Policy on Reporting Corrupt Conduct, Maladministration and Serious and Substantial Waste within UTS

1. Background and context

The University takes seriously its obligations under the Protected Disclosures Act 1994 (NSW) ('the Act') to ensure that staff who disclose information about corrupt conduct, maladministration and serious and substantial waste can do so without fear of harassment or personal loss.

The absence of corrupt conduct, maladministration and serious and substantial waste will make the University a better place to work. An open, accountable workplace can only enhance the University's competitive edge in providing educational services to the community.

All staff are urged to share the responsibility for ensuring the integrity of our management and administrative practices. Part of this responsibility includes reporting any information that discloses corrupt conduct, maladministration and serious and substantial waste.

The University is strongly committed to:

• ensuring that all staff are aware of how to make a protected disclosure using the University's internal reporting system
• ensuring that bona fide reports are investigated thoroughly and in accordance with the principles of procedural fairness
• providing protection and support for staff who make a protected disclosure, and
• implementing organisational reform identified as necessary following investigation of a disclosure.

2. Purpose and scope

The policy:

• establishes a system for reporting disclosures of corrupt conduct, maladministration and serious and substantial waste within the University – to the Protected Disclosures Coordinator (Director, Internal Audit Unit), a Nominated Disclosure Officer or the Vice-Chancellor
• explains the types of protection and support available to staff under the Act and from the University for when matters are reported
• complements normal lines of communication that are necessary between staff and supervisors when discussing workplace issues
• complements the University's Code of Conduct and other policies that deal with grievance handling, harassment and discrimination.

A summary of information sources that support this Policy, including legislation, websites and UTS policies, is provided in section 6 of this Policy.

3. Definitions

Corrupt conduct includes:

• a University staff member using his or her position dishonestly or in a way that gives someone an improper advantage
• conduct by anyone which may cause a University staff member to use his or her position dishonestly or in a way that could give someone an improper advantage, and
• a wide range of matters including a University staff member misusing information or material obtained in the course of his or her duties, dishonestly using influence, soliciting or accepting bribes; or being involved in fraud.

For the purposes of the Act, conduct is not corrupt unless it could involve a criminal offence, a disciplinary offence or reasonable grounds to dismiss a University staff member. Corrupt conduct may not necessarily involve personal gain.

Sections 7–9 of the Independent Commission Against Corruption Act 1988 (NSW) provide a comprehensive definition of corrupt conduct.

The ICAC's website provides a comprehensive explanation of corrupt conduct including workplace examples at www.icac.nsw.gov.au.

Maladministration is conduct by a University staff member that involves action or lack of action of a serious nature that is:

• contrary to law
• unreasonable, unjust, oppressive or improperly discriminatory or
• based wholly or partly on improper motives.

The NSW Ombudsman's website provides a more comprehensive explanation of maladministration at www.nswombudsman.nsw.gov.au.

Serious and substantial waste refers to any uneconomic, inefficient or ineffective use of University resources, authorised or unauthorised, which results in significant loss or waste of money or resources.

Serious and substantial waste might take many forms including, for example, the purchase of unnecessary or inadequate goods and services, misappropriation or misuse of University property, or serious inefficiency or ineffectiveness leading to non-achievement of program objectives or budget overruns.

4. Policy provisions

4.1 How to make a protected disclosure within the University

Staff are encouraged to report information that shows or tends to show, corrupt conduct, maladministration or serious and substantial waste to one of the following persons:

• the University's Protected Disclosures Coordinator, Director, Internal Audit Unit (telephone (02) 9514 3122, email AuditManager@uts.edu.au)
• a nominated Disclosure Officer (refer Schedule A for list of Officers)
• the Vice-Chancellor (telephone (02) 9514 1330, email vc@uts.edu.au)

Staff choosing to make a disclosure to a Nominated Disclosure Officer should note that the Nominated Disclosure Officer will refer the disclosure to the Protected Disclosures Coordinator or the Vice-Chancellor as appropriate.

The likelihood of a successful investigation is increased greatly if those making a disclosure make their identity known to whom they make a report. Nonetheless, staff are able to make anonymous disclosures if they wish to.

Reports may be made by telephone, in writing or in person. Where persons contemplating making a disclosure are concerned about publicly approaching any of the above people, they can ring the relevant officer and request a meeting in a discreet location away from the workplace.

4.2 Roles and responsibilities

4.2.1 All University staff

It is the responsibility of a staff member making a disclosure to ensure that the information reported is not vexatious, frivolous, intentionally false or misleading.

Staff can play an important role in supporting those who make genuine disclosures by:

• abstaining from any activity that is or could be perceived to be victimisation or harassment of persons who make disclosures, and
• protecting and maintaining the confidentiality of persons they know or suspect to have made disclosures.

4.2.2 Nominated Disclosure Officers

Nominated Disclosure Officers are responsible for receiving, forwarding and /or acting upon disclosures in accordance with the Policy.

Nominated Disclosure Officers will:

• clearly explain to persons making disclosures what will happen in relation to the information received
• when requested, make arrangements to ensure that disclosures can be made privately and discreetly (if necessary, away from the workplace)
• put in writing and date any disclosures received orally
• deal with disclosures impartially
• forward disclosures to the Director, Internal Audit Unit (Protected Disclosures Coordinator) or the Vice-Chancellor (Principal Officer) for assessment
• take all necessary and reasonable steps to ensure that the persons involved in the allegation are protected under the Act
• act fairly to persons who are the subject of disclosures
• support persons who make disclosures and protect them from victimisation, harassment or any other form of reprisal, and
• provide acknowledgement to persons making reports when organisational objectives are advanced as a result of the report.

4.2.3 The Protected Disclosures Coordinator (Director, Internal Audit Unit)

The Protected Disclosures Coordinator has a pivotal position in the internal reporting system and systematises all disclosures. The Protected Disclosures Coordinator will:

• provide an alternative internal reporting channel to Nominated Disclosure Officers and to the Vice-Chancellor impartially assess each disclosure to determine:
  • whether the disclosure appears to be a protected disclosure within the meaning of the Act, and
  • the appropriate action to be taken in relation to the disclosure
• consult the Vice-Chancellor and other relevant senior management as appropriate
• be responsible for carrying out or coordinating any internal investigation arising out of a disclosure, subject to the direction of the Vice-Chancellor in carrying out his/her functions
• report to the Vice-Chancellor on the findings of any investigation and recommended remedial action
• take all necessary and reasonable steps to ensure that the identity of persons who make disclosures, and persons who are the subject of the disclosures, are kept confidential
• act fairly to persons who are the subject of disclosures
• support persons who make disclosures and actively protect them from victimisation, harassment or any other form of reprisal
• provide staff making disclosures with notification of the action taken or proposed to be taken in respect to the disclosures within six months of the disclosure being made
• report suspected or actual corrupt conduct to the Vice-Chancellor, to enable that officer to fulfill his/her reporting responsibilities to the ICAC
• assist management in ensuring that all staff are aware of how to make a protected disclosure using the University's internal reporting system, and
• report suspected criminal offences to the police upon consultation with the Vice-Chancellor.

4.2.4 Principal Officer (Vice-Chancellor)

Disclosures may be made directly to the Vice-Chancellor, who will handle the matters with the same care as the Protected Disclosures Coordinator. The Vice-Chancellor will also:

• receive reports from the Protected Disclosures Coordinator on the findings of any investigation and any recommendations for remedial action, and determine what action should be taken
• have primary responsibility for protecting staff who make disclosures, or provide information to any internal or external investigation of a disclosure, from victimisation, harassment or any other form of reprisal
• be responsible for implementing organisational reform identified as necessary following investigation of a disclosure, and
• report criminal offences to the police and actual or suspected corrupt conduct to the ICAC.

4.2.5 Supervisors

In the past, staff members have been invited to make disclosures directly to supervisors. Nominated Disclosure Officers will be appointed to protect the interests of all persons involved in an allegation. Supervisors who receive disclosures they believe have the potential to be protected disclosures within the meaning of the Act are asked to report the matter directly to a Nominated Disclosure Officer, the Protected Disclosures Coordinator or the Vice-Chancellor.

4.3 External avenues for disclosures

University staff may also make a protected disclosure to one of the investigating authorities under the Act. These include:

• the Independent Commission Against Corruption – for reports on corrupt conduct (telephone (02) 8281 5999 or 1800 463 909 toll free), or
• to the NSW Ombudsman – for reports on maladministration (telephone (02) 9286 1000), or
• the NSW Auditor-General – for reports on serious and substantial waste (telephone (02) 9285 0155).

The person making the disclosure should discuss with the relevant external agency whether the disclosure is protected under the Act.

In limited circumstances, where the above avenues have been exhausted, a protected disclosure may be made to a member of parliament or journalist (refer to section 19 of the Act or consult the Director, Internal Audit Unit).

4.4 Guidelines on protection and support of staff

4.4.1 Mentors

Apart from protections provided by the Act, the University will provide a 'mentor' to any person making a protected disclosure, if requested. The role of the mentor is not to investigate the matter but to:

• provide moral support by accompanying the staff member to interviews and meetings, and
• otherwise respond to any concerns of the staff member.

The mentor may be a senior member of staff or other appropriate person.

The Protected Disclosures Coordinator will arrange a mentor through consultation with the person making the disclosure and UTS Human Resources.

Nominated Disclosure Officers and the Protected Disclosures Coordinator will be sensitive to situations that may arise where a staff member, other than the one making the report (including a person who is mentioned in a disclosure) may need to be offered advice or support.

4.4.2 Confidentiality

Disclosures will be investigated as discreetly as possible, with a strong emphasis on maintaining confidentiality both as to the identity of persons making disclosures and persons the subject of disclosures.

In accordance with the Act, anyone receiving a protected disclosure from a member of staff has the responsibility to ensure that information that might identify or tend to identify the person making the report is not released. The exceptions to the confidentiality requirement are where:

• the person consents in writing to the disclosure of that information, or
• it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person that the disclosure may concern, or
• the University is of the opinion that it is necessary to disclose the information to effectively investigate the matter or that disclosure is otherwise in the public interest.

Before a decision is made to release such information, the Vice-Chancellor or the Protected Disclosures Coordinator may discuss the need to do so with the person who has made the disclosure. The need to release such information may occur where, as a result of a disclosure, proceedings are commenced in a court, tribunal or an investigative committee.

4.4.3 Freedom of information exemption

Under the Freedom of Information Act 1989 (NSW), a document is exempt from release if it contains matter that would disclose issues relating to a protected disclosure within the meaning of the Act.

4.4.4 Protection against unfair treatment for making a disclosure

The Act provides protection by imposing penalties on a person who takes "detrimental action" against another person substantially in reprisal for a protected disclosure. Penalties can also be imposed by means of fines and imprisonment.

"Detrimental action" means action causing, comprising or involving any of the following:

• injury, damage or loss
• intimidation or harassment
• discrimination, disadvantage or adverse treatment in relation to employment
• dismissal from, or prejudice in, employment, or
• disciplinary proceeding.

Any member of staff who believes that they have been subject to any kind of unfair treatment because they have made a disclosure in accordance with this Policy should immediately bring the allegations to the attention of the Vice-Chancellor or the Protected Disclosures Coordinator. An internal investigation and/or formal disciplinary inquiry will be commenced into the alleged unfair treatment.

If a member of staff who has made an internal disclosure feels that such reprisals are not being effectively dealt with, he or she should contact the ICAC or the NSW Ombudsman.

A staff member who treats unfairly another staff member for making a report under this policy may be subject to disciplinary action.

4.4.5 Protection against actions

The Act provides that a person is not subject to any liability for making a protected disclosure and no action, claim or demand may be taken or made of or against the person for making the disclosure. This provision has effect despite any duty of secrecy or confidentiality or any other restriction on the UTS staff member.

A person who has made a protected disclosure has a defence of absolute privilege in proceedings for defamation.

A person who has made a protected disclosure is taken not to have committed any offence against an Act that imposes a duty to maintain confidentiality with respect to any information disclosed.

4.4.6 Rights of persons the subject of disclosures

Persons who are the subject of protected disclosures have the right to:

• be informed as to the substance of the allegations
• be given a reasonable opportunity to put their case (either orally or in writing) to the persons carrying out the investigation before any final determination or the like is made
• be formally advised as to the outcome of the investigation, regardless of the outcome
• be appropriately supported by the University and its senior management, where the allegations contained in a disclosure are clearly wrong or unsubstantiated.

4.4.7 When are disclosures not protected?

Disclosures are not protected if they:

• are not voluntary disclosures made by staff in accordance with this Internal Reporting Policy or to one of the investigation authorities nominated in section 6 of this policy
• do not disclose information that shows or tends to show , corrupt conduct, maladministration or serious and substantial waste
• are frivolous or vexatious (ie initiated with insufficient grounds and serving only to cause annoyance)
• primarily question the merit of government policy
• are made primarily with the motive of avoiding disciplinary action.

The Act imposes penalties for deliberately making a false or misleading statement when reporting corrupt conduct, maladministration or serious and substantial waste.

4.5 Breaches of this policy

Breaches of this policy may result in:

• action under University disciplinary policy and procedures (e.g. if there is any unnecessary breach of confidentiality)
• infringement of the Protected Disclosures Act 1994 (NSW).

5. Authorities and accountabilities

The Internal Audit Unit is responsible for the periodic review of ongoing appropriateness and effectiveness of this Policy, in consultation with the Vice-Chancellor and the Audit and Review Committee of Council.

6. Specification of related UTS and other relevant documentation

The following sources of information support and complement this Policy:

6.1 Legislation and external agencies

The Protected Disclosures Act 1994 (NSW) – copies of the Act are available from the Internal Audit Unit.

Independent Commission Against Corruption Act 1988 (NSW) – copies of the Act are available from the Internal Audit Unit.

The Ombudsman's Act 1974 (NSW) – copies are available from the Internal Audit Unit.

The Ombudsman's Protected Disclosures Guidelines (4th Edition) provide practical guidance to public officials who have the responsibility for implementing the Act to assist them in ensuring the protected disclosures are properly addressed and there are no reprisals taken against any person for making a legitimate disclosure. The Internal Audit Unit retains a copy of these guidelines.

Freedom of Information Act 1989 (NSW) – copies of the Act are available from the Governance Support Unit.

6.2 UTS Policies

Code of Conduct

Handling Staff Grievances policy

Enterprise Agreement – Discipline

General Rules – Discipline

Schedule A: List of Nominated Disclosure Officers

Members of the executive (apart from the Vice-Chancellor who, as the University's Principal Officer, already has a defined role in terms of the Act);

The Dean, Faculty of Law;

The Dean, Faculty of Nursing, Midwifery and Health;

The Director, Governance Support Unit;

The Director, Human Resources Unit;

The Director, UTS Legal Services;

Such members of staff of the Internal Audit Unit as are designated as such by the Vice-Chancellor on the recommendation of the Director, Internal Audit.

7. Approval and revisions tables

7.1 Approval

Revision/modification history

Policy published: March 2006