, Human Resources, Business and Corporate Partnerships, Department of Natural Resources and Mines

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January 2014

CCI job number

Contents

1 Purpose 1

2 What is a Public Interest Disclosure (PID)? 1

3 Definitions and terms 1

4 Who is covered by this procedure 2

5 What types of wrongdoing can be reported 3

5.1 Employees 3

5.2 Members of the public 3

5.3 Further information 3

6 Organisational commitment 4

7 Making a PID 4

7.1 Making a PID to a journalist 5

8 Managing a PID 5

9 Discloser support and protection 6

9.1 Risk assessment for reprisal 6

9.2 Assessment of need for support 7

9.3 Protective measures 7

9.4 Managing reprisals 8

9.5 Means for complying with confidentiality 8

10 The rights of review, both internal and external 8

11 Role and responsibilities 9

12 The rights of subject officers 9

13 Reporting 10

14 Further information and resources 10

15 Approval by CEO 11

16 Version History 11

17 Review 11

Public Interest Disclosures Procedure: For category 2 water authorities and river improvement trusts

1 Purpose

The purpose of this procedure is to outline the entities’ commitment to, and the procedures for, receiving and managing public interest disclosures to comply with section 28 of the Public Interest Disclosures Act 2010 (the PID Act) and the Public Interest Disclosure Standard No.1 (the PID Standard). From 1 January 2013, the Office of the Ombudsman (Queensland) is the oversight agency for the Act. Section 6.1.2 of the PID Standard requires the Chief Executive to develop and implement procedures for dealing with public interest disclosures (PIDs).

2 What is a Public Interest Disclosure (PID)?

A PID is a complaint or a disclosure of information that is in the public interest, about wrong doing in the public sector. Members of the public, as well as employees of a public sector entity, may make a PID.

For an allegation to be considered a PID and attract the protections under the PID Act it must be:

· public interest information about substantial and specific wrongdoing or danger;

· an appropriate disclosure; and

· made to a proper authority (see section 7 below).

An appropriate public interest disclosure is where the:

· discloser has an honest belief, on reasonable grounds, that the information they have tends to show the conduct or other matter, or

· the information the discloser has tends to show the conduct or other matter being alleged, regardless of the discloser’s belief.

The Act does not provide for protection of a person who:

· fails to follow the correct disclosure process

· intentionally gives false or misleading information

· makes a PID directly to or through the media rather than through the approved process (e.g. making a disclosure to a journalist before following due departmental process)

3 Definitions and terms

Discloser: a person who makes a public interest disclosure.

Maladministration: administrative action that:

· was taken contrary to law; or

· was unreasonable, unjust, oppressive, or improperly discriminatory; or

· was unreasonable, unjust, oppressive, or improperly discriminatory in the particular circumstances even though it is within the law; or

· was taken for an improper purpose, or on irrelevant grounds, or having regard to irrelevant considerations; or

· was an action for which reasons should have been given, but were not given; or

· was based wholly or partly on a mistake of law or fact; or

· was wrong.

Misconduct: inappropriate or improper conduct in an official capacity or inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Natural justice – also referred to as procedural fairness. The rules of natural justice require that a decision-maker is not biased in any way, gives all parties a fair hearing, ensures all parties are informed and allowed to comment, and takes into account a person’s point of view on any matter that adversely affects them.

Official misconduct: conduct concerned with the performance of an officer’s duties that is not honest or impartial, a breach of the trust placed in the person, or a misuse of information or material acquired through the officer’s position that could, if proved, be:

· a criminal offence; or

· a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment.

Proper authority – persons and organisations authorised under the PID Act to receive public interest disclosures.

Examples of proper authorities are —

· a public sector organisation that is the subject of the PID. A public sector entity is a proper authority if the disclosure is about the conduct of that entity or its employees.

· an agency you believe has authority to investigate the matter. For example, the Crime and Misconduct Commission is a proper authority for disclosures about official misconduct.

· the Chief Judicial Officer of a court or tribunal when the report is about suspected official misconduct or reprisal by judicial officers.

· a Member of the Legislative Assembly (an MP).

Protected discloser: a person who makes a PID in accordance with provisions contained within the PID Act and who is granted protected status (previously known as “whistleblower protection status”).

Public Interest Disclosure (PID): a disclosure of information specified in the PID Act (sections 12 and 13) and made to an appropriate public sector entity that has the responsibility or power to take appropriate action about the information disclosed or to provide an appropriate remedy.

Public sector entity: As defined in the PID Act, a public sector entity includes the following:

· an entity established under an Act or under State or local government authorisation for a public, State or local government purpose

· an entity, prescribed under a regulation, that is assisted by public funds

· a department Note: The following are, or are included in, departments: the Queensland Ambulance Service, the Queensland Fire and Rescue Service, the Queensland Police Service.

· a local government

Refer to section 6 of the PID Act for details of other public sector entities included in this definition.

Reprisal: causing, attempting to or conspiring to cause, detriment to another because, or in the belief that, they have made, or intend to make, a PID.

PID: Public Interest Disclosure

Subject officer: the person about whom a PID is made.

Substantial and specific – While not defined in the Act, substantial means “of a significant or considerable degree”. It must be more than trivial or minimal and have some weight or importance.

Specific means “precise or particular”. This refers to conduct or detriment that is able to be identified or particularised as opposed to broad or general concerns or criticisms.

4 Who is covered by this procedure

Public sector entities are required to comply with the PID Act and the PID Standard No.1. Section 28 of the PID Act and section 6.1.2 of the PID Standard require the chief executive officer of a public sector entity to develop and implement procedures for dealing with PIDs. Category 2 water authorities (water authorities) and river improvement trusts (trusts) are public sector entities. This procedure covers PIDs regarding water authorities and trusts.

This procedure applies to employees of water authorities/trust which include:

· chairpersons

· directors

· employees

· immediate contractors of the water authority or trust.

Subcontractors and volunteers are not classified as employees and therefore this procedure does not apply to them. However they can still make a public interest disclosure as a member of the public.

5 What types of wrongdoing can be reported

5.1 Employees

Those listed above as employees covered by this procedure may make a PID about:

· conduct of another person that could be official misconduct

· conduct of another person that could be maladministration that adversely affects a person’s interests in a substantial and specific way

· a substantial misuse of public resources (other than an alleged misuse based on mere disagreement over policy that may properly be adopted about amounts, purposes or priorities of expenditure)

· substantial and specific danger to the environment

· substantial and specific danger to public health or safety

· substantial and specific danger to the health or safety of a person with a disability

· a reprisal because of a belief that a person has made, or intends to make a PID.

5.2 Members of the public

Members of the public may make a PID about any of the following:

· a substantial and specific danger to the environment

· a substantial and specific danger to the health or safety of a person with a disability

· a reprisal because of a belief that a person has made or intends to make a PID.

5.3 Further information

Individuals considering making a PID should refer to the ‘Resources Page’ on the Queensland Ombudsman’s website <www.ombudsman.qld.gov.au> and in particular refer to the Fact Sheet for Disclosures No.2 Thinking about reporting wrongdoing.

Further details on PIDs and the conditions for gaining the protections of the PID Act, are contained in the Queensland Ombudsman’s Fact Sheet for Disclosers No.1 What’s a Public Interest Disclosure. Employees should also refer to the Guide – Thinking about blowing the whistle? Making a public interest disclosure – A guide for individuals working in the public sector.

6 Organisational commitment

The water authority/trust encourages and supports employees and others to disclose information about suspected wrongdoing, including PIDs. Encouraging people to report their concerns about suspected wrongdoing will assist in creating improved transparency, accountability and openness in decisions and actions. It will also enable corrective action to be taken where serious problems are found.

The water authority/trust commits to ensuring The that all PIDs received are properly assessed, investigated and managed, including appropriate action taken in relation to any wrongdoing disclosed in a PID. Appropriate support, confidentiality and protection from reprisals will be provided to disclosers.

Any allegations of official misconduct arising from a PID must be reported to the Crime and Misconduct Commission (CMC).

7 Making a PID

To be treated as a PID, a disclosure must be made to a ‘proper authority’ as defined in section 5 of the PID Act.

The water authority/trust is the proper authority for receiving PIDs about:

· the conduct of the water authority/trust or its employees

· anything the water authority/trust has a power to investigate or remedy, and

· the conduct of another person that could, if proved, be a reprisal that relates to a previous disclosure made by the person to a proper authority.

A PID may be made to the Chairperson or an employee of the water authority/trust. These matters may also be reported a public sector entity that has the power to investigate or remedy the matter or to a Member of the Legislative Assembly. The Table 1 is a guide to the appropriate external entities for receiving PIDs. If a disclosure relates to more than one category (for example, a danger to public health and a misuse of resources), one of the appropriate entities should be contacted for advice. For further information contact the Office of the Queensland Ombudsman.

Table 1: A guide to the appropriate external entities for receiving PIDs

Conduct / Appropriate external entity
Official misconduct / Crime and Misconduct Commission
Danger to the environment / Department of Natural Resources and Mines (Refer Appendix A)
Department of Environment and Heritage Protection
or the relevant local council
Danger to the public health or safety / Queensland Health
Health Quality and Complaints Commission
Queensland Police Service, or the relevant local council
Danger to health and safety of a person with a disability / Department of Communities
Child Safety and Disability Services
Adult Guardian or Queensland Health
Substantial loss of public funds / Queensland Audit Office
Reprisal / Crime and Misconduct Commission (a reprisal would normally constitute official misconduct)
Maladministration / Queensland Ombudsman

Ideally PID information should include:

· the name and job title of the person who is the subject of the disclosure

· information about relevant events, dates and places

· the names of people who may be able to provide additional information

· your contact details (for communication about the PID assessment and outcome).

A discloser should clearly advise the person receiving their disclosure that they are seeking to make a PID in accordance with the PID Act, to ensure their disclosure is treated with strict confidentiality and can be assessed for PID status and appropriate protection. For more information refer to the Fact Sheet No.2 – Thinking about reporting wrongdoing?

A PID may be made in any form (face-to-face, by email or letter, etc.) including anonymously. However, the successful investigation of a disclosure often depends on the ability of the investigating officer(s) to obtain further information from the person making the disclosure. By remaining anonymous the discloser may limit the possibilities of the PID being resolved. Additionally it may be difficult for anonymity to be maintained as matters divulged in the disclosure may enable those involved to trace the identity of the discloser.

Under the PID Act, DNRM is the appropriate agency to receive and deal with particular PIDs alleging substantial and specific danger to the environment. Refer to Appendix A for details.

If the allegation is not related to one of the listed subjects within this section, refer to Table 1 (page 4) – A guide to the appropriate external entities to receive PIDs or contact the Office of the Queensland Ombudsman to identify the proper authority to receive the disclosure.