1.1 Purpose

These guidelines have been prepared to facilitate the reporting of corruption and other misconduct by public bodies and public officers within the Victorian Public Sector (VPS) under Victoria’s Public Interest Disclosures Scheme.

Reporting such conduct, referred to as making a public interest disclosure, is important in preventing corruption and other misconduct and preserving the integrity and the proper operation of the VPS.

These guidelines have also been developed to help facilitate the making of public interest disclosures to the Victorian Inspectorate (VI), the handling of those disclosures and where appropriate, the notification of those disclosures to the Independent Broadbased Anti-corruption Commission (IBAC) or another appropriate entity as required.

In addition to the above, these guidelines have been developed to help facilitate the making of public interest disclosures about the VI or its officers (to the Integrity and Oversight Committee of Parliament) and to help protect persons from detrimental action in reprisal for a public interest disclosure. These guidelines also constitute the procedures of the VI for the purposes of section 58 of the Public Interest Disclosures Act 2012 (PID Act).

1.2 Our commitment

The VI encourages and supports the reporting and prevention of corruption and other misconduct within the VPS.

We will take all appropriate steps to help facilitate the making, handling, notification and investigation of public interest disclosures and the protection of persons from reprisals for making those disclosures in accordance with our obligations under the PID Act.

We also expect the highest standards of integrity from our own officers and the other integrity, accountability and investigatory bodies and officers that we oversight and will take all appropriate steps to uphold this integrity.

 

 

2.1 About the PID Scheme

The Public Interest Disclosures Scheme (PID Scheme) is a Victorian Public Sector ‘whistleblowing-system’ which operates under the PID Act to facilitate and provide a legal framework for reporting corruption and other misconduct by public bodies and public officers within the VPS.

‘Blowing the whistle’ on public sector corruption and misconduct, now known as making a public interest disclosure, is important in maintaining the integrity of the VPS as it enables corruption and other types of misconduct to be identified, investigated and, where possible, rectified and prevented.

The PID Scheme encourages the making of public interest disclosures, by providing a number of protections to people who make their disclosures in accordance with the PID Act. The PID Scheme also establishes a system for public interest disclosures to be investigated and any rectifying action to be taken.

Under the PID Scheme, every VPS body is required to have personnel and procedures to assist and enable persons to make public interest disclosures. IBAC plays a central role within the PID Scheme as it receives and is notified about the majority of disclosures made. This assists IBAC in its primary role of identifying, investigating, exposing and preventing corruption and other types of wrongdoing within the VPS.

The PID Scheme is also supported by a number of other entities, including the VI, that receive disclosures and, where appropriate, notify those disclosures to IBAC for further review and investigation.

2.2 About the PID Act

The PID Act provides a legal framework for making a public interest disclosure.

The purpose of the PID Act is to promote the integrity and accountability of the Victorian public sector, by:

• encouraging and facilitating the making of disclosures about the wrongdoing of Victorian public bodies, their officers and people who have or who intend to adversely affect the honest or effective performance of a Victorian public body or officer
• providing protection for persons who make disclosures and persons who may suffer detrimental action in reprisal for those disclosures
• ensuring those disclosures are properly assessed and, where necessary, investigated, and
• providing for the confidentiality of the content of those disclosures and the identity of persons who make those disclosures.

2.3 The VI’s role

The VI’s role within the PID Scheme includes:

• acting as the sole body responsible for receiving and investigating public interest disclosures about IBAC, IBAC officers, Public Interest Monitors, the Office of the Special Investigator (OSI) and OSI officers
• receiving public interest disclosures about all other entities that are not required to be made to another entity under the PID Act, for the purposes of notifying those disclosures to IBAC for further review and investigation (where appropriate)
• overseeing the performance by IBAC of its functions under the PID Act, and
• reviewing the public interest disclosure (PID) procedures that IBAC, the Victorian Ombudsman and the Judicial Commission of Victoria are required to establish under the PID Act.

2.4 Reforms to the whistleblowing scheme

On 31 December 2019, the Protected Disclosure Act 2012 (PD Act) was amended to make Victoria’s public sector whistleblowing scheme more accessible and more effective by better aligning it with Australian and international best practice principles, to encourage reporting of public sector corruption and wrongdoing.

Part of these reforms included the PD Act being renamed the Public Interest Disclosures Act 2012 (PID Act).

Other key reforms included:

• adopting the terms “public interest disclosure” and “public interest complaint” in place of “protected disclosure” and “protected disclosure complaint”
• clarifying, simplifying and increasing the pathways for making a public interest disclosure
• expanding and clarifying the types of public sector improper conduct that a person can disclose in a public interest disclosure
• simplifying the requirements for making a public interest disclosure about detrimental action in reprisal for a public interest disclosure
• protecting public interest disclosures made to persons and bodies outside of the integrity system (i.e. external disclosures) in limited circumstances
• simplifying confidentiality obligations that apply to people who make and handle public interest disclosures, including to allow access to support services
• protecting disclosers from legal costs in the event that they are unsuccessful in a claim for compensation under the PD Act.

3.1 What is a public interest disclosure?

In broad terms, a public interest disclosure (PID) is a report, complaint or allegation, about:

• ‘improper conduct’ by a public body, public officer or person
• ‘detrimental action’ taken or proposed to be taken by a public body or public officer, against a person, in reprisal for that person (or another person) having made a public interest disclosure or having cooperated with the investigation of a public interest disclosure.

A PID can be about conduct that may have taken place, that may be occurring now or that is proposed to be taken or engaged in.

3.2 What is ‘improper conduct’?

‘Improper conduct’ is:

• corrupt conduct
• conduct engaged in by a public officer or public body, in their capacity as a public officer or public body, that constitutes:
  • a criminal offence
  • serious professional misconduct
  • dishonest performance of public functions
  • intentional or reckless breach of public trust
  • intentional or reckless misuse of information or material acquired in the course of the performance of the functions of the public officer or public body
  • a substantial mismanagement of public resources
  • a substantial risk to the health or safety of one or more persons
  • a substantial risk to the environment
• conduct of any person that:
  • adversely affects the honest performance by a public officer or public body of their functions as a public officer or public body
  • is intended to adversely affect the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body and results in the person, or an associate of the person, obtaining:
    • a licence, permit, approval, authority or other entitlement under any Actor subordinate instrument
    • an appointment to a statutory office or as a member of the board of any public body under any Act or subordinate instrument
    • a financial benefit or real or personal property
    • any other direct or indirect monetary or proprietary gain that the person or associate would not have otherwise obtained
• conduct of any person that could constitute a conspiracy or attempt to engage in improper conduct.

3.3 What is ‘detrimental action’?

‘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.

Detrimental action includes threats to take such action or inciting or permitting someone else to take detrimental action.

To make a public interest disclosure about detrimental action:

1. the detrimental action must be taken or proposed to be taken by a public body or public officer, and
2. the detrimental action must have been taken or proposed to be taken against another person in reprisal for the making of a public interest disclosure, because or in the belief that:
   • the other person, or anyone else has made, or intends to make a public interest disclosure, or
   • the other person, or anyone else has cooperated or intends to cooperate with an investigation of the public interest disclosure.

3.4 Who can a PID be made about?

A public interest disclosure can be made about:

• ‘public bodies’, including:
  • public sector bodies (including public service bodies, public entities and special bodies)
  • incorporated or unincorporated bodies established under an Act for a public purpose, including universities
  • the Electoral Boundaries Commission
  • a council (established under the Local Government Act 1989)
  • a body performing a public function on behalf of the State or a public body or public officer

• ‘public officers’, including:
  • public servants, including VI and IBAC officers
  • local government Councillors and council employees
  • university employees and teachers
  • Victoria Police personnel
  • Members of Parliament, including Ministers
  • ministerial officers, parliamentary advisers and officers, electorate officers
  • judicial officers, including coroners, members of the Victorian Civil and Administrative Tribunal (VCAT), associate judges, judicial registrars
  • statutory office holders, including the Auditor-General and the Victorian Ombudsman, and the Director of Public Prosecutions
  • the Governor, Lieutenant-Governor or Administrator of the State
• ‘the conduct of any person’ that:
  • adversely affects the honest performance of a public body or public officer, or
  • is intended to adversely affect the effective performance of a public body or public officer and results in that person or an associate of that person obtaining a specified benefit, or
  • the conduct of any person who attempts to engage or conspire in improper conduct.

3.5 Opting-out of making a PID

Under section 19 of the PID Act, you may avoid your public interest disclosure being or continuing to be considered and treated as a PID under the PID Act, by stating in writing that your disclosure is not a public interest disclosure (PID) and providing this statement to the entity that you made your disclosure to, no later than 28 days after making your disclosure.

4.1 Who can you make your PID to?

The PID Act prescribes the bodies to which you are able to make your public interest disclosure (PID).

• IBAC is able to receive all public interest disclosures, except disclosures about:
  • IBAC or an IBAC officer
  • members of Parliament
  • Victorian Inspectorate or a Victorian Inspectorate officer
  • a Public Interest Monitor – the OSI or an OSI officer
• A public service body is able to receive all public interest disclosures made to it by its members, officers or employees, except disclosures about:
  • members of Parliament
• If your disclosure is about IBAC or an IBAC officer, a Public Interest Monitor, the OSI or an OSI officer, you must make your disclosure to the VI.
• If your disclosure is about the VI or a VI officer, you must make your disclosure to the Integrity & Oversight Committee of Parliament or to a Presiding Officer (i.e. the Speaker of the Legislative Assembly or the President of the Legislative Council).
• If your disclosure is about a member of Parliament you must make your disclosure to a Presiding Officer.
• If the subject of your disclosure is not listed in Table A below, you may make your disclosure to:
  • IBAC
  • Victorian Ombudsman
  • Victorian Inspectorate
  • A public service body* (if you are a member, officer or employee of that public service body)
  • A Council (if you are a member, officer or employee of that Council) If your disclosure is made to a person or entity that cannot receive your disclosure, your disclosure may not qualify to receive the protections provided under the PID Act.

Table A - Who can a public interest disclosure be made to?

Table B - Organisations that can receive public interest disclosures

4.2 Who can make a PID?

Any person or group of people can make a PID. They can be an employee of a public body, a contractor or tenderer, a client or a member of the public.

A company or business cannot make a PID, but its officers or employees can.

4.3 How to make a PID

You may make your disclosure to a relevant entity either orally or in writing.

You may also make an anonymous disclosure.

Oral disclosures

Oral disclosures may be made in person, by phone or by leaving a voicemail message.

To reduce the possibility of reprisals being taken against you for making your disclosure, you may wish to make your disclosure in private.

Written disclosures

A written disclosure can be provided to the relevant organisation by:

• delivering it in person to the office of the organisation
• mailing it to the office of the organisation
• emailing it to the e-mail address of the office of the organisation, or to the official email address of a person nominated to receive a disclosure in the organisation’s procedures.
• completing an online form which the relevant organisation provides for making a disclosure to it.

Anonymous disclosures

A person may make an anonymous disclosure by using an anonymous and unverifiable email address, through anonymous phone calls, or in a face-to-face conversation or meeting.

4.4 How to make a PID to the VI

You may make a PID to the VI:

• in writing:
  • by completing our online PID form
  • by completing our PID form and emailing, posting or personally delivering it to our offices
• orally:
  • by phone
  • by voicemail
  • in person at our offices
• anonymously

If you wish to make your disclosure to the VI in person or require assistance in making your PID to the VI, please contact us on 1800 518 197.

4.5 What to include in your PID

To assist the relevant agency to deal with your disclosure, where possible, it is helpful if you include the following information within your disclosure:

• a description of the alleged improper conduct or detrimental action
• details of the person or body you are complaining about and any witnesses to improper conduct or detrimental action that you are making a disclosure about
• information and copies of any documents which support your disclosure
• your contact details (unless you wish to make your disclosure anonymously), and
• any concerns that you have about reprisals for making your disclosure.

4.6 Help with making your PID

If you require assistance to make your PID, please contact the agency to whom you are making your PID.

If you are a public officer, you may also seek assistance from your Public Interest Disclosure Coordinator (PID Coordinator).

Victorian state government departments, administrative offices and local councils have a PID Coordinator who is responsible for receiving and handling reports of improper conduct from employees or members of the public, and ensuring that support and welfare protection is provided to them.

If you have difficulty speaking English, you may also seek help from the Translating and Interpreting Service (TIS) on 131 450.

4.7 External disclosures

In limited circumstances under the PID Act, a PID may also be made to a person or body who is not able to receive disclosures (e.g. a journalist).

Such disclosures are known as ‘external disclosures.

Where a PID was not made anonymously and has been determined to be a public interest complaint (PIC), a discloser may make an external disclosure if:

• the relevant assessing entity does not notify the discloser about any action taken in response to the original disclosure within six months and has not responded to a request for advice within 30 days, or
• the investigation of the original disclosure is not completed within 12 months, and the investigating entity has not responded to a request for advice within 30 days, or
• where the investigation of the original disclosure was not completed within 12 months, the discloser has received an update within 30 days of requesting it, but the discloser has then not received any further update advising that the investigation has been completed within a further six months of that response.

Some exemptions apply, for example, in relation to any information that may prejudice a criminal investigation or proceeding, or other legal proceeding, or information that is likely to lead to the disclosure of an investigative method.

5.1 Protections for making a PID

Under Part 6 of the PID Act, you will receive the following legal protections for making a PID (public interest disclosure):

• protection from detrimental action taken or proposed to be taken against you or another person in reprisal for making a PID, including:
  • protection from being fired, disciplined or bullied for making a public interest disclosure
  • (where possible) the opportunity to request a transfer of employment to avoid potential reprisals
• protection from civil or criminal liability or an action of defamation for making a PID, and
• protection from committing an offence or for breaching any confidentiality obligations you might have with respect to the information you have provided within your PID.

You must make your PID in accordance with the requirements of the PID Act (i.e. to a receiving entity), to be able to receive the above protections.

5.2 Confidentiality protections and requirements

The PID Act imposes a number of confidentiality requirements in relation to the receipt and handling of disclosures in an attempt to minimise the risks of reprisal for making a PID.

These confidentiality requirements, which are found under Part 7 of the PID Act, apply to disclosures that are made directly to IBAC, the VI, or the IOC and those disclosures which are required to be notified to IBAC, the VI, or the IOC for assessment under the PID Act (i.e. disclosures that are assessable as a PID).

Breaching these confidentiality restrictions, without lawful excuse, is an offence. The confidentiality restrictions and their exceptions are set out in sections 52, 53 and 54 of the PID Act.

The confidentiality protections do not apply to an external disclosure. The two main confidentiality restrictions are:

[i] The content of a public interest disclosure must be kept confidential

The PID Act prohibits the disclosure of the content, or information about the content, of any disclosure that is assessable as a PID.

This confidentiality restriction applies to a person or body that receives a PID, or that is provided with information about a PID by an investigating entity who is assessing or investigating the disclosure.

This restriction does not apply to the discloser.

[ii]The identity of the person making a public interest disclosure must be kept confidential

The PID Act prohibits the disclosure of information that would be likely to lead to the identification of a person who has made a disclosure that is assessable as a PID.

This restriction applies to any person or body, other than the discloser.

5.3 Exceptions to the confidentiality requirements

The above confidentiality restrictions do not apply where:

• a person or body discloses the confidential information for the purposes of exercising its functions under the PID Act
• the confidential information is disclosed by an investigating entity for the purpose of the exercise of functions under the Act that authorises that investigating entity to investigate the public interest disclosure
• IBAC, the VI or the IOC determines that the disclosure is not a public interest complaint
• the disclosure of confidential information is made by an investigating entity to Victoria Police where relevant to a Victoria Police investigation of criminal conduct
• the disclosure of confidential information is for the purpose of a proceeding for an offence or a disciplinary process under a relevant Act
• the disclosure of confidential information is necessary for the discloser to obtain legal advice or representation, interpretive services, the advice of a parent or guardian (for disclosers under 18 years), the advice of an independent person (for disclosers who are illiterate or have mental or physical impairments)
• the disclosure of confidential information is for the purpose of assisting the discloser to seek advice or support from a registered health practitioner or trade union or employee assistance program
• the disclosure of the confidential information is to WorkCover for a workers compensation claim or for an application to the Fair Work Commission;
• the content, or information about the content, of a public interest disclosure is disclosed in accordance with a direction or authorisation from the investigating entity that is investigating the public interest disclosure after it has been determined to be a public interest complaint
• the content, or information about the content of a public interest disclosure is disclosed for the purpose of taking lawful action (including a disciplinary process) in relation to the conduct that is subject of the disclosure, and
• where the discloser gives prior written consent to disclose information that would be likely to lead to their identification as the person who made the public interest disclosure.

5.4 Offences under the PID Act

The PID Act contains a number of civil and criminal penalties to further protect the confidentiality of disclosures, protect persons from detrimental action in reprisal for a PID and prevent the making of false disclosures.

Offences under the PID Act include:

Detrimental action

It is an offence for a person to take or threaten action in reprisal when:

• another person has made or intends to make a PID
• the person believes another person has made or intends to make a PID
• another person has cooperated or intends to cooperate with the investigation of a PID
• the person believes another person has cooperated or intends to cooperate with the investigation of a PID.

Criminal penalty: 240 penalty units or 2 years imprisonment or both.

Civil penalty: Order of court for offender to pay appropriate level of damages to compensate for injury, loss or damage.

Disclosure of the content of a PID

It is an offence for a person or body to disclose, without lawful excuse, the content of a disclosure that has been assessed as a PID.

Criminal penalty: 120 penalty units or 12 months imprisonment or both (person); 600 penalty units (body corporate).

Disclosure of the identity of a person making a PID

It is an offence for a person or body to disclose, without lawful excuse, the content of a disclosure that has been assessed as a PID.

Criminal penalty: 120 penalty units or 12 months imprisonment or both (person); 600 penalty units (body corporate).

Making a false disclosure or providing false further information

It is an offence for a person to provide information intending it be acted on as a PID, or further information that relates to a PID, knowing it to be false or misleading.

Criminal penalty: 120 penalty units or 12 months imprisonment or both.

Falsely claiming a disclosure is a PID

It is an offence for a person to claim that a matter is the subject of a PID or the subject of a disclosure determined to be a public interest complaint (PIC), knowing that claim to be false.

Criminal penalty: 120 penalty units or 12 months imprisonment or both.

 

6.1 What happens after we receive your disclosure?

After we receive your disclosure, the VI (Victorian Inspectorate) will take the following steps

1. Acknowledge the receipt of your disclosure
2. Review whether it is the appropriate body to receive your disclosure
   • If the VI is not the appropriate body to receive and deal with your disclosure, where possible, it will advise you of the appropriate body to make your disclosure to or, if appropriate, treat your disclosure as a misdirected disclosure and notify it to IBAC or the IOC
3. If you made a disclosure about IBAC, an IBAC officer or a Public Interest Monitor, the VI will determine whether or not your disclosure is a Public Interest Complaint (PIC)
   • Where the VI determines that your disclosure is a PIC, the VI will investigate your disclosure
   • Where the VI determines that your disclosure is not a PIC, the VI will consider whether it is able to handle your disclosure as a complaint under the Victorian Inspectorate Act 2011 (VI Act)
4. If you made a disclosure about another person, public officer or public body that the VI is able to receive a PID about, the VI will consider whether, under the PID Act, it is required to notify your disclosure to IBAC
   • Where the VI is required to notify your disclosure to IBAC, the VI will notify your disclosure within 28 days from the date you made your disclosure to the VI
   • Where the VI considers that it is not required to notify your disclosure to IBAC, the VI will consider whether it is able to handle your disclosure as a complaint under the VI Act
5. The VI, where possible, will advise you in writing of how your disclosure will be handled.

Table C - How the VI handles your disclosure

6.2 What PIDs the VI can receive

The VI is able to receive PIDs about the following entities:

• IBAC or an IBAC officer
• a Public Interest Monitor
• the OSI or an OSI officer
• a Victorian Ombudsman (VO) officer
• a Victorian Auditor General’s Office (VAGO) officer
• the Chief Examiner or an Examiner appointed under section 21 of the Major Crime (Investigative Powers) Act 2004
• a Judicial Commission of Victoria officer (other than a judicial member of the Board of the Judicial Commission of Victoria)
• a Council or a member of Council staff, and
• any other Victorian public officer or Victorian public body, unless required to be made to another entity under section 14 or 17 of the PID Act.

We cannot receive PIDs about:

• the VI or a VI officer
• members of Parliament
• the (former) Office of the Special Investigations Monitor or the former Special Investigations Monitor
• a court
• an investigating panel or a member of an investigating panel
• a Victorian public officer or Victorian public body that is required to be made to another entity under section 14 or 17 of the PID Act.

If the VI receives a disclosure that it is unable to receive, the VI will advise the discloser how to make their disclosure to the appropriate body.

This may not be possible where the VI receives an anonymous disclosure.

If the VI receives a misdirected disclosure, the VI may notify that disclosure to IBAC or where this disclosure relates to the VI or a VI officer, to the Integrity and Oversight Committee (IOC) of Parliament.

6.3 When the VI will investigate a PID

The VI is required to investigate PIDs about IBAC, an IBAC officer, a Public Interest Monitor, the OSI or an OSI officer, where the VI determines that the PID received is a public interest complaint (PIC).

The VI is only able to make determinations in relation to PIDs about IBAC, IBAC officers, a Public Interest Monitor, the OSI or an OSI officer.

Under section 31 of the PID Act, a disclosure must be determined by the VI to be a PIC, where the VI considers that:

1. the disclosure shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID, or
2.  the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show improper conduct or detrimental action in reprisal for the making of a PID.

In any other case, the VI must determine that the disclosure is not a PIC.

The VI is also required to investigate PICs that IBAC has referred to it.

6.4 When the VI will handle a disclosure as a complaint

Where the VI:

1. determines that a disclosure about IBAC, an IBAC officer, a Public Interest Monitor, the OSI or an OSI officer is not a PIC, or
2. considers that a disclosure that it receives about another entity is not required to be notified to IBAC under section 21 of the PID Act, or
3. is provided with written advice from the discloser that their disclosure is not a PID and that disclosure is provided to the VI within 28 days after the discloser made their disclosure;

the VI will consider whether it is able to handle the disclosure as a complaint under the VI Act. If the VI is able to handle the disclosure as a complaint under the VI Act, it may also consider investigating the complaint.

The main difference between investigating a disclosure as a complaint as compared with investigating it as a PIC, is that the discloser’s identity is no longer required to be kept confidential under the PID Act when investigating the matter.

6.5 When the VI will notify a PID to IBAC

Under section 21 of the PID Act, the VI is required to notify a PID to IBAC for assessment under the PID Act, no later than 28 days after the disclosure was made, when the VI considers that the PID may be a disclosure that:

1. shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID, or
2. the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show improper conduct or detrimental action in reprisal for the making of a PID.

In notifying a PID to IBAC, the VI will notify all information disclosed to the VI including the name and contact details of the discloser where provided.

The VI will not notify PIDs about IBAC, IBAC officers, a Public Interest Monitor, the OSI or an OSI officer as the VI is required to determine whether such disclosures are PICs and then investigate those disclosures that are determined to be a PIC.

6.6 What happens after the VI notifies a PID to IBAC

Once IBAC receives a PID that has been notified by the VI, IBAC is required to determine whether the disclosure is a PIC.

Under section 26 of the PID Act, IBAC must determine a disclosure to be a PIC, where IBAC considers that:

1. the disclosure shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID, or
2. the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID.

In any other case, IBAC must determine that the disclosure is not a PIC.

In making its determination, IBAC may seek additional information from the VI or from the discloser.

If IBAC determines that the disclosure is a PIC, IBAC will, where possible, advise the discloser in writing of this determination and the action it will take. This includes advising the discloser whether IBAC has decided to investigate the PIC, refer the PIC to be investigated by another investigating entity or take no further action.

If IBAC determines that the disclosure is not a PIC, IBAC, where possible, will advise the discloser of its determination and that the disclosure will not be investigated as a PIC, meaning that the discloser’s identity is no longer required to be kept confidential.

IBAC may also, with the consent of the discloser, consider treating the disclosure as a complaint under the IBAC Act.

6.7 Advice that the VI will provide about the handling and investigation of disclosures

The VI will provide written advice to the discloser (as appropriate) about how their disclosure will be handled, including:

• advice confirming that the VI has received their disclosure
• advice about whether the disclosure is required to be notified to IBAC
• advice about whether or not the VI has determined their disclosure to be a PIC
• advice confirming that the VI will investigate the disclosure where it has been determined by the VI to be a PIC
• advice about whether the VI will and is able to handle the disclosure as a complaint under the VI Act, where the disclosure is determined not to be a PIC or considered not to require notification to IBAC
• advice about alternative bodies that the discloser may wish to make their disclosure to, where:

1. the VI is unable to handle the disclosure as a complaint after the disclosure has been determined not to be a PIC or considered not to require notification to IBAC, or
2. where the VI is not the appropriate body to handle the disclosure.

After the VI has investigated a PIC, the VI is required to provide the discloser with information about the results of its investigation. This will include any action taken by the VI and any recommendations made by the VI that action or further action be taken.

The VI will not provide information about the results of its investigation to the discloser, where the VI considers that the provision of this information might result in any of the possible adverse outcomes specified in section 88(3) – (4) of the VI Act.

Examples of the adverse outcomes that would prevent the VI from providing information about the results of its investigation, include where providing such information would prejudice an investigation or put a person’s safety at risk or cause unreasonable damage to a person’s reputation.

6.8 How the VI protects confidentiality

The VI will take all reasonable steps to protect the confidentiality of a disclosure, including the identity of the person who made the disclosure.

These steps include:

• storing electronic and hard copy records relating to disclosures in a secure manner
• having policies and procedures for receiving, assessing, notifying and investigating disclosures, to ensure that the confidentiality of disclosures can be maintained in accordance with confidentiality requirements of the PID Act
• providing regular training to the officers of the VI that receive disclosures, so that they comply with the confidentiality requirements under the PID Act
• providing advice and education to our stakeholders about the confidentiality requirements under the PID Act.

In addition to the above steps, officers of the VI are also bound by confidentiality requirements under the VI Act and take an oath or affirmation under section 30 of the VI Act not to disclose, except as authorised or required by law, any information received in the performance of their duties and functions or the exercise of their powers.

Also, under section 78 of the PID Act, documents in our possession are exempt from freedom of information laws to the extent that they contain information that relates to an assessable disclosure or a PID, or is likely to lead to the identification of a person who has made a PID.

6.9 Where the VI may take urgent action in relation to a disclosure

Where the VI receives a disclosure about serious criminal conduct or conduct that may pose an immediate threat to the health or safety of one or more individuals or the preservation of property, it may be necessary for the VI to report the disclosure to Victoria Police.

The VI may also take management action at any time in relation to conduct disclosed about a VI officer to prevent the disclosed conduct from occurring in future.

6.10 Human Rights

The VI actively considers and acts compatibly with the Charter of Human Rights and Responsibilities Act 2006 in the receipt, handling, notification and investigation of disclosures, including considering the right of the discloser not to have their privacy unlawfully or arbitrarily interfered with or their reputation unlawfully attacked.

7.1 How to make a PID about the VI or a VI officer

PIDs about the VI or VI officers must be made to the IOC of Parliament or to a Presiding Officer (i.e. the Speaker of the Legislative Assembly or the President of the Legislative Council).

The contact details for the above entities are listed below:

IOC

Parliament of Victoria Integrity & Oversight Committee

Parliament House, Spring Street, Melbourne, Victoria 3002 Australia

Phone: +61 3 8682 2815

E-mail: ioc@parliament.vic.gov.au

 

President of the Legislative Council

President of the Legislative Council

President’s Office

Parliament House, Spring Street, Melbourne, Victoria 3002 Australia

Phone: +61 3 9651 8675

E-mail: president@parliament.vic.gov.au

 

Speaker of the Legislative Assembly

Speaker of the Legislative Assembly

Speaker’s Office

Parliament House, Spring Street, Melbourne, Victoria 3002 Australia

Phone: +61 3 9651 8580 or +61 3 9651 8575

E-mail: speaker@parliament.vic.gov.au

7.2 How PIDs about the VI or a VI officer will be handled

The IOC is responsible for assessing, handling and, where appropriate, managing the investigation of disclosures made about the VI or a VI officer.

As part of this responsibility, the IOC may receive disclosures about the VI or a VI officer, either directly or by notification, as required under section 21 of the PID Act.

Where the IOC receives a disclosure about the VI or a VI officer, the IOC is required to determine whether the disclosure is a PIC.

Under section 31A of the PID Act, the IOC must determine a disclosure about the VI or a VI officer to be a public interest complaint (PIC), where the IOC considers that:

1. the disclosure shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID, or
2. the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID.

In any other case, the IOC must determine that the disclosure is not a PIC.

If the IOC determines that the disclosure is a PIC, the IOC, as appropriate, will advise the discloser in writing of this determination and the action it will take, including that it is required to engage an independent person to investigate the disclosure.

If the IOC determines that the disclosure is not a PIC, the IOC, as appropriate, will advise the discloser in writing about its determination including advice that the disclosure will not be investigated as a PIC, meaning that the discloser’s identity is no longer required to be kept confidential.

The IOC may also advise the discloser that the matter which is the subject of the disclosure may be dealt with by another entity other than as a PIC and the discloser should make a complaint directly to that entity.

7.3 How the VI deals with a misdirected disclosure about the VI or a VI officer

Under the PID Act, the VI is unable to receive disclosures about itself or its officers, other than for those disclosures, known as misdirected disclosures, where the discloser honestly believed that the VI was the appropriate body to which to make their disclosure.

If a person tries to make an oral disclosure about the VI or a VI officer, our officers will advise the discloser to make their disclosure directly to the IOC.

If the VI receives a written disclosure about the VI or a VI officer, the VI will consider whether the disclosure is a misdirected disclosure, and if it is, the VI will consider whether it is required to notify the disclosure to the IOC under section 21 of the PID Act.

The VI’s PID Coordinator will have responsibility for handling misdirected disclosures about the VI or a VI officer.

Notification of a misdirected disclosure to the IOC

The VI will notify a misdirected disclosure about the VI or a VI officer to the IOC for assessment under the PID Act, when the VI considers that the disclosure may be a disclosure that:

1. shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID, or
2. the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show improper conduct, or detrimental action in reprisal for the making of a PID.

The VI is required to make this notification no later than 28 days after the disclosure was made.

Where the VI considers that it is not required to notify a disclosure about the VI or VI officer, the VI will consider dealing with the disclosure as a complaint under the Public Administration Act 2004.

Advice about the handling of misdirected disclosures about the VI or a VI officer

The VI will provide written advice to the discloser (as appropriate) about how their misdirected disclosure will be handled, including:

• advice confirming that the VI has received their disclosure
• advice about whether the disclosure is required to be notified to the IOC, and
• advice about dealing with the disclosure as a complaint.

7.4 How the VI will protect disclosers from detrimental action

The VI will not tolerate detrimental action in reprisal for PIDs made about the VI or a VI officer.

Where the VI receives a misdirected disclosure about the VI or a VI officer, or receives information relating to a PID about the VI or a VI officer, the VI will try to minimise the risks of VI officers taking detrimental action in reprisal for PIDs, by:

• securely storing information in relation to those PIDs
• keeping information about disclosures confidential, in accordance with relevant law and our internal policies
• identifying, assessing, controlling and monitoring risks of reprisals faced by disclosers and witnesses, and
• ensuring VI officers are aware of their obligations under the PID Act and the offences for taking detrimental action in reprisal for a PID.

A PID Coordinator will also act on any reports of detrimental action taken or proposed to be taken by the VI or a VI officer, including:

• recording the details of the alleged detrimental action
• informing the victim of the alleged detrimental action of their rights under the PID Act, including their right to make a PID about the detrimental action to the IOC or to a Presiding Officer and their right to request a transfer of employment if they believe on reasonable grounds that detrimental action has, is or will be taken against them, and
• where the alleged detrimental action is of a serious nature and is likely to constitute a criminal offence, advising the discloser to consider reporting the matter to Victoria Police.

7.5 How the VI supports the welfare of disclosers and others

The VI’s PID Coordinators are available to provide basic welfare support to VI officers that make a disclosure and to other VI officers who may cooperate with the investigation of a disclosure.

The support that the PID Coordinators are able to provide is subject to confidentiality requirements imposed by the PID Act.

This support may include:

• assessing, monitoring and managing the risks of detrimental action being taken against the discloser
• providing advice to the discloser about the operation of the PID Act and the handling of the disclosure
• assisting the discloser to seek support from various support services, including from a registered medical practitioner, an employee assistance program, a trade union or a Victorian WorkCover Authority
• assisting the discloser in seeking a transfer of employment or other work arrangements, where the discloser believes detrimental action has or will be taken against them, and
• as appropriate, appointing a welfare manager for the discloser and others involved in the investigation of a disclosure, where there is a real risk of detrimental action being taken against the person.

7.6 How the VI supports the subject of the disclosure

The VI recognises that VI officers against whom a disclosure is made must also be supported during the handling and investigation of disclosures, and will provide welfare support to those officers as the circumstances require and in accordance with the confidentiality requirements imposed by the PID Act.

Where a disclosure is dismissed or not substantiated, the VI will ensure that there are no adverse consequences for the subject of the disclosure. We will also take all reasonable steps to ensure that the allegations, the fact of the investigation, the outcome, and the identity of the subject remain confidential.