Protected Disclosures

 

POLICY STATMENT

The Victorian Ombudsman is a key part of Victoria’s integrity framework. We encourage people to report improper conduct in the public sector, and support action to investigate and address that conduct.
 
We also expect the highest standards of integrity on the part of our own officers. We will facilitate reports about improper conduct by our officers and cooperate with lawful investigations. We will also take appropriate steps to protect people from reprisals. 

Scope

These procedures constitute the Victorian Ombudsman’s procedures for the purposes of section 58 of the Protected Disclosure Act 2012.

They explain the steps we take to:

  • facilitate disclosures about other public bodies and public officers under the Protected Disclosure Act
  • handle disclosures and notify the Independent Broad-based Anti-corruption Commission (IBAC)
  • assess and investigate matters referred to us by IBAC, subject to the powers and discretions in the Ombudsman Act 1973.
They also set out our procedures for dealing with protected disclosures made about Ombudsman officers, and protecting people from ‘detrimental action’ taken in reprisal for disclosures. 

About Victoria's protected disclosure regime

The Protected Disclosure Act is Victoria’s public sector whistleblower legislation. Its purposes are to:
  • encourage and facilitate disclosures about improper conduct in the public sector, and detrimental action taken in reprisal for disclosures
  • provide protections for people who make disclosures, and people who may suffer detrimental action
  • provide for the confidentiality of the content of disclosures and the identity of people who make disclosures (Protected Disclosure Act, section 1).

Guide to key terms

Assessable disclosure

A ‘disclosure’ that our office is required to notify to IBAC (see pages 13-15 for more information).

Detrimental action

See pages 7-8

Discloser

A person who makes a disclosure

Disclosure A report about improper conduct or detrimental action. See page 5.

IBAC

Independent Broad-based Anti-corruption Commission

Improper conduct

See pages 6-7

Protected disclosure

A disclosure made in accordance with Part 2 of the Protected Disclosure Act

Protected disclosure complaint

A disclosure that has been assessed by IBAC and determined to be a protected disclosure complaint

Public body

See page 6

Public officer

See page 6

Roles and responsibilities

IBAC provides a clearinghouse for protected disclosures. It determines whether a disclosure is a ‘protected disclosure complaint’ for the purposes of the Act, and how it will be dealt with.

The Victorian Ombudsman is one of a number of other bodies that can receive and, depending on IBAC’s decision, investigate disclosures. Our role is to:

  • to receive disclosures about most public bodies and public officers (see page 12)
  • notify IBAC of disclosures that meet the thresholds in the Protected Disclosure Act (see pages 13-15)
  • investigate matters referred by IBAC, subject to the powers and discretions in the Ombudsman Act (see pages 16-18)
  • collate and publish certain statistics about disclosures (see page 25).

What is a disclosure?

‘Disclosure’ is the term used in the Protected Disclosure Act to describe a report about:

  • ‘improper conduct’ by a person, public officer or public body
  • ‘detrimental action’ by a public officer or public body in reprisal for a disclosure.
A disclosure can be about conduct that has already taken place, is occurring now, or may happen in the future.

We interpret the term ‘disclosure’ in the ordinary sense of the word to mean information that is a ‘revelation’ to the person receiving it. Information may not be a disclosure if it is already publicly known.

For example, it is unlikely that a person who merely repeats information from a media report will have made a disclosure. It may be different if the person provides new, additional information that is not public.

Who can make a disclosure?

Any person or group of people can make a disclosure. They can be an employee of the public body, a contractor or tenderer, a client or a member of the public.
 
Disclosures cannot be made by companies or businesses. The Protected Disclosure Act only provides for ‘a natural person’ to make a disclosure (Protected Disclosure Act, section 9). Any disclosure needs to be made by an officer or employee of the company or business.
 
People can make a disclosure anonymously (Protected Disclosure Act, section 12(2)(b)). However, this may limit our ability to assess or investigate the disclosure e.g. if we need to contact the discloser for more information.

Who can a disclosure be about?

People can make disclosures about:

  • public bodies or public officers
  • another person whose conduct adversely affects the honest performance of a public body’s or public officer’s official functions, or intends to adversely affect their effective performance e.g. a person who tries to bribe a public officer.
Public bodies include government departments and statutory authorities, government-owned companies, local councils, universities and TAFEs, public hospitals and bodies performing public functions on behalf of the state (see Protected Disclosure Act, section 6 and Independent Broad-based Anti-corruption Commission Act 2011, section 6).

Public officers include ministers, members of parliament, statutory officeholders, public servants, teachers, local government councillors and employees, and police (see Protected Disclosure Act, section 6 and IBAC Act, section 6).

There are only a handful of public bodies and officers that cannot be the subject of a disclosure – a Public Interest Monitor, the Special Investigations Monitor, the Office of the Special Investigations Monitor, the  Victorian Inspectorate and its officers, and a court (Protected Disclosure Act, section 9(3)). 
 
A person making the disclosure does not need to be able to identify the person or body to whom the disclosure relates (Protected Disclosure Act, section 10).

What is improper conduct?

The Protected Disclosure Act defines ‘improper conduct’ (see section 4) to mean:

  • corrupt conduct. This is conduct that involves an indictable offence (an offence punishable by imprisonment for five years or more) or the common law offences of attempting to pervert the course of justice, bribery of a public official, perverting the course of justice or misconduct in public office (see IBAC Act, section 4).
  • specified conduct. This is conduct that, if proved, would constitute a criminal offence, or reasonable grounds for dismissal.

Only certain types of conduct can amount to improper conduct, namely:

  • conduct of any person that adversely affects the honest performance by a public officer or public body of their official functions e.g. offering or taking a bribe
  • conduct of a public officer or public body that:
    • constitutes or involves a dishonest performance of their official functions e.g. misusing a corporate credit card
    • constitutes or involves knowingly or recklessly breaching public trust e.g. assaulting a client or publishing false data
    • involves misuse of information or material obtained in their official capacity e.g. insider trading
  • conduct of a person intended to adversely affect the effective performance of a public officer or body, leading to a benefit described in the Act
  • conduct that could constitute a conspiracy or attempt to engage in any of the conduct described above
  • in the case of specified conduct, conduct of a public officer or public body that involves substantial mismanagement of public resources, substantial risk to public health or safety, or substantial risk to the environment e.g. ignoring major safety problems with public infrastructure.

What is detremental action?

Detrimental action includes (see Protected Disclosure Act, section 3):
  • action causing injury, loss or damage e.g. assaulting a person or damaging their property
  • intimidation or harassment e.g. sending threatening letters
  • discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, employment, trade or business, including disciplinary action e.g. overlooking a person for promotion or cancelling a contract.  
Detrimental action includes threats to take such action, and inciting or permitting someone else to take action (Protected Disclosure Act, section 43).
 
The reason for the person taking action in reprisal must be a ‘substantial reason’ for the action (Protected
Disclosure Act, section 43(3)).
 
The detrimental action provisions do not just protect disclosers. They also protect a person who is believed to have made a disclosure (even if this belief is mistaken), and a person who has or intends to cooperate with an investigation of a disclosure e.g. a potential witness (Protected Disclosure Act, section 43(1)).

Who can a disclosure be made to?

This depends on which public body or public officer the disclosure is about.

The Protected Disclosure Act requires disclosures about some bodies and officers to be made to specific agencies. These are set out in the table on page 9. 

Disclosures about other bodies can be made to IBAC.

The Victorian Ombudsman can also receive a disclosure about a public body or public officer if, were IBAC to determine the disclosure to be a protected disclosure complaint, we would be authorised to investigate the subject matter of that disclosure (Protected Disclosure Act, section 13(2)(b)). In practice, this means government departments, most statutory authorities, public servants, councillors and council employees.

How are disclosers protected?

The Protected Disclosure Act protects disclosers by shielding them from legal consequences that might otherwise attach to disclosing information about improper conduct. It provides that disclosers:

  • are not subject to civil or criminal liability or any administrative liability arising by way of administrative process (including disciplinary action) for making the disclosure (Protected Disclosure Act, section 39)
  • do not commit an offence under the Constitution Act 1975 or any other Act that imposes a duty to maintain confidentiality, or any other restrictions on disclosure of information (Protected Disclosure Act, section 40)
  • do not breach any other obligation requiring them to maintain confidentiality, such as an oath (Protected Disclosure Act, section 40)
  • cannot be liable for defamation in relation to the information included in the disclosure (Protected Disclosure Act, section 41).

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The Act also deals with reprisals by:

  • making it an offence to take detrimental action in reprisal for a protected disclosure (Protected Disclosure Act, section 45)
  • allowing the victim to sue the person who takes detrimental action for damages (Protected Disclosure Act, section 47). If the person who takes detrimental action is an employee or agent of a public body, the public body will be vicariously liable unless it can show it reasonable precautions to prevent the detrimental action (Protected Disclosure Act, section 48)
  • allowing them, and certain investigating bodies, to seek a court order that the person remedy the action, or an injunction (Protected Disclosure Act, section 49 and 50)
  • allowing some public officers who make a disclosure to apply for a transfer of employment (Protected Disclosure Act, section 51). 

Disclosers should note that there are some limits to these protections:

  • The protections do not apply to a discloser who provides information that they know is false or misleading in a material particular (Protected Disclosure Act, sections 39(2), 40(2), 41(2) and 43(2)).
  • If the discloser has engaged in some kind of misconduct themselves, they remain liable for that conduct (Protected Disclosure Act, section 42). People cannot escape liability for their own improper conduct by disclosing it under the Act.
  • The Protected Disclosure Act does not prevent the discloser’s manager from taking management action, provided that the fact that the person made the disclosure is not a substantial reason for the action (Protected Disclosure Act, section 44).

What information is confidential?

One of the other ways that the Protected Disclosure Act protects disclosers and other people involved in protected disclosure investigations is by ensuring the confidentiality of information.
 
The confidentiality provisions are summarised in the table on page 11. Breach of these provisions is an offence.
 
The application of these provisions, and the exceptions to them, is complex and we encourage people to read the relevant legislation and seek legal advice about their obligations if necessary.
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How we deal with disclosures about other public bodies and officers

Public bodies and officers we can receive disclosures about

The Victorian Ombudsman can receive a disclosure about a public body or public officer if, were IBAC to determine the disclosure to be a protected disclosure complaint, we would be authorised to investigate the subject matter of that disclosure (Protected Disclosure Act, section 13(2)(b)). In practice, this means government departments, most statutory authorities, public servants, councillors and council employees.
 
If someone tries to make a disclosure to us about a public body or public officer and we cannot receive the disclosure, we will advise them how to make their disclosure to the correct body.

How to make a disclosure to us

Disclosures can be made to any Ombudsman officer in the following ways (Protected Disclosure Regulations 2013, regulation 7(2)):
  • Orally:
    • in person
    • by telephone
    • by some form of electronic communication not involving writing e.g. a voicemail message.
Oral disclosures must be made in private. This means that the person or group of people making the disclosure must reasonably believe that the only people who are present or able to listen to the disclosure are themselves, our officers and a lawyer (if any) (Protected Disclosure Regulations, regulations 5 and 7). Disclosers should avoid making disclosures in public spaces or where people can overhear them. Our officers will ask people if they are in private before the discussion proceeds.
Disclosures cannot be made by fax.
It is helpful if disclosers provide:
  • a description of the alleged improper conduct or detrimental action
  • their grounds for believing the conduct occurred
  • any supporting documentation

What we do with disclosures

Receiving disclosures
We allocate disclosures to officers in our investigations area to assess if we should refer or ‘notify’ them to IBAC (Protected Disclosure Act, section 21).
 
Sometimes people complain to us about issues involving improper conduct without expressly stating that they want to make a disclosure or asking for protection under the Protected Disclosure Act e.g. they make a general complaint about an assault in care. We also assess these complaints under the Protected Disclosure Act. If a person makes broad or unclear references to corruption, we may clarify the issues with them first to check that they are genuinely raising concerns about such conduct. 
 
If a person does not want us to treat their complaint as a disclosure, they must expressly state this, in writing, at the time the disclosure is made (Protected Disclosure Act, section 20(1)). We will advise the person of this and give them 24 hours to write to us.
 
People contacting our office should be aware, however, that we have separate obligations to notify IBAC about matters involving corrupt conduct and may still need to notify IBAC under those provisions (Ombudsman Act, section 16E).
 
Assessing disclosures
The table on page 14 lists the issues we consider when assessing a disclosure.
 
We may ask the person to provide more information or documents to assist our assessment.
 
We have no power to obtain information from other organisations or persons. We will only contact other organisations if:
  • the alleged conduct poses an immediate threat to the health and safety of an individual or the preservation of property e.g. the disclosure alleges that a public officer is lighting fires
  • the alleged conduct involves serious criminal conduct e.g. a public officer is assaulting people in care, and should be reported to Victoria Police or the relevant agency so it can take appropriate management action
  • an organisation needs to preserve evidence, such as CCTV footage, that maybe lost or destroyed while we assess the disclosure.
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In light of the serious nature of disclosures and the consequences for those involved, the final decision about whether the disclosure meets the criteria for notification to IBAC is taken at a senior level i.e. Assistant Ombudsman or above. 

Notifying IBAC and the discloser
If we consider that the disclosure may be a protected disclosure, we notify it to IBAC within 28 days (Protected Disclosure Act, section 21). We give IBAC:
  • copies of relevant documents e.g. any correspondence or documents provided by the discloser and file notes of our discussions with the discloser
  • the name and contact details of the discloser, if they have provided them to us.
We also advise the discloser that we have notified the disclosure to IBAC, unless the discloser is anonymous (Protected Disclosure Act 12(3) and 24(2)).
 
If we consider that the disclosure does not meet the criteria for notification to IBAC, we:
  • we advise the discloser in writing within 28 days, unless the discloser person indicated or it otherwise appears that they do not want to receive protections under the Protected Disclosure Act (Protected Disclosure Act, sections 24(3) and 24(6))
  • assess the matter as a ‘complaint’ under the Ombudsman Act instead (see our policies on our website at www.ombudsman.vic.gov.au). 
A discloser who disagrees with our decision may make a complaint to us (see Complaints about the Ombudsman policy on our website at www.ombudsman.vic.gov.au) or approach IBAC to make the disclosure to them.
 
Can a disclosure be withdrawn?
As noted above, we must assess a disclosure under the Protected Disclosure Act unless the person expressly states, in writing at the time the disclosure is made, that it is not a disclosure for the purposes of the Protected Disclosure Act (Protected Disclosure Act, section 20(1)). It is not otherwise possible to withdraw a disclosure once it has been made.

What happens after we notify IBAC?

IBAC assesses the disclosure and determines if it is a protected disclosure complainant (Protected Disclosure Act, section 26).
 
IBAC advises us of its decision (Protected Disclosure Act, section 27). They also advise the discloser (Protected Disclosure Act, sections 28 and 29).
 
IBAC decides what happens to the disclosure from that point. It may (IBAC Act, sections 58 and 73):
  • refer the matter back to our office, or to another body, for investigation
  • investigate the matter itself
  • dismiss the matter.
We take no further action in relation to the disclosure, unless it is referred back to us by IBAC.

What if IBAC refers the matter to us to investigate?

Assessing protected disclosure complaints
The Victorian Ombudsman must investigate protected disclosure complaints referred by IBAC, unless an exception applies (Ombudsman Act, section 15C).
 
Officers in our investigations area assess the protected disclosure complaint against the criteria in the Ombudsman Act to determine if we should investigate (Ombudsman Act, sections 15D and 15E). The table on page 17 summarises these criteria.
 
We may contact the discloser for further information or documents to assist our assessment. We can also make enquiries with other organisations at this point (Ombudsman Act, section 13A).
 
If we decide not to investigate, we inform the person who made the disclosure in writing of our decision and reasons (Ombudsman Act, section 15F).
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Conducting the investigation
We investigate protected disclosure complaints in the same way that we investigate other complaints under the Ombudsman Act. Our Investigations policy (available on our website at www.ombudsman.vic.gov.au) and procedure set out the processes we follow.
 
Given the broad range of matters that can be the subject of a protected disclosure complaint, it is difficult to know how long an investigation will take. It is not uncommon for complex matters, where significant evidence needs to be gathered, to take many months to complete.
 
What if new disclosures are made in the course of the investigation?

Sometimes witnesses make additional disclosures to our officers in the course of an investigation. If the disclosure concerns the same subject matter as the protected disclosure complaint we are investigating, this is known as a ‘related disclosure’ (Protected Disclosure Act, section 34). We treat these disclosures as follows:

  • if the disclosure is made by the same person who made the original disclosure, we will investigate the matter as part of our investigation (Protected Disclosure Act, section 35)
  • if the disclosure is made by another person, we assess whether it is a protected disclosure that should be notified to IBAC (Protected Disclosure Act, section 36). We advise the discloser of our decision in writing within 28 days (Protected Disclosure Act, section 37).
At the end of the investigation
At the end of the investigation, the Ombudsman reports the findings to the principal officer of the public body (e.g. the secretary of a department or the chief executive officer), the responsible minister and, in the case of an investigation involving a local council, the mayor (Ombudsman Act, sections 23 (2A) and (3)). She may make recommendations about action that should be taken as a result of the investigation (Ombudsman Act, section 23(2A)).
 
The Ombudsman may also decide to table the report in Parliament (Ombudsman Act section 25(2)).
 
We do not include any information in the report that could be used to identify the discloser (Ombudsman Act sections 25A(1A) and 23(6A)). This includes the person’s name, position title and employer and other information that could be used to identify the person. There are some exceptions e.g. where the person has given written consent, or an investigating entity has already published the information in a report to Parliament (Ombudsman Act section 23(6A)).
 
We also inform the discloser about the result of the investigation and any recommendations we made. We can also provide any other information we think proper (Ombudsman Act, sections 24(1) and (2)). The only exception is where we consider that this would (Ombudsman Act, section 24(3)):
  • not be in the public interest or in the interests of justice
  • put a person’s safety at risk
  • cause unreasonable damage to a person’s reputation
  • prejudice any criminal proceedings or investigations, or investigations by our office, IBAC or the Victorian Inspectorate
  • otherwise contravene any certain secrecy obligations or involve the unreasonable disclosure of information relating to the personal affairs of any person.