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DVA PEOPLE POLICY

DVA Public Interest Disclosure Procedures

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CONTENTS

INTRODUCTION

COVERAGE

LEGAL AND OTHER AUTHORITIES

DEFINITIONS

RESPONSIBILITIES

Principal Officer

Public official

Authorised officer

PROCEDURES

Making a Disclosure

Allocation

Investigations

Disclosure of information to a member of an Australian police force

Protections

Reporting

INTRODUCTION

The Public Interest Disclosure Act 2013 (Cth) (PID Act) has been introduced to further promote integrity and accountability in the public sector.

The PID Act establishes a framework to:

  • encourage and facilitate the disclosure of information by public officials about suspected wrongdoing in the public sector;
  • ensure that public officials who make public interest disclosures are supported and protected from adverse consequences; and
  • ensure that disclosures by public officials are properly investigated and dealt with.

Department of Veterans’ Affairs (DVA) workers are encouraged to report any matters concerning suspected misconduct or breach of law.

COVERAGE

The PID Act extends beyond the Australian Public Service (APS) to a wide range of Commonwealth entities including Commonwealth companies and authorities, and contracted service providers.

Accordingly, this policy applies to ongoing and non-ongoing employees, contractors and employees of contracted service providers of DVA.

This policy sets out for DVA:

  • the framework for making and investigating public interest disclosures;
  • the protections available to those who make public interest disclosures and to witnesses and the obligations of others in relation to those protections;
  • the responsibilities of the Secretary (as Principal Officer), authorised officers, investigators, supervisors and public officials (including all DVA workers) under the PID Act.

The PID Act protects disclosures made after 15 January 2014. It does not protect disclosures made prior to this date.

However, a disclosure can relate to conduct which occurred prior to 15 January 2014, or conduct by a public official or contracted service provider which occurred prior to those persons no longer being a public official or contracted service provider.

LEGAL AND OTHER AUTHORITIES

  • Public Interest Disclosure Act 2013
  • Public Service Act 1999
  • Fair Work Act 2009
  • Freedom of Information Act 1982
  • Work Health & Safety Act 2011
  • Crimes Act 1914
  • Public Service Regulations 1999
  • DVA People Policy – Conduct
  • DVA People Policy – Procedures for dealing with Suspected Breaches of the Code of Conduct

DEFINITIONS

For the purpose of this policy, the following definitions apply:

  • Public official - All Australian Government public servants, members of the Defence Force, contractors to agencies, and staff of Commonwealth contracted service providers.

This policy will refer to public officials rather than employees when referring to persons employed by or contracted to DVA in order to reflect that this policy applies to all these persons.

  • Authorised officer - An authorised officer is:
  • the Principal Officer i.e.: the Secretary
  • a person who is appointed in writing by the Secretary

DVA’s authorised officers are:

  • First Assistant Secretary - Corporate
  • Assistant Secretary – People Services
  • Principal Legal Advisor
  • Deputy Commissioner - WA
  • Deputy Commissioner – QLD
  • Principal Officer - The Secretary is the DVA Principal Officer and has overall responsibility for ensuring compliance with the requirements the PID Act.
  • Discloser - Where this policy refers to a public official making or having made a disclosure, that public official will be referred to, for brevity, as the discloser.
  • Disclosure - In this policy the word “disclosure” is used as shorthand for a public interest disclosure for the purposes of the PID Act. A disclosure is the reporting of “disclosable conduct” by a public official.
  • Disclosable conduct - includes conduct which:
  • breaks a law of the Commonwealth, State or Territory;
  • is fraudulent, corrupt or criminal behaviour;
  • wastes, misuses or mismanages DVA resources;
  • poses an unreasonable danger or risk of danger to health or safety or to the environment;
  • involves discrimination, harassment or victimisation (including bullying) of workers or agency clients;
  • involves undeclared conflicts of interest;
  • involves the use of, or disclosure of, information obtained in the course of a worker’s employment for his/her own advantage; and
  • other actions that may amount to a breach of the APS Code of Conduct.

Conduct is not disclosable if it relates only to:

  • a Commonwealth policy or proposed policy, or any expenditure relating to such policy;
  • an action or proposed action by a Minister, Speaker of the House of Representatives or President of the Senate;
  • judicial officers, tribunal members, and members of their staff; or
  • proper performance of functions or exercise of powers by intelligence agencies.

RESPONSIBILITIES

Principal Officer

The Principal Officer must:

  • establish procedures for the agency to facilitate and deal with public interest disclosures. In DVA this includes these Procedures as well as the authorised officers and investigators procedures;
  • ensure that workers are aware of the Procedures and the protections available. In DVA this includes these Procedures;
  • appoint authorised officers to receive disclosures;
  • ensure disclosures are properly investigated. For DVA these procedures and the investigators procedures set out the framework for the investigation of a disclosure.
  • protect disclosers from reprisals or threats of reprisals if they make a disclosure. These Procedures set out the protections available to disclosers;
  • ensure that appropriate action is taken in response to an investigation report;
  • provide information to the Ombudsman or the Inspector General of Intelligence and Security (IGIS). In DVA the Director Security & Personnel is responsible for reporting to the Ombudsman or IGIS as required.

Public official

A public official must:

  • know and understand that the PID Act exists and that ongoing and non-ongoing employees and contractors and employees of contracted service providers are covered by the Act as “public officials”;
  • know and understand the protections afforded to someone who makes a disclosure. These are set out under the heading “Protections” below;
  • know and understand that it is a criminal offence to take or threaten to take a reprisal against someone because they make or intend to make a disclosure. This could be, for example, discriminatory treatment, termination of employment or injury. It is also an offence to provide identifying information about a person who makes a disclosure without their consent unless authorised by the PID Act;
  • assist in any investigation of a disclosure, whether the disclosure was made by that public official or another.

Authorised officer

An authorised officer must:

  • allocate the handling of the disclosure as appropriate within 14 days of receiving the disclosure. A disclosure will be allocated unless the authorised officer determines there is no reasonable basis on which the disclosure could be considered to be an internal disclosure;
  • inform the Secretary as well as the Ombudsman (or IGIS) of the allocation;
  • inform the discloser of the allocation or reasons for non-allocation and any subsequent allocations;
  • advise the discloser whether there are any relevant designated publication restrictions which are outlined under Definitions in the PID Act.

PROCEDURES

Making a Disclosure

DVA workers can make a disclosure in the following way:

  • verbally;
  • in writing;
  • anonymously; or
  • without the discloser asserting that it is a public interest disclosure.

DVA workers can make disclosures to:

  • the Secretary;
  • an authorised officer;
  • their supervisor;
  • the Ombudsman if it is reasonably believed it is appropriate or Inspector-General of Intelligence and Security (IGIS) if an intelligence matter;
  • where a disclosure has been made but has not been adequately dealt with, the disclosure may be made to any person (internal or external to DVA) other than a foreign public official, so long as the disclosure is not contrary to the public interest;
  • in the case of substantial and imminent danger to any person or the environment, an emergency disclosure to any person other than a foreign public official;
  • for receipt of legal advice in relation to a disclosure, a legal practitioner disclosure to an Australian legal practitioner with appropriate security clearance.

DVA workers are requested to make disclosures to authorised officers unless it is not reasonably practicable to do so, in which case the disclosure may be made to the workers supervisor or the Secretary.

Where a disclosure is made to the Secretary the matter will normally be referred to an other authorised officers as soon as reasonably practicable. The Secretary may deal with a matter directly in some circumstances.

Where a disclosure is made to a public official’s supervisor (and the supervisor is not an authorised officer), the supervisor must refer the matter to one of the authorised officers as soon as reasonably practicable.

For the purposes of this Procedure a supervisor includes:

  • any person to whom the worker reports either for operational or administrative matters;
  • any person senior in the management chain to those persons to whom the worker reports.

If a supervisor is unclear whether a matter constitutes disclosable conduct the matter should be referred to an authorised office for advice/action.

The identity of the discloser must be kept confidential except for reasons:

  • required by law;
  • if consented to by the discloser; or
  • if the identifying information has previously been lawfully published.

An important matter for a worker to consider prior to making a disclosure is whether they will consent to their name and contact details being disclosed, in particular to the Secretary and an investigator for the purposes of investigating the disclosure.

Allocation

Following the making of a disclosure, unless the authorised officer is satisfied on reasonable grounds that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure, the authorised officer will allocate the disclosure to the appropriate agency(s) within 14 days of receiving the disclosure. The matters to be considered by the authorised officer in this respect are set out in the authorised officer procedure.

The authorised officer will inform the discloser of an allocation or non-allocation decision.

Investigations

Disclosures allocated by an authorised officer to DVA will be investigated (except in the limited circumstances set out in the investigators procedures).

Disclosures which are frivolous or vexatious will not be investigated. A disclosure is frivolous or vexatious if:

  • an error is made in good faith without any resulting disadvantage to anyone;
  • the allegation is so obviously untenable or manifestly groundless that it cannot possibly be made out.

An investigator should determine if a disclosure is frivolous or vexatious or made with the intention of annoying or embarrassing someone or was made for another purpose. The investigator will inform the discloser as soon as reasonably practicable whether the disclosure will be investigated.

Investigations will be conducted in accordance with the standards developed for the purposes of the PID Act by the Ombudsman (the PID Standard).

Where the disclosure concerns an alleged fraud against the Commonwealth, the Commonwealth Fraud Control Guidelines (the Guidelines) will also apply to the investigation of a disclosure. In relation to disclosures relating to conduct that may constitute fraud, the investigator will conduct a preliminary investigation, and if it is determined that the alleged conduct may have occurred and that that conduct may constitute fraud, the investigator will refer the matter to the Director Security.

Where the disclosure concerns an alleged breach of the APS Code of Conduct, the investigator must comply with DVA Procedures for dealing with suspected breaches of the Code of Conduct and comply with procedures established under subsection 15(3) of the Public Service Act 1999 (Cth). In relation to disclosures that relate to conduct that may breach the APS Code of Conduct, the investigator will conduct a preliminary investigation, and if it is determined that the alleged conduct may have occurred and that that conduct may breach the APS Code of Conduct, the investigator will write a report in relation to the preliminary investigation and refer the matter to the Assistant Secretary, People Services Branch to be dealt with as an investigation in accordance with DVA’s policy in relation to breaches of the APS Code of Conduct.

In each case the final report will be provided to the Ombudsman.

An investigation will be undertaken as quickly as the circumstances and proper consideration of the matter allow. An investigation must be completed (i.e. report finalised) within 90 days of the disclosure to the authorised officer.

An investigator will inform the discloser immediately upon completing the investigation, unless it is not reasonably practicable to do so.

All public officials have an obligation to assist with an investigation of a disclosure.

No person will be given information about matters under investigation unless that provision is necessary for the conduct of the investigation.

Disclosure of information to a member of an Australian police force

If, in the course of an investigation, the investigator suspects on reasonable grounds that some of the information disclosed or gathered in the course of the investigation is evidence of the commission of an offence against a law of the Commonwealth, State or Territory, the investigator may disclose that information to a member of an Australian police force responsible for investigating such offences.

Protections

The PID Act provides for:

  • protection of the discloser’s identity;
  • immunity from civil, criminal or administrative liability;
  • protection from reprisal.

Even if the discloser’s report of wrongdoing turns out to be incorrect or unable to be substantiated, there is still protection under the PID Act.

A person who makes a public interest disclosure is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure. This means, for example, that person would not be committing an offence against the secrecy provisions of the Crimes Act 1914 (Cth) for making a disclosure in accordance with the PID Act. The discloser also has absolute privilege in proceedings for defamation in respect of the public interest disclosure.

No contractual or other remedy may be enforced, and no contractual or other right may be exercised, against a person on the basis of the public interest disclosure. A contract to which the discloser is a party cannot be terminated because of the public interest disclosure.

However, these immunities do not apply if the discloser:

  • knowingly makes a statement that is false or misleading;
  • makes a disclosure knowing that it contravenes a designated publication restriction and without a reasonable excuse for doing so.

It is important to note that making a disclosure about matters that include a discloser’s own wrongdoing does not protect the discloser from liability for the discloser’s wrongdoing.

A person who makes a public interest disclosure is protected from reprisal in the following ways:

  • it is a criminal offence to cause detriment to a person because it is suspected or believed that they have made or will make a public interest disclosure;
  • a discloser has the right to apply for an injunction to prevent a reprisal;
  • a discloser has the right to apply for compensation for loss, damage or injury suffered from a reprisal.

It is an offence for a person to take reprisal, or threaten reprisal, against a person making or proposing to make a disclosure, with a penalty of imprisonment for 2 years or 120 penalty units or both.

Reprisal occurs if someone causes, by an act or omission, any detriment to another person because they believe or suspect that person, or anyone else, may have made or intends to make a public interest disclosure.

Detriment includes any disadvantage to a person including (but not limited to):

  • dismissal;
  • injury in employment;
  • alteration of position;
  • discrimination between that public official and other employees.

The detriment may be an action (or threat of action) which results in:

  • a physical or psychological injury, including a stress-related injury;
  • intimidation, harassment or victimisation;
  • loss or damage to property;
  • disadvantage to a person’s career.

If suffering a reprisal, the disclosing public official can apply to the Federal Court for a remedy, including compensation, injunction, apology or any other order (including reinstatement) the court thinks appropriate.

A public official may obtain remedies under the Fair Work Act 2009 (Cth), but not under both the Fair Work Act and the PID Act.

As noted above, it is an offence to disclose or use, other than within the legislated exceptions, identifying information about a discloser, with a penalty of 6 months imprisonment or 30 penalty units or both.

Reporting

Reports of investigations into public interest disclosures as well as statistics about DVA’s allocations and investigations of public interest disclosures will be provided to the Ombudsman in accordance with the PID Act.

EVALUATION / REVIEW

This policy will be reviewed in 2016.

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