Public Interest Disclosure

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Purpose of these procedures

These procedures establish an alternative system for reporting disclosures of improper conduct or detrimental action committed by the Department of Police, Fire and Emergency Management or its employees. The system enables such disclosures to be made to the Protected Disclosure Coordinator. Disclosures may be made by employees or by Department of Police, Fire and Emergency Management contractors or former contractors.

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 Public Interest Disclosures Act 2002 in accordance with these procedures.


Purpose of the Act

The Public Interest Disclosures Act 2002 (Act) commenced operation on 1 January 2004. The purpose of the Act is to encourage and facilitate the making of disclosures of improper conduct by public officers and public bodies. The Act provides protection to persons who make disclosures in accordance with the Act, and establishes a system for the matters disclosed to be investigated and rectifying action to be taken.


Definitions of key terms

Three key concepts in the reporting system are:

  • Improper conduct
  • Corrupt conduct, and
  • Detrimental action.

Definitions of these terms are set out below.

  1. Improper Conduct

A disclosure may be made about improper conduct by a public body or public official. Improper conduct means conduct that is corrupt, a substantial mismanagement of public resources, or conduct involving substantial risk to public health or safety or to the environment. The conduct must be serious enough to constitute, if proved, a criminal offence or reasonable grounds for dismissal.

  1. Corrupt Conduct
  • Conduct of any person (whether or not a public official) that adversely affects the honest performance of a public officer’s or public body’s functions
  • The performance of a public officer’s functions dishonestly or with inappropriate partiality
  • Conduct of a public officer, former public officer or a public body that amounts to a breach of public trust
  • Conduct by 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
  • A conspiracy or attempt to engage in the above conduct.
  1. Detrimental Action

The Public Interest Disclosures Act 2002 makes it an offence for a person to take detrimental action against a person in reprisal for a protected disclosure. Detrimental action includes:

  • 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, and
  • Threats of detrimental action.

Reporting System

Disclosures of improper conduct or detrimental action by employees of the Department of Police, Fire and Emergency Management may be made to the following officers:

Head of Agency
Commissioner of Police
47 Liverpool Street
HOBART  TAS  7000

Protected Disclosure Coordinator
Deputy Commissioner of Police
47 Liverpool Street
HOBART  TAS  7000

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 in the workplace, he or she can call the relevant officer and request a meeting in a discreet location away from the workplace.

The Ombudsman

A disclosure about improper conduct or detrimental action by the Department of Police, Fire and Emergency Management or its employees, may be made directly to the Ombudsman:

The Ombudsman
99 Bathurst Street
HOBART  TAS   7000

Website www.ombudsman.tas.gov.au
Email ombudsman@justice.tas.gov.au
Phone 1300 766 725 (local call cost within Australia)

Alternate contact persons

The following table sets out alternate persons to whom disclosures may be made:

(Body who is the subject of the disclosure & Body to whom the disclosure may be made)

  • Member, officer or employee of a public body (other than the police service)
    • That public body, or
    • State Service Commissioner (if applicable) or
    • The Ombudsman
  • Public body
    • The Ombudsman
  • Member of the Department of Police, Fire and Emergency Management
    • The Commissioner of Police, or
    • Deputy Commissioner of Police
  • The Commissioner of Police
    • The Ombudsman
  • Member of Parliament (Legislative Council)
    • President of the Legislative Council
  • Member of Parliament (House of Assembly)
    • Speaker of the House of Assembly
  • Councillor
    • The Ombudsman

Roles and Responsibilities

Employees

Employees are encouraged to report known or suspected incidences of improper conduct or detrimental action in accordance with these procedures if for any reason they are uncomfortable with other existing reporting processes.

All employees of the Department of Police, Fire and Emergency Management have an important role to play in supporting those who have made a legitimate disclosure. They must refrain from any activity that is, or could be perceived to be, victimisation or harassment of a person who makes a disclosure. Furthermore, they should protect and maintain the confidentiality of a person they know or suspect to have made a disclosure.

Protected Disclosure Coordinator

Protected Disclosure Coordinator will:

  • Be a contact point for general advice about the operation of the 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
  • Impartially assess the allegation and determine whether it is a disclosure made in accordance with Part 2 of the Act (that is, ‘a protected disclosure’)
  • Impartially assess each disclosure to determine whether it is a public interest disclosure
  • 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
  • Be responsible for carrying out, or appointing an investigator to carry out, an investigation of the public interest disclosure
  • Be responsible for carrying out, or appointing an investigator to carry out, an investigation referred by the Ombudsman
  • Be responsible for overseeing and coordinating an investigation where an investigator has been appointed
  • Appoint a Welfare Manager to support the discloser and to protect him or her from any reprisals
  • Advise the discloser of the progress of an investigation into the disclosed matter
  • Establish and manage a confidential filing system
  • Collate and publish statistics on disclosures made
  • Notify the Ombudsman as required, and
  • Liaise with the Commissioner of Police as Head of Agency.

Investigator

Where the Department of Police, Fire and Emergency Management has determined the matter is a public interest disclosure, or where the Ombudsman has referred a matter to the Department of Police, Fire and Emergency Management for investigation, the investigator will be responsible for carrying out an internal investigation into a disclosure. An investigator may be a person from within an organisation or a consultant engaged for that purpose.

Welfare Manager

The Welfare Manager is responsible for looking after the general welfare of the discloser. The welfare manager will:

  • Examine the immediate welfare and protection needs of a person 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.

Confidentiality

The Department of Police, Fire and Emergency Management 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.

The 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 constitutes an offence that is punishable by a maximum fine of 60 penalty units ($6000) or six months imprisonment or both.

The circumstances in which a person may disclose information obtained about a protected disclosure include

  • Where exercising the functions of the public body under the Act
  • When making a report or recommendation under the Act
  • When publishing statistics in the annual report of a public body, and
  • In criminal proceedings for certain offences in the Act.

However, the Act prohibits the inclusion of particulars in any report or recommendation that is likely to lead to the identification of the discloser. The Act also prohibits the identification of the person who is the subject of the disclosure in any particulars included in an annual report.

The Department of Police, Fire and Emergency Management will ensure all files, whether paper or electronic, are kept securely and can only be accessed by the Protected Disclosure Coordinator, the investigator or Welfare Manager (in relation to welfare matters). All printed material will be kept in files that are clearly marked as a Public Interest Disclosures Act matter, and warn of the criminal penalties that apply to any unauthorised divulging of information concerning a protected disclosure. All materials relevant to an investigation, such as tapes from interviews, will also be stored securely with the files.

The Department of Police, Fire and Emergency Management will not email documents relevant to a disclosed matter and will ensure all related phone calls and meetings are conducted in private.


Investigations

The Department of Police, Fire and Emergency Management will investigate every disclosure referred to it by the Ombudsman for investigation under s.41 or s.42 of the Act.

Unless the matters set out in 13.1.19.7 (2) – Matters Not Investigated apply, the Department of Police, Fire and Emergency Management will investigate every disclosure that it receives and determines is a public interest disclosure under s.33 of the Act.

The Protected Disclosure Coordinator will appoint an investigator to carry out the investigation.

The objectives of an investigation will be:

  • To collate information relating to the allegation as quickly as possible. This may involve taking steps to protect or preserve documents, materials and equipment
  • To consider the information collected and to draw conclusions objectively and impartially
  • To maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure, and
  • To make recommendations arising from the conclusions drawn concerning remedial or other appropriate action.

Where the Protected Disclosure Coordinator concludes that a disclosure is not a public interest disclosure, it may then be treated within the provisions of the Tasmania Police Manual 13.1 Complaints Against Police.

Matters Not Investigated

The Department of Police, Fire and Emergency Management may, in certain circumstances decide not to investigate a disclosed matter.

These are:

  • The disclosure is trivial, vexatious, misconceived or lacking in substance
  • The subject matter of the disclosure has already been adequately dealt with by the Ombudsman or a public body, statutory authority, commission, court or tribunal
  • Where the person making the disclosure has commenced proceedings in a commission, court or tribunal in relation to the same matter, and that commission, court or tribunal has power to order remedies similar to those available under this Act, or
  • The person making the disclosure had knowledge for more than 12 months of the disclosed matter before making the disclosure and failed to give a satisfactory explanation for the delay in making the disclosure.

Where the Protected Disclosure Coordinator decides not to investigate a disclosed matter for a reason set out in s.64 of the Act, he or she will, within 14 days notify the person who made the disclosure:

  • of the decision together with the reasons for the decision, and
  • advise the person that he or she may request the Department of Police, Fire and Emergency Management to refer the disclosure to the Ombudsman for a determination as to whether the disclosed matter is to be investigated and this request must be made within 28 days of the notification.

If the person does request a referral to the Ombudsman, the Department of Police, Fire and Emergency Management will immediately refer the matter to the Ombudsman.

Natural Justice

The principles of natural justice will be followed in any investigation of a public interest disclosure. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

The Department of Police, Fire and Emergency Management will have regard to the following issues in ensuring procedural fairness:

  • The person who is the subject of the disclosure is entitled to know the allegations made against him or her and must be given the right to respond. (This does not mean the person must be advised of the allegation as soon as the disclosure is received or the investigation has commenced)
  • If the investigator is contemplating making a report adverse to the interests of any person, that person should be given the opportunity to put forward further material that may influence the outcome of the report and that person’s defence should be fairly set out in the report
  • All relevant parties to a matter should be heard and all submissions should be considered
  • A decision should not be made until all reasonable inquiries have been made
  • The investigator or any decision maker should not have a personal or direct interest in the matter being investigated
  • All proceedings must be carried out fairly and without bias. Care should be taken to exclude perceived bias from the process, and
  • The investigator must be impartial in assessing the credibility of the disclosers and any witnesses. Where appropriate, conclusions as to credibility should be included in the investigation report.

Managing the welfare of the Discloser

Commitment to Protecting Disclosers

The Department of Police, Fire and Emergency Management is committed to the protection of genuine disclosers against detrimental action taken in reprisal for the making of protected disclosures. The Protected Disclosure Coordinator is responsible for ensuring disclosers are protected from direct and indirect detrimental action, and that the culture of the workplace is supportive of protected disclosures being made.

The Protected Disclosure Coordinator will appoint a Welfare Manager to all persons who have made a protected disclosure. The Welfare Manager will:

  • Examine the immediate welfare and protection needs of a person who has made a disclosure and, where the discloser is an employee, 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
  • Keep a contemporaneous record of all aspects of the case management of the discloser including all contact and follow-up action, and
  • Ensure the expectations of the discloser are realistic.

All employees are advised that it is an offence for a person to take detrimental action in reprisal for a protected disclosure. The taking of detrimental action in breach of this provision can also be grounds for making a disclosure under the Public Interest Disclosures Act and can result in an investigation. The maximum penalty is a fine of 240 penalty units ($24,000) or two years imprisonment or both.

Detrimental action includes:

  • 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), or
  • Threats of detrimental action.

Occurrence of Detrimental Action

If a discloser reports an incident of harassment, discrimination or adverse treatment that would amount to detrimental action taken in reprisal for the making of the disclosure, the Welfare Manager will:

  • Record details of the incident
  • Advise the discloser of his or her rights under the Act, and

Advise the Head of Agency or Protected Disclosure Coordinator of the detrimental action.

Where detrimental action is reported, the protected disclosure coordinator will assess the report as a new disclosure under the Act. Where the protected disclosure coordinator is satisfied that the disclosure is a public interest disclosure, it must be further investigated by the Department of Police, Fire and Emergency Management.

Disclosers Implicated In Improper Conduct

Where a person who makes a disclosure is implicated in improper conduct, the Department of Police, Fire and Emergency Management will handle the disclosure and protect the discloser from reprisals in accordance with the Act, the Ombudsman’s guidelines and these procedures. The Department of Police, Fire and Emergency Management acknowledges that the act of disclosing should not shield disclosers from the reasonable consequences flowing from any involvement in improper conduct. Section 18 of the 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.

The Head of Agency will make the final decision on the advice of the Protected Disclosure Coordinator 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 persons 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 Head of Agency must be satisfied 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 such action.

The Protected Disclosure Coordinator will thoroughly document the process including recording the reasons why the disciplinary or other action is being taken, and the reasons why the action is not in retribution for the making of the disclosure. The Protected Disclosure Coordinator will clearly advise the discloser of the proposed action to be taken, and of any mitigating factors that have been taken into account.


Management of persons against whom a disclosure is made

The Department of Police, Fire and Emergency Management recognises that employees against whom disclosures are made must also be supported during the handling and investigation of disclosures. The Department of Police, Fire and Emergency Management 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.

The Protected Disclosure Coordinator will ensure the person who is the subject of any disclosure investigated by or on behalf of the Department of Police, Fire and Emergency Management is:

  • Informed as to the substance of the allegations
  • Given the opportunity to answer the allegations before a final decision is made
  • Informed as to the substance of any adverse comment that may be included in any report arising from the investigation, and has
  • His or her defence set out fairly in any report.

Where the allegations in a disclosure have been investigated, and the person who is the subject of the disclosure is aware of the allegations or the fact of the investigation, the protected disclosure coordinator will formally advise the person who is the subject of the disclosure of the outcome of the investigation.

The Department of Police, Fire and Emergency Management will give its full support to a person who is the subject of a disclosure where the allegations contained in a disclosure are clearly wrong or unsubstantiated. If the matter has been publicly disclosed, the Commissioner of Police as the Head of Agency will consider any request by that person to issue a statement of support setting out that the allegations were clearly wrong or unsubstantiated.


Criminal Offences

Officers appointed to handle protected disclosures and all other Department of Police, Fire and Emergency Management employees are advised of the following offences created by the Act:

  1. It is an offence for a person to take detrimental action against a person in reprisal for a protected disclosure being made. The Public Interest Disclosures Act provides a maximum penalty of a fine of 240 penalty units or two years imprisonment or both.
  2. It is an offence for a person to divulge information obtained as a result of the handling or investigation of a protected disclosure without legislative authority. The Act provides a maximum penalty of 60 penalty units or six months imprisonment or both.
  3. It is an offence for a person to obstruct the Ombudsman in performing his responsibilities under the Act. The Act provides a maximum penalty of 240 penalty units or two years imprisonment or both.
  4. It is an offence for a person to knowingly provide false information under the Act with the intention that it be acted on as a disclosed matter. The Act provides a maximum penalty of 240 penalty units or two years imprisonment or both.

Further information is available from www.ombudsman.tas.gov.au