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Procedures for making and dealing with whistleblower reports

PRO-016, Version 2.0, 1 July 2013

pdf Procedures for making and dealing with whistleblower reports (110kb)
Version 2.0, 1 July 2013

1. Introduction

1.1 Whistleblowing is reporting by staff of information which alleges a breach of the APS Code of Conduct to a person authorised to receive such a report. Whistleblower reports generally relate to disclosures about illegal, immoral or illegitimate practices under the control of the employer, or about suspected or alleged wrongdoing that affects broad organisational or public interests, as distinct from matters involving a personal interest. Possible issues dealt with include fraud or other behaviour that could constitute a criminal offence, substantial waste, misuse or mismanagement of an agency’s resources, practices leading to danger in health and safety and bullying and harassment of colleagues, especially threats, intimidation and victimisation (including victimisation of a person for reporting such behaviour).

1.2 Section 16(1) of the Public Service Act 1999 (the Public Service Act) provides protection for APS employees who make whistleblower reports of suspected breaches of the APS Code of Conduct to persons authorised to receive such reports. The protections are detailed below in Section 4 of this circular.

1.3 Section 16(2) of the Public Service Act requires the Director of the National Museum to establish procedures for:

  • an APS employee to make a whistleblower report of a breach (or alleged breach) of the Code of Conduct to the Director or an authorised person; and
  • dealing with such whistleblower reports.

1.4 This document sets out the procedures established under section 16(2) of the Public Service Act.

2. Commencement date

2.1 These procedures apply from 1 July 2013.

3. Whistleblower reports and Code of Conduct Procedures

3.1 The Procedures are separate to the procedures established by the Director for determining breaches of the APS Code of Conduct under section 15(3) of the Public Service Act (the Code of Conduct Procedures). The Code of Conduct Procedures are set out in the Museum’s Code of Conduct Guidelines.

3.2 The primary function of these procedures is to establish clear procedures:

  • for APS employees to make a whistleblower report and receive advice of the protections under section 16(1) of the Public Service Act; and
  • for determining whether there is sufficient evidence to justify a separate investigation under the Code of Conduct Procedures.

3.3 Museum employees are reminded of the requirement that they act in accordance with the APS Code of Conduct and the APS Values and Employment Principles at all times, including when making whistleblower reports. APS employees are advised that making a whistleblower report which is not genuine or is made other than in good faith may constitute a breach of the APS Code of Conduct by the employee making the report. Any such conduct may be investigated under the Code of Conduct Procedures.

4. Procedures for making a whistleblower report

4.1 Whistleblower reports must be made in accordance with the following procedures.

Persons within the Museum authorised to receive whistleblower reports

4.2 An APS employee may make a whistleblower report to the Director or to a person authorised by the Director for the purposes of section 16(2) of the Public Service Act to receive whistleblower reports (an authorised person).

4.3 The persons within the Museum authorised by the Director to receive whistleblower reports are listed in the Human Resources delegations instrument. Those persons include Assistant Directors, the Chief Operating Officer, the Agency Security Advisor and Legal Managers.

4.4 When a whistleblower report is made to the Director or an authorised person, the Director or authorised person will accept the whistleblower report and give information to the whistleblower about the protections available under subsection 16(1) of the Public Service Act.

Making whistleblower reports to the Australian Public Service Commissioner or Merit Protection Commissioner

4.5 A Museum employee may also make a whistleblower report to the Australian Public Service Commissioner or Merit Protection Commissioner. However, the Australian Public Service Commissioner or the Merit Protection Commissioner (or a person authorised by them) is only required to accept a whistleblower report where:

  • they consider it would be inappropriate for the whistleblower to make the whistleblower report to the Director (for example, where the whistleblower report relates to the Director); or
  • where the employee has previously made the whistleblower report to the Director (or a person authorised by the Director) and is not satisfied with the outcome (see paragraph [8.4] below).

Whistleblower reports involving other APS agencies

4.6 Museum employees may make whistleblower reports to the agency head of another APS agency, or a person authorised by that agency head. This may be appropriate, for example, where the report relates to the conduct of an APS employee from another APS agency.

4.7 Similarly, employees of other APS agencies may make whistleblower reports to the Director (or a person authorised by the Director) about the conduct of employees in the Museum. Those whistleblower reports will be dealt with in accordance with this Procedure.

Initial contact and advice

4.8 Before lodging a formal whistleblower report, an employee may wish to speak informally with someone about whether it is appropriate to make the report under the whistleblower provisions, or whether there is some other appropriate mechanism. It is recommended that employees seek advice from the Human Resources team on 6208 5156 and/or the Ethics Advisory Service at the Australian Public Service Commission on (02) 6202 3737 or ethics@apsc.gov.au about the process and, where appropriate, possible alternative avenues for consideration.

5.  Preliminary steps following receipt of a whistleblower report

5.1  When a whistleblower report is made to the Director or an authorised person, the Director or authorised person will accept the whistleblower report and give information to the whistleblower about the protections available under subsection 16(1) of the Public Service Act.  For example, the Director or authorised person may provide the person making the whistleblower report with a copy of these procedures.

6.  Protection for employees making whistleblower reports

6.1  Section 16 of the Public Service Act provides that a person performing functions in or for the Museum must not victimise or discriminate against an APS employee because the employee has reported breaches or alleged breaches of the APS Code of Conduct to:

  • the Australian Public Service Commissioner (or a person authorised by the Australian Public Service Commissioner); or
  • the Merit Protection Commissioner (or a person authorised by the Merit Protection Commissioner); or
  • the Director; or
  • an authorised person (that is, a person authorised by the Director for the purposes of section 16 of the Public Service Act).

6.2  The protection in section 16 of the Public Service Act does not extend to APS employees who make anonymous whistleblower reports or to APS employees who make whistleblower reports to anyone other than the Australian Public Service Commissioner, the Merit Protection Commissioner, the Director or an authorised person.

6.3  Neither the Public Service Act nor the Public Service Regulations 1999 (Public Service Regulations) give protection from liability for defamation, and common law protection applies, as modified by State or Territory legislation. If an employee is considering making a whistleblower report and has concerns that the report may be defamatory, or has other legal concerns, the employee should seek independent legal advice prior to making the report.

6.4  The regulations DO NOT give immunity to the whistleblower from being the subject of whistleblower proceedings or Code of Conduct proceedings.

6.5  Details that would identify the whistleblower will be kept confidential as far as possible, while satisfying the requirements of natural justice and procedural fairness. However, this may not always be possible, particularly if the person making the whistleblower report is a key witness in a contested prosecution or other action. In those circumstances, it is likely that his or her identity will become a matter of public record.

6.6  Information and records relating to the investigation, including material and information received or created during the investigation, will be treated as ‘staff in confidence’, and will be maintained, accessed and used only in accordance with the requirements under the Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988.

7.  Procedures for dealing with whistleblower reports

Decision in relation to whether to investigate a whistleblower report

7.1  Where the Director or an authorised person receives a whistleblower report, that person must first consider whether or not to conduct an investigation into the whistleblower report.  The Director or an authorised person may decline to conduct an investigation, or may discontinue an investigation, because the whistleblower report:

  • would be dealt with more appropriately by a different means (such as referral to another agency where the breach is alleged to have occurred, or to the AFP, the Auditor-General, the Commonwealth Ombudsman, or the Inspector-General of Intelligence and Security or being dealt with via a different policy, such as the Guidelines on Preventing Bullying and Harassment in the Workplace or the Code of Conduct Procedures),
  • is vexatious, frivolous, misconceived or lacking in substance,
  • contains insufficient detail, or
  • is such that undertaking the inquiry would not otherwise be justified in all the circumstances (such as where the matter is the subject of an application by the employee before a Court or Tribunal).

7.2  If the Director or authorised person declines to conduct, or discontinues, an investigation into a whistleblower report, they will inform the employee who made the report of this decision in writing.

7.3  If the whistleblower is dissatisfied with the decision to decline to investigate or discontinue the investigation of a whistleblower report, the whistleblower may make the whistleblower report to the Merit Protection Commissioner or the Australian Public Service Commissioner.

Conducting an investigation

7.4  When a whistleblower report is made to the Director or an authorised person, unless the report is declined subject to paragraph 7.1, the Director or authorised person will:

  • investigate the report; or
  • refer the investigation of the report to a person authorised by the Director to investigate the report ('authorised investigator'),

in order to determine whether there is sufficient evidence to justify a separate investigation under the Code of Conduct Procedures.

7.5  Any referral of a whistleblower report to an authorised investigator under paragraph 7.4 will be documented in writing. The authorisation will specify the matters to be investigated and may specify timeframes for the investigation.

7.6  During the course of an investigation into a whistleblower report, the person investigating the report may become aware of circumstances that justify discontinuing the investigation (see paragraph 7.1).  In these circumstances:

  • if the Director or an authorised person is investigating the report, that person should consider whether or not to discontinue the investigation on one or more of the grounds set out in paragraph 7.1; and
  • if an authorised investigator is investigating the report, that person should refer the matter to the Director or an authorised person for consideration in accordance with paragraph 7.1.  The authorised investigator does not have authority to decide whether or not to discontinue the investigation.

In general, a decision to discontinue would only be appropriate where new or additional information comes to light which changes the Director's or authorised person's initial view that it was necessary or appropriate to conduct the investigation.

7.7  Before an adverse finding or recommendation is made against the person who is the subject of the whistleblower report, the Director, authorised person or authorised investigator will consider, having regard to all the circumstances, whether to give that person an opportunity to be heard. 

7.8  If, during the course of the investigation, it becomes apparent to the Director, authorised person or authorised investigator that the whistleblower or another person's interests may be adversely affected by the outcome of the inquiry, the whistleblower or that other person may also be given the opportunity to be heard.

Preparation of report

7.9  If an authorised person or an authorised investigator conducts an investigation into a whistleblower report, that person will prepare a written report to the Director to advise whether there is substance to the allegations and to recommend action that the Director may take. The report may include recommending to the Director that the allegation be dealt with in accordance with the Museum’s Code of Conduct Procedures or that the matter should be dealt with under other relevant provisions such as review of actions, the Museum’s Guidelines on Preventing Bullying and Harassment in the Workplace or other dispute resolution procedures.

7.10  If the Director investigates a whistleblower report, the Director will record the outcome and his recommendations for further action (if any) in writing.

8.  Outcome of investigation

8.1  Where the whistleblower report was made to the Director or an authorised person, the person to whom the whistleblower report was made will advise the employee who made the report, in writing, of the outcome of the investigation, including any referral of the allegation to an external body (or bodies) and/or whether or not action will be taken to determine if there has been a breach of the APS Code of Conduct.

8.2  There is no obligation on the Director to advise the person who made the whistleblower report of the outcome of any action taken under the Code of Conduct Procedures (including the determination of breach or imposition of a sanction) arising from the whistleblower report. The Museum will handle such information in accordance with its obligations under the Privacy Act 1988.  For more information on disclosure, refer also to:

  • The Museum’s Code of Conduct Guidelines which outline in more detail issues relating to the disclosure of information related to Code of Conduct processes; and
  • APS Commission Circular No 2008/3: Providing Information on Code of Conduct Investigation Outcomes to Complainants (released 24 April 2008).

8.3  Where the whistleblower report was made to the Director or an authorised person, findings of an investigation will be dealt with as soon as practicable by the Museum.

8.4  If an employee who makes a whistleblower report is not satisfied with the outcome of the investigation the employee may refer the report to:

  • the Australian Public Service Commissioner (or a person authorised by the Australian Public Service Commissioner); or
  • the Merit Protection Commissioner (or a person authorised by the Merit Protection Commissioner).

8.5  The Museum will deal with the outcome of any findings and/or recommendations made by the Australian Public Service Commissioner or the Merit Protection Commissioner as soon as practicable after he or she is advised of those findings and/or recommendations.

9.  Claims of victimisation or discrimination

9.1  The Museum encourages APS employees who have made a whistleblower report or have assisted in an associated investigation to report any behaviour that they regard as retaliatory.

9.2  Claims of victimisation or discrimination connected with the making of a whistleblower report may be handled in accordance with the Museum’s Guidelines on Preventing Bullying and Harassment in the Workplace. Such claims may also be the subject of action under the Code of Conduct Procedures.

10.  Contacts for information

10.1  Further assistance on whistleblower procedures may be obtained by contacting the HR team on ext. 5156.

Metadata

ID

PRO-016

Version

2.0 (Based on ISO 9001:2000)

Version date

20 June 2013

 

Executive approval date

1 July 2013

Key changes Revisions align with Public Service Act Amendments 2013

File

08/525

Availability

Public & all staff

Keywords

Whistleblower, Code of Conduct, breach

Responsible officer

HR Manager

History

Staff Circular v0.a 20 May 2008
Staff Circular v0.b 16 June 2008
Staff Circular v1.0 15 July 2008
Staff Circular v1.0 21 July 2008
Staff Circular v1.1 2 April 2012

Review date

1 July 2015

Related documents

Code of Conduct Guidelines and Procedures

Contact

National Museum of Australia

GPO Box 1901

CANBERRA ACT 2601

Tel: (02) 6208 5000

Email: information@nma.gov.au

Website: www.nma.gov.au

 

Approved by Executive 1 July 2013