Policy Number: 1.60.3
Contact Officer: Freedom of Information Officer
Date Approved by Senate: 24/07/2008
Date last Amended: 11/10/2005
Date for Next Review: 24/07/2011

Overview

1. Object of the Whistleblowers Protection Act 1994

1.1 The Whistleblowers Protection Act 1994 (Queensland) provides a scheme to protect employees of the University making "public interest disclosures" about unlawful, negligent or improper conduct in the University as a public sector organisation or about danger to public health or safety or the environment.

1.2 As a public sector entity established by an Act of the Queensland Parliament, the University of Queensland is subject to the Whistleblowers Protection Act and all University employees are public officers under the legislation. The University, therefore, has obligations related to the receipt of public interest disclosures, and must protect persons making disclosures from reprisals.

Description

2. What disclosures are protected by the legislation?

2.1 The Whistleblowers Protection Act 1994 provides a scheme to protect "public interest disclosures". Broadly speaking, public interest disclosures may be made by employees of the University about:

official misconduct (as defined in the Crime and Misconduct Act 2001);
maladministration (that is, where administrative action is taken which is unlawful, oppressive, improper, improperly discriminatory, etc, and which adversely and substantially affects a person's interests);
negligent or improper management of resources resulting in a substantial waste of public funds (this extends to the conduct of independent contractors supplying goods or services to the University);
substantial and specific dangers to public health or safety or to the environment.

2.2 Under the legislative scheme, public officers/employees who make these disclosures are afforded certain protections against reprisal. The University would also, in the spirit of the legislation, attempt to protect from reprisal other members of the University community, such as students, who make disclosures. Reprisal against them, though not covered by the Whistleblowers Protection Act, is likely to amount to a breach of the University's Code of Conduct.

2.3 Any member of the public is entitled to protection for disclosure of reprisal action taken against a person who has made a public interest disclosure. The statutory scheme also protects any person (including members of the public) making a disclosure concerning danger to a person with a disability or disclosing certain offences against environmental legislation.

3. Making a disclosure

3.1 Where a person has an honest and reasonable belief that an officer or employee of the University may have engaged in, is engaging in or will engage in the type of conduct outlined above, the Whistleblowers Protection Act provides that information concerning that conduct should be disclosed to the University (the University is, for the purposes of that disclosure, the "appropriate entity" as that term is defined in the legislation). Protected public interest disclosures may also be made to an external public sector agency having investigative powers in relation to particular matters (an example is the Crime and Misconduct Commission which has investigative powers in relation to official misconduct) or to a member of the Legislative Assembly who may refer it to a relevant public sector agency.

3.2 The Act does not provide protection against reprisals where a public interest disclosure is made in some other way. For instance, disclosures made through the media, or to a political party, or industrial organisation are not public interest disclosures and do not attract the protection. Limiting disclosure to the specified "appropriate entities" ensures that adequate investigation may be undertaken and the reputation of persons against whom allegations are made is not damaged by inappropriate publication.

3.3 The University has established the following procedure for making public interest disclosures. To ensure that public interest disclosures are recognised as such and appropriately investigated, it is preferable that the disclosure be made in writing to the University Secretary and Registrar. If the disclosure concerns the Secretary and Registrar, it should be made in writing to the Vice-Chancellor.

3.4 However, the Act provides that a public interest disclosure may always be made to:

the Vice-Chancellor
a member of the University Senate
a staff member's supervisor or section head
the Director, Assurance and Risk Management Services
the Deputy Vice-Chancellor (Research)(in the case of a disclosure concerning serious improprieties in the conduct of research)
Crime and Misconduct Commission (in the case of a disclosure concerning official misconduct or alleged official misconduct)
Member of the Legislative Assembly (who may refer it to a relevant public sector entity).

3.5 Disclosures made to University officers, unless made directly to the Secretary and Registrar, must always be referred there as a matter of urgency. If a disclosure is made orally, a detailed note recording the precise matters raised should be made and referred to the Secretary and Registrar.

3.6 Because a public interest disclosure may always be made to a staff member's supervisor, it is important that all staff having supervisory responsibilities are aware of the existence of this legislation.

3.7 Where a person making a disclosure ("the discloser") has an honest and reasonable belief about the inappropriate conduct or activity disclosed, that person will be indemnified from any civil or criminal liability or liability under any administrative process. It is, on the other hand, a criminal offence under the Act to make a disclosure which is intentionally false or misleading. A disclosure which is not made in good faith may also attract civil liability for defamation.

4. Action/Investigation where public interest disclosure is made

4.1 The assessment of a public interest disclosure and the determination of appropriate action on a case by case basis (including an investigation plan where investigation is necessary) rests with the Secretary and Registrar in consultation with appropriate University officers such as the Director, Assurance and Risk Management Services and General Counsel or in the case of serious research misconduct, with the Deputy Vice-Chancellor (Research).

4.2 A University officer will be chosen to conduct the investigation, depending on the nature of the disclosure made. For instance, allegations of financial impropriety will be investigated by the Director, Assurance and Risk Management Services, and serious research misconduct will be investigated by the Deputy Vice-Chancellor (Research).

4.3 The assessment of a disclosure will first consider whether the matters raised fall within the terms of the legislation: matters raised must be substantial in nature and the disclosure must have been made in accordance with the terms of the legislation or this policy. The assessment should then consider whether action needs to be taken forthwith to halt the conduct or remedy the danger to which the public interest disclosure relates and any action needed to fulfil any other obligations imposed on the University by, for instance, the Crime and Misconduct Act.

4.4 Consideration should also be given to any action needed to ensure that reprisals do not occur (this will include an assessment of the involvement of the discloser in any other internal procedures). An investigation plan should also consider appropriate action if the matters raised by the disclosure are found to be substantially verified.

5. Reprisals

5.1 What is a reprisal?

5.1.1 Reprisal can take many forms: the personal safety of the discloser may be prejudiced; the personal property of that person may be damaged; disclosers may be faced with intimidation or harassment in the workplace and may be discriminated against or disadvantaged in their career or profession (for example, if disciplinary action is taken, a person is transferred or duties downgraded). Sometimes there may be other reasons for action that affects a person's interest; however, where the making of the public interest disclosure constitutes a substantial ground for taking action which might constitute a reprisal, the action taken will be unlawful under the Act.

5.1.2 Reprisals extend to threats made to a discloser that any of these consequences may occur. Additionally, inducing another person to take reprisal action itself constitutes a reprisal.

5.2 Protection from reprisals

5.2.1 The legislation is designed to protect the discloser from these consequences: taking a reprisal against such a person is an indictable offence, and a person who suffers a reprisal may also take civil action (including for monetary compensation) against an individual and, in some cases, against the University. A person against whom a reprisal is made or proposed may also be entitled to seek an injunction to halt reprisal action. A staff member who takes a reprisal against a discloser may be guilty of misconduct and may be disciplined and in serious cases dismissed.

5.2.2 Provided that it is made in good faith, and with an honest belief in the facts related to the misconduct or impropriety, a public interest disclosure will still be entitled to protection even if, upon investigation, it is found to be without substance. However, making a public interest disclosure does not reduce a person's liability for their own misconduct.

5.3 Strategies for protection:

5.3.1 When a public interest disclosure is made, any action arising out of the disclosure should take account of whether any other administrative action (such as formal disciplinary proceedings or action associated with diminished work performance) which might be construed as detriment to the disclosure is being or has been conducted. If so, the latter may need to be halted or altered.

5.3.2 In the course of an investigation, various staff members or other persons may be contacted on a strictly confidential basis to provide information, comment or other assistance. To the extent practicable, the identity of the discloser must not be revealed (where disclosure of the identity is contemplated or necessary for any investigation of the allegations raised, that possibility should first be discussed with the discloser). Furthermore, the officer responsible for investigation of the disclosure will advise those contacted of the provisions of the Act and the legal consequences which may attach to the taking of reprisals. They must be told that the Act imposes personal liability on a person taking reprisal action, as well as attaching corporate liability to the University. Individuals will be advised that the taking of a reprisal in contravention of this Act is regarded by the University as misconduct and may warrant dismissal in serious cases.

5.3.3 In a given case, it may be necessary for the supervisor or section head of the unit in which the discloser is employed to be told of the disclosure and charged with a responsibility to monitor workplace conduct and to report to the officer investigating the complaint any harassment, ostracisation or other workplace behaviour which might be construed as a reprisal. Where that occurs, the officer investigating the complaint should immediately inform the Secretary and Registrar who will determine appropriate action to be taken.

5.3.4 Disclosers should be advised to maintain confidentiality, so that the matters raised may be properly investigated and their own interests protected.

6. Records of public interest disclosures

6.1 The Act requires the University to keep an adequate record of public interest disclosures, including details of the discloser, the nature of the information disclosed, and action taken by the University, even where the disclosure is investigated and found to be incorrect. This is done for two reasons: firstly, to fulfil reporting requirements to Parliament, and additionally, so that disclosers are identified and can be protected from reprisal.

6.2 A report prepared by the investigating officer on the outcome of an investigation and the management of a public interest disclosure will be made to the Vice-Chancellor, though the Secretary and Registrar.

6.3 All records of public interest disclosures and their investigation will be kept in the official, central records system and will be kept strictly confidential. Information will not be disclosed except for the purposes of investigation and to remedy the matters disclosed, to afford procedural fairness to a person whose rights may be detrimentally affected, in the discharge of other functions of the Act or for the purposes of court or other legal proceedings. Failure to maintain confidentiality can constitute a criminal offence.

6.4 On request, the University will provide information to a discloser on any investigation or action taken, except where to do so would jeopardise a person's safety or an investigation or if it is impractical to do so.

6.5 Responsibility for creating records and for fulfilling the University's reporting obligations rests with the Secretary and Registrar who will approve the information to be included in the University's Annual Report (pursuant to section 30(2)).

7. Further information

7.1 For further advice about this policy, contact the Right to Information and Privacy Coordinator.