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Whistleblowing (Reporting Wrongdoing) Guidelines

Section 1 - Purpose

(1) This guideline supports the Public Interest Disclosure (Whistleblowing) Policy and Public Interest Disclosure (Whistleblowing) Procedure by providing additional advice for people who are aware of or suspect a wrongdoing with regards to Charles Sturt University (the University) and wish to report it.

(2) The advice in this guideline should not be relied upon solely when deciding to make a report of wrongdoing. Where there is any inconsistency between this guide and the Public Interest Disclosure (Whistleblowing) Policy or procedure, the PID Act, the Corporations Act, or any other higher document in the University's policy suite, the superior document will be taken to be correct.

Scope

(3) This guideline has the same scope as the Public Interest Disclosure (Whistleblowing) Policy.

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Section 2 - Glossary

(4) See the Public Interest Disclosure (Whistleblowing) Policy and Public Interest Disclosure (Whistleblowing) Procedure for definitions of terms used in this guideline.

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Section 3 - Policy

(5) See the Public Interest Disclosure (Whistleblowing) Policy.

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Section 4 - Procedure

(6) See the Public Interest Disclosure (Whistleblowing) Procedure.

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Section 5 - Guidelines

Wrongdoing that is a protected report under legislation

(7) The types of wrongdoing protected under the NSW Public Interest Disclosures Act are:

Breach of the GIPA Act: a failure to properly fulfil functions under the Government Information (Public Access) Act 2009 (GIPA Act), as well as to the Information Commissioner. Examples could include destroying, concealing or altering records to present them from being released, knowingly making decisions that are contrary to the legislation, or directing another person to make a decision that is contrary the legislation.
Corrupt conduct: is defined in the Independent Commission Against Corruption Act 1988 (ICAC Act). In summary, corrupt conduct is the dishonest or partial exercise of official functions by a public official. Examples could include the improper use of knowledge, power or position for personal gain or the advantage of others, acting dishonestly or unfairly, or breaching public trust, or a public official being influenced by a member of the public to use their position in a way that is dishonest, biased or breaches public trust.
Maladministration: is conduct that involves action or inaction of a serious nature that is contrary to law, unreasonable, unjust, oppressive or improperly discriminatory, or based wholly or partly on improper motives. Examples could include making a decision and/or taking action that is unlawful or making a decision not based on the merits of the matter under consideration. Maladministration can also include conduct considered corrupt under the ICAC Act.
Serious and substantial waste of public money: is the uneconomical, inefficient or ineffective use of resources that could result in losing or wasting public money. Examples could include not following a competitive tendering process for a large scale contract, or having poor or no processes in place when administering large amounts of public funds. Reports of serious and substantial waste of public money made to the Auditor-General must be made in accordance with the Public Finance and Audit Act 1983.

(8) Reports and disclosures of wrongdoing will not be protected under the NSW Public Interest Disclosures Act if they:

principally involve questioning the merits of government policy, or
are made solely or substantially with the motive of avoiding disciplinary action (this does not apply to a person reporting a reprisal – see the ‘Responding to allegations of reprisal’ section of the Public Interest Disclosure (Whistleblowing) Procedure.

(9) The types of wrongdoing protected under the Commonwealth Corporations Act are:

misconduct, or an improper state of affairs or circumstances, in relation to the University or controlled entities of the University,
conduct that constitutes an offence against, or a contravention of, a provision of any of the following:
1. the Corporations Act
2. the Australian Securities and Investments Commission Act 2001
3. the Banking Act 1959
4. the Financial Sector (Collection of Data) Act 2001
5. the Insurance Act 1973
6. the Life Insurance Act 1995
7. the National Consumer Credit Protection Act 2009
8. the Superannuation Industry (Supervision) Act 1993
9. an instrument made under any Act referred to in this sub-clause
conduct that is an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more, or
conduct that represents a danger to the public or the financial system.

Information to be included in a report of wrongdoing

(10) Where possible, a person reporting a wrongdoing to an authorised disclosure officer stated in the Public Interest Disclosure (Whistleblowing) Policy should:

outline details of the wrongdoing, including any supporting documentation the reporter is able to provide
provide a written statement indicating whether the reporter:
1. consents to their identity being disclosed to the University without limitation,
2. consents to their identity being disclosed to the University subject to limitations (for example, for their identity not to be disclosed to certain individuals only), or
3. wishes to remain anonymous, and
provide contact details where the reporter would like to receive feedback on the report.

(11) Reporters wishing to remain anonymous may use a pseudonym or non-identifying email address to submit a report under the Public Interest Disclosure (Whistleblowing) Policy.

(12) Notwithstanding any requests to protect the confidentiality of the reporter, the Public Interest Disclosure (Whistleblowing) Policy states the situations where the reporter may be identified and the Public Interest Disclosure (Whistleblowing) Procedure states how the disclosure coordinator or disclosure manager will address these situations.

False or misleading statements

(13) It is important that all staff are aware that it is a criminal offence under the PID Act to wilfully make a false or misleading statement when reporting wrongdoing. The University will not support staff who wilfully make false or misleading reports. Such conduct may also be a breach of the Code of Conduct resulting in disciplinary action.

How the risk of reprisal and workplace conflict may be managed

(14) When a staff member reports wrongdoing, the disclosure coordinator or disclosure manager will undertake a thorough risk assessment to identify the risk to the reporter of detrimental action in reprisal for reporting, as well as indirect but related risks of workplace conflict or difficulties. The risk assessment will also identify strategies to deal with those risks and determine the level of protection and support that is appropriate.

(15) Depending on the circumstances, the University may:

relocate the reporter or the person who is the subject of the allegation within the current workplace,
transfer the reporter or the person who is the subject of the allegation to another position for which they are qualified, or
grant the reporter or the person who is the subject of the allegation leave of absence during the investigation of the disclosure.

(16) These courses of action are not punishment and will only be taken in consultation with the reporter.

(17) It is important for people to understand the nature and limitations of the protections provided by the PID Act and Corporations Act. The acts protect people from detrimental action being taken against them because they have made, or are believed to have made, a disclosure in accordance with the Public Interest Disclosure (Whistleblowing) Policy. It does not protect staff from disciplinary action or other management action where the University has reasonable grounds to take such action.

Confidentiality of reports

Anonymous reports

(18) The person reporting wrongdoing must only discuss the report with those responsible for dealing with it as stated in the Public Interest Disclosure (Whistleblowing) Procedure. The fewer people who know about the report, before and after it is made, the more likely it will be that the reporter can be protected from reprisal.

(19) The University will take steps to keep a reporter’s identity and the reported wrongdoing confidential. Where it is not possible to keep a reporter’s identity confidential, this will be discussed with the reporter and a plan will be developed in consultation with the reporter to support and protect the reporter from reprisal.

(20) The University will accept an anonymous report made in accordance with the Public Interest Disclosure (Whistleblowing) Policy, however:

reporters of wrongdoing are encouraged to identify themselves as this allows the University to provide the reporter with any necessary protection and support, as well as feedback about what action is to be taken or has been taken to deal with the issues raised in the report or the outcome of any investigation.
it is important to realise than an anonymous report of wrongdoing may not prevent a reporter from being identified by the subjects of the report or colleagues. If the University does not know who made the report, it may not be possible to prevent any reprisal should others identify the reporter.

Support for those reporting wrongdoing

(21) The University will make sure that staff who have reported wrongdoing, regardless of whether their report is treated as a protected report, are provided with access to any professional support they may need as a result of the reporting process, such as stress management or counselling services.

(22) Access to support may also be available for other staff involved in the internal reporting process where appropriate. Reporters and other staff involved in the process can discuss their support options with the disclosure coordinator.

Members of Parliament or journalists

(23) As stated in the Public Interest Disclosure (Whistleblowing) Policy, any person considering reporting a wrongdoing to a member of parliament, a journalist or an external lawyer must review the relevant provisions of the PID Act and the Corporations Act to ensure their disclosure meets the necessary conditions for a protected report. The following table is a summary only, and should not be used for deciding whether to make a disclosure to a member of parliament of journalist:

Comparison of requirements for protected disclosure to members of parliament and journalists under the PID Act and Corporations Act.
a) Under the Public Disclosures Act:	a) Under the Corporations Act:
The person making the report of wrongdoing is one of the eligible people stated at clause 12a of the Public Interest Disclosure (Whistleblowing) Policy. The person is disclosing a wrongdoing stated at clause 7 of this guideline. The person disclosing a wrongdoing to an MP or a journalist must have already made substantially the same report to one of the following: the principal officer an authorised disclosure officer listed in the Public Interest Disclosure (Whistleblowing) Policy an Investigating Authority listed in the Public Interest Disclosure (Whistleblowing) Policy The University contact or the Investigating Authority that received the initial report must have either: decided not to investigate the matter, decided to investigate the matter, but not completed the investigation within six months of the original report, investigated the matter but not recommended any action as a result, or not told the person who made the report, within six months of the report being made, whether the matter will be investigated. The reporter disclosing the wrongdoing to an MP or a journalist must be able to provide that they have reasonable grounds for believing that the disclosure is substantially true and that it is in fact substantially true.	The person making the report of wrongdoing is one of the eligible people stated at clause 12b of the Public Interest Disclosure (Whistleblowing) Policy. The person is disclosing a wrongdoing stated at clause 9 of this guideline. The person disclosing a wrongdoing to an MP or journalist must have already made substantially the same report to: an authorised disclosure officer listed in the Public Interest Disclosure (Whistleblowing) Policy, or an Investigating Authority listed in the Public Interest Disclosure (Whistleblowing) Policy. Before making a disclosure to an MP or journalist all of the following requirements must be met: at least 90 days have passed since the previous disclosure was made, the person does not have reasonable grounds to believe that action is being, or has been, taken to address the matters to which the previous disclosure related, the person has reasonable grounds to believe that making a further disclosure of the would be in the public interest, and after at least 90 days and before the disclosure to an MP or journalist is made, the person gave the University contact or investigating authority to which the previous disclosure was made a written notification that: includes sufficient information to identify the previous disclosure, states that the person intends to make a public interest disclosure, and the extent of the information is no greater than is necessary to inform the MP or journalist of the wrongdoing, in accordance with the Corporations Act. Alternatively, an emergency disclosure made to an MP or a journalist may qualify for protection if all of the following are met: The person making the report of wrongdoing is one of the eligible people stated at clause 12b of the Public Interest Disclosure (Whistleblowing) Policy. The person is disclosing a wrongdoing stated at clause 9 of this guideline. The person disclosing a wrongdoing to an MP or journalist must: have previously made a disclosure of that information (the previous disclosure) that qualifies for protection under the Public Interest Disclosure (Whistleblowing) Policy and the Corporations Act have reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment give the person, contact or authority to which the previous disclosure was made a written notification that: includes sufficient information to identify the previous disclosure states that the reporter intends to make an emergency disclosure and the extent of the information disclosed in the emergency disclosure is no greater than is necessary to inform MP or journalist of the substantial and imminent danger.

Comparison of requirements for protected disclosure to members of parliament and journalists under the PID Act and Corporations Act.

a) Under the Public Disclosures Act:

a) Under the Corporations Act:

The person making the report of wrongdoing is one of the eligible people stated at clause 12a of the Public Interest Disclosure (Whistleblowing) Policy.
The person is disclosing a wrongdoing stated at clause 7 of this guideline.
The person disclosing a wrongdoing to an MP or a journalist must have already made substantially the same report to one of the following:
1. the principal officer
2. an authorised disclosure officer listed in the Public Interest Disclosure (Whistleblowing) Policy
3. an Investigating Authority listed in the Public Interest Disclosure (Whistleblowing) Policy
The University contact or the Investigating Authority that received the initial report must have either:
1. decided not to investigate the matter,
2. decided to investigate the matter, but not completed the investigation within six months of the original report,
3. investigated the matter but not recommended any action as a result, or
4. not told the person who made the report, within six months of the report being made, whether the matter will be investigated.
The reporter disclosing the wrongdoing to an MP or a journalist must be able to provide that they have reasonable grounds for believing that the disclosure is substantially true and that it is in fact substantially true.

The person making the report of wrongdoing is one of the eligible people stated at clause 12b of the Public Interest Disclosure (Whistleblowing) Policy.
The person is disclosing a wrongdoing stated at clause 9 of this guideline.
The person disclosing a wrongdoing to an MP or journalist must have already made substantially the same report to:
1. an authorised disclosure officer listed in the Public Interest Disclosure (Whistleblowing) Policy, or
2. an Investigating Authority listed in the Public Interest Disclosure (Whistleblowing) Policy.
Before making a disclosure to an MP or journalist all of the following requirements must be met:
1. at least 90 days have passed since the previous disclosure was made,
2. the person does not have reasonable grounds to believe that action is being, or has been, taken to address the matters to which the previous disclosure related,
3. the person has reasonable grounds to believe that making a further disclosure of the would be in the public interest, and
4. after at least 90 days and before the disclosure to an MP or journalist is made, the person gave the University contact or investigating authority to which the previous disclosure was made a written notification that:
  1. includes sufficient information to identify the previous disclosure,
  2. states that the person intends to make a public interest disclosure, and
  3. the extent of the information is no greater than is necessary to inform the MP or journalist of the wrongdoing, in accordance with the Corporations Act.
Alternatively, an emergency disclosure made to an MP or a journalist may qualify for protection if all of the following are met:
1. The person making the report of wrongdoing is one of the eligible people stated at clause 12b of the Public Interest Disclosure (Whistleblowing) Policy.
2. The person is disclosing a wrongdoing stated at clause 9 of this guideline.
3. The person disclosing a wrongdoing to an MP or journalist must:
  1. have previously made a disclosure of that information (the previous disclosure) that qualifies for protection under the Public Interest Disclosure (Whistleblowing) Policy and the Corporations Act
  2. have reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment
  3. give the person, contact or authority to which the previous disclosure was made a written notification that:
    1. includes sufficient information to identify the previous disclosure
    2. states that the reporter intends to make an emergency disclosure and
    3. the extent of the information disclosed in the emergency disclosure is no greater than is necessary to inform MP or journalist of the substantial and imminent danger.