This is the Issued [printed] version of
PROTECTED DISCLOSURES
Section 24.13
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[DEFINITIONS]
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24.13.01 All staff of Macquarie University are expected to perform their duties with efficiency, fairness, impartiality, integrity, honesty, and compassion.
24.13.02 The University's Code of Conduct (adopted by Council in August 1993 - see Section 24.01) recognises that all members of staff have "an obligation to the University in terms of responsible use of its resources and protection of its reputation in the wider community".
24.13.03 Members of staff are asked to avoid the improper use of the resources of the University and 'to avoid any financial or other interest or undertaking that could directly or indirectly compromise the performance of their duties'. As the Code notes, in many cases, only the individual staff member will be aware of the potential for conflict. Therefore, the onus is on that person to notify the appropriate senior member of staff if a potential or actual conflict of interest arises.
24.13.04 The Code of Conduct notes that all members of staff have 'a duty to report to a senior staff member any behaviour by another staff member which is in breach of the legal requirements of the other staff member's employment with the University.'.
24.13.05 This Section outlines a number of ways that members of staff or external parties can report such matters. Attention is drawn to the special procedures for dealing with matters possibly of a serious and substantial nature.
24.13.06 This Section is NOT intended to cover complaints by staff associated with a personal grievance or redress (such as unsatisfactory probation reports, refusal of leave, or work assignments which are felt to be unfair), nor with personal complaints associated with workplace safety, work place discrimination or equal employment opportunity. These should be taken up with the Personnel Office or the Equal Employment Opportunity Officer.
24.13.07 The successful development of an ethical environment relies upon individuals having responsibility for their own professional behaviour taking into consideration the provisions of the Code of Conduct, policies of the University, expectations of the University Community and advice of senior colleagues. If there is any doubt as to the applicability of the Code, or the use of these procedures or of some other appropriate course of action, the matter should be discussed with an appropriate senior member of staff.
Council Resolution of 27 August 1993 (Resolution 93/169)
Code of Conduct (Section 24.01)
Macquarie University General Staff Enterprise Agreement 1997 Clause 11.01
Macquarie University Academic Staff and English Language Centre Teachers Enterprise Agreement 1997 Clause 11.01
24.13.08 The main legislation which is relevant to University staff includes:
24.13.09 'Corrupt conduct' is defined broadly in the Independent Commission Against Corruption (ICAC) Act 1988, as 'the dishonest or partial exercise of their official function by a public official'. University staff (both Academic and General) come within the definition of 'public official' and are subject to the Act.
24.13.10 In general terms corruption involves improper acts or omissions, improper use of influence or position, and/or improper use of information. It can also be defined as misuse of public office which involves a criminal offence, a disciplinary offence or reasonable grounds for dismissal.
24.13.11 The ICAC has indicated in its June 1996 'What is Corruption?' pamphlet that 'the ICAC focuses on corruption which is systemic and of a significant nature'. It notes that 'for the ICAC to become involved in an issue, the conduct must involve a criminal or disciplinary offence, or conduct serious enough to warrant dismissal'.
24.13.12 The pamphlet goes on to list some forms of corruption as including:
24.13.13 The ICAC pamphlet cites as examples the payment of bribes to influence tendering; the use of resources for private purposes; and the sale of address details and other abuses of confidential information.
24.13.14 Other examples of corrupt conduct could include:
24.13.15 Fraud is generally regarded as a subset of corruption. The difference is primarily that fraud involves personal gain. For instance taking a bribe in order to favour a tender submission could be regarded as fraud. If no bribe were involved, that is, if favouritism were given to a tenderer and no personal gain is involved then this would be regarded as corrupt.
24.13.16 Where an person receiving a complaint is in any doubt as to the significance of the matters involved, that person might initially seek the advice of an appropriate Head of Division or Office, the Director, Management Audit or the Personnel Office. In the event of any continuing doubt, the matter should be referred to the Deputy Vice-Chancellor (Administration) for assessment.
24.13.17 'Maladministration' is defined in the Protected Disclosures Act 1994, at S 11 (2) as 'action or inaction of a serious nature that is;
24.13.18 'Serious and substantial waste of public money' has been given the following working definition by the NSW Auditor-General:
Protected Disclosures Act 1994
24.13.19 The particular object of the Protected Disclosures Act 1994 (known colloquially as the Whistleblowers' Act) was 'to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration and serious and substantial waste in the public sector'.
24.13.20 In most instances of a staff member raising a concern or making a complaint, it should not be necessary to involve this Act. However, there can be circumstances where the situation or anxieties of the staff member are such that it may be necessary for the confidentiality arrangements and other protections of this Act to be invoked. The information provided below is a summary only and copies of the Act are held by the Personnel Office.
24.13.21 The contact officer for the University in respect of this Act is the Deputy Vice-Chancellor (Administration), who functions as the University's Disclosures Co-ordinator.
24.13.22 For a staff member to have protection under the Act, their report must be made voluntarily and it must be based on known or suspected grounds, as opposed to being a mere allegation. The staff member should indicate of their own initiative (or after discussion) that they wish to be protected under the Act.
24.13.23 The Disclosures Co-ordinator may decline under the Act to investigate, or may discontinue an investigation, if the disclosure is made frivolously or vexatiously. Disclosures that principally question the merits of Government policy are not protected; nor are reports that are substantially motivated by the object of otherwise avoiding disciplinary action.
24.13.24 The University is required to take every reasonable measure to ensure confidentiality of the identity of a person who has made a protected disclosure. However, identifying information can be disclosed where written permission is given, or may have to be disclosed where it is essential having regard to the principles of natural justice or where necessary to investigate the matter effectively (or where otherwise in the public interest to do so).
24.13.25 A member of staff making a protected disclosure is protected in respect of the disclosure against victimisation or reprisal (such as local harassment, transfer, dismissal, or other discriminatory treatment). Criminal penalties are provided for persons who undertake any such detrimental action.
24.13.26 A member of staff who has made a protected disclosure also has a defence of absolute privilege in any proceedings for defamation in respect of the disclosure.
24.13.27 The Disclosures Co-ordinator is obliged under the Act to notify the person making a protected disclosure, within 6 months of the disclosure being made, of the action taken or proposed to be taken.
24.13.28 Provision is also made in the Act that where there has been a failure by the University to act on a complaint or to advise the staff member concerned of the action taken within 6 months, the staff member can refer their disclosure to a member of Parliament or to a journalist and, in certain circumstances, still be protected against victimisation, reprisal, etc.
24.13.29 The University encourages all members of staff and students (or external parties such as University suppliers or members of the community) to raise any concerns they may have in respect of known (or suspected) criminal or corrupt conduct, maladministration or waste.
24.13.30 Reflecting the values of the Code of Conduct, the University would ask and expect all parties involved to raise and deal with such matters in good faith and in a constructive manner.
24.13.31 Most complaints or concerns are best raised, in the first instance, with the immediate supervisor. This can be a workplace supervisor, a unit manager or a Head of Division or Office. On receiving a complaint or concern, the supervisor, Head of Division or Office, etc., should assess whether it is of a kind that can be addressed immediately by way of explanation, or whether it requires further attention by management. If further attention is called for, the staff member (or external party) should be advised of the follow-up action proposed and of how she or he, will be informed of any outcomes. Any concerns that the person making the report may have with confidentiality should be clarified at the outset.
24.13.32 Experience suggests that many of these complaints or concerns regarding the conduct of individuals can be speedily resolved through explanation. They can be the result of misinformation, of error, or of an inadequate understanding of correct procedures on the part of one or more parties.
24.13.33 Where the complaint or concern has revealed matters that are minor, or the result only of error or misunderstanding, it would be expected that they should be resolved locally, with the individual making the complaint or raising a concern being appropriately informed of the action taken. Such local action would be the normal exercise of the supervisor or Head of Division or Office's supervisory and management responsibilities.
24.13.34 In some instances, however, inappropriate conduct or administrative breakdowns can be revealed as the result of a staff member's initiative. There can be a requirement for corrective or clarifying measures to be taken locally or by the University as a whole. This could involve:
24.13.35 In the event that formal counselling, warning or some other staff disciplinary action appeared warranted, the matter should be referred to the Personnel Office in the first instance.
24.13.36 In all this, confidentiality can be important to assist investigations; to protect the person making the report; and to protect the reputations of innocent people. However, it should be appreciated that the University cannot guarantee complete confidentiality in all circumstances. The principles of natural justice may require disclosure of the original complaint. In a similar way, it may not be possible to investigate the matter effectively without some disclosure. The University may also have obligations in some situations to inform external agencies such as the Independent Commission Against Corruption (ICAC) or the Police. The Personnel Office, the University Solicitor or the Director, Management Audit may be of assistance to the supervisor, Head of Division or Office, etc., with advice or guidance at this point.
24.13.37 If the staff member (or external party) is of the belief that their complaint or concern has not been dealt with satisfactorily, they should raise the matter with a Head of Division or Office (if they have not already done so in the first place). A staff member (or external party) also has the alternative of taking their concern or complaint direct to the University's Disclosure's Co–ordinator.
24.13.38 From time-to-time, a complaint or concern will indicate from the outset or on further enquiry the possibility that corrupt conduct or serious and substantial matters of maladministration or waste may be involved (see Definitions). In these instances, special reporting, confidentiality and other processing arrangements apply.
24.13.39 Where corrupt conduct or serious and substantial matters may be involved, it is important that the supervisor, Head of Division or Office, etc., initially receiving the complaint or information prepare a confidential report of the precise matters raised and the grounds on which the complaint or disclosure was made. (This report is a confidential University document. It is not provided to either the complainant or the person named in the allegation.)
24.13.40 The report should also indicate the date on which the complaint or information was received and, wherever possible, the detail should be confirmed by signature by the staff member (or external party) making the complaint. The report should be accompanied by any documentation that might be available.
24.13.41 If the officer receiving the complaint of corrupt conduct or a concern of a potentially serious and substantial matter is not a Head of Division or Office, that person should ensure that the confidential report is brought promptly to the attention of the Head of Division or Office will, in turn, inform the Deputy Vice-Chancellor (Administration) who also functions as the University's Disclosures Co-ordinator.
24.13.42 The Head of Division or Office should first ensure, however, that the persons making the complaint or providing the information have been informed as to how such matters are handled within the University and that, in the case of a staff member, they have been informed of the provisions of the NSW Protected Disclosures Act.
24.13.43 It should be noted that, notwithstanding the suggested reporting sequence outlined above, a staff member (or external party) may at any time make their complaint direct to the Deputy Vice-Chancellor (Administration) or to the Vice-Chancellor. In their absence, a report of corrupt conduct or a potentially serious and substantial matter can also be registered with the Director, Management Audit.
24.13.44 Once a report has been received, the Deputy Vice-Chancellor (Administration) will make a preliminary assessment as to whether the matters raised potentially involved corrupt conduct or matters of serious and substantial maladministration or waste. The Deputy Vice-Chancellor (Administration) may decide, after that assessment, that the matters raised should more appropriately be dealt with by a relevant unit supervisor or Head of Division or Office as part of their normal supervisory and management improvement responsibilities.
24.13.45 If the matters raised in the report are assessed to be potentially of a serious and substantial nature, the Deputy Vice-Chancellor (Administration) will arrange for the Vice-Chancellor to be promptly informed.
24.13.46 The Deputy Vice-Chancellor (Administration) will determine how the matter is to be further investigated; who else within the University is to be informed; and, if appropriate, what special confidentiality and other staffing arrangements are to be put in place to protect the person making the complaint or providing the information.
24.13.47 Where necessary, the Deputy Vice-Chancellor (Administration) will arrange for external agencies such as the Police, the ICAC, the Ombudsman, and the Auditor-General to be informed.
24.13.48 The Deputy Vice-Chancellor (Administration) will monitor investigation progress and ensure that investigation outcomes are advised to the Vice-Chancellor and to the relevant external regulatory agencies. Where the matter comes under the Protected Disclosures Act arrangements, the Deputy Vice-Chancellor (Administration) will advise the person who provided the initial complaint/report of the action taken by the University in response to that complaint/report.
Staff members (or external parties) who wish further information can approach the Deputy Vice-Chancellor (Administration) (telephone 9850 7441), or the Director, Management Audit (telephone 9850 7478).
Direct enquiries as to how one might report known (or suspected) corrupt conduct can also be made in confidence through the ICAC (telephone 9318 5999) Information in respect of the NSW Protected Disclosures Act is similarly available direct from the NSW Ombudsman's Office (telephone 9286 1004).
Sharon Litchfield, Personnel Office (9768)