In this section
START OF Policies and procedures
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In December 2010, the Public Interest Disclosure Act 2010 was introduced to replace the Whistleblowers Protection Act 1994.
Legal Aid Queensland (LAQ) is committed to creating and sustaining a positive ethical climate with accountable behaviour. This comes from leadership that openly recognises the significant contribution staff make to our success and strongly encourages disclosure of unethical and fraudulent behaviour.
View our Public Interest disclosure policy and procedure(PDF, 211KB).
The reporting of suspected corrupt conduct within the Queensland public sector is fundamental to its ongoing integrity and health. (Brown et al. 2004)
The most effective protection for a person making a public interest disclosure is the right organisational culture. Legal Aid Queensland (LAQ) is committed to creating and sustaining a positive ethical climate with accountable behaviour. This comes from leadership that openly recognises the significant contribution staff make to our success and strongly encourages disclosure of unethical and fraudulent behaviour.
LAQ aims to provide clear guidance to staff on how to handle and deal with the complex issues associated with an ethical dilemma and when faced with potential wrongdoing.
The purpose of this policy and procedure is to provide information about:
The policy and procedure also demonstrates LAQ ’s commitment to its governance obligations by ensuring effective compliance with legislation and policy. Encouraging employees and others to disclose information about suspected wrongdoing and taking action on those disclosures maintains public confidence in the integrity, accountability, honesty and impartiality of LAQ operations and decisions.
• Public Interest Disclosure Act 2010
• Public Sector Ethics Act 1994
• Crime and Corruption Act 2001
Code of Conduct for Queensland Public Service
The Public Sector Ethics Act 1994 and the Public Interest Disclosure Act 2010 provide the ethical framework and explain the protection principles. The Crime and Corruption Act 2001 provides an external reporting mechanism and an independent investigative and enforcement body.
Administrative Action means any action about a matter of administration, including, for example:-
However this does not include an operational action of a police officer or of an officer of the Crime and Corruption Commission.
Appropriate Person means one of a defined list of people to whom a PID may be made.
Corrupt Conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—
Without limiting the above definition, Corrupt Conduct could be considered one of the following: -
Disability means a permanent disability or one likely to be permanent:-
Discloser means a person who makes a public interest disclosure.
Journalist means a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media.
Maladministration is administrative action that:-
Oversight Agency means The Office of the Ombudsman.
Protected Discloser means a person who makes a PID in accordance with provisions contained within the Public Interest Disclosure Act 2010 and who is granted protected status (previously known as “whistleblower protection status”).
Public Funds are funds available to, or under the control of, a public sector entity and include, for example, public moneys within the meaning of the Financial Accountability Act 2009.
Public Health or Safety includes the health or safety of persons:
Public Interest Disclosure means a disclosure of information specified in the Public Interest Disclosure Act 2010 (sections 12 and 13) and made to an appropriate public sector entity that has the responsibility or power to take appropriate action about the information disclosed or to provide an appropriate remedy.
Reprisal means causing, attempting to or conspiring to cause, detriment to another because, or in the belief that, they have made, or intend to make, a PID.
Substantial and specific (e.g. describing danger to the environment) While not defined in the Act, substantialmeans “of a significant or considerable degree”. It must be more than trivial or minimal and have some weight or importance. Specificmeans “precise or particular”. This refers to conduct or detriment that is able to be identified or particularised as opposed to broad or general concerns or criticisms.
Under the Code of Conduct for the Queensland Public Service (section 1.1), it is an ethical obligation of public officials to report suspected wrongdoing when they become aware of it or suspect it occurring. LAQ employees may make a PID to:-
An employee should clearly advise the person receiving their disclosure that it is a Public Interest Disclosure to ensure their report is given PID status and they receive appropriate protection.
Members of the public may make a PID on matters listed in Section 8 (3).
Members of the public may make a PID to the Chief Executive Officer, Manager Human Resources, PID Coordinator, the Crime and Corruption Commission, a Member of the Legislative Assembly or to any LAQ employee responsible for receiving the type of information being disclosed, or by completing the complaints form published on the LAQ internet site.
When a LAQ employee receives a PID from a member of public, they must treat the matter seriously and confidentially and refer it to:
The PID Co-ordinator (Principal HR Officer, Human Resources) must also be advised.
A disclosure can be made in writing or orally and anonymously. Where an employee receives an oral PID they should request the discloser to put the details in writing. If they are unable or unwilling to do so the employee receiving the PID should document it and ask the discloser to confirm the contents before signing it. If circumstances (e.g. telephone caller who remains anonymous) prevent this occurring, the officer receiving the PID should record the date, time and circumstances of the PID. It should then be forwarded to the PID Co-ordinator, Human Resources.
The person making the disclosure may remain anonymous. However, the successful investigation of a disclosure often depends on the ability of the investigating officer(s) to obtain further information from the person making the disclosure.
Disclosure to a journalist is an avenue of last resort. An employee may only make a disclosure to a journalist when they have made a PID using the approved LAQ procedure, and the entity to which the disclosure was made or, if the disclosure was referred to another agency/department, the entity to which the disclosure was referred:-
In these circumstances only, will the disclosing employee retain protected status. The person may make a disclosure of substantially the same information that was made in the original PID.
All PIDs received must be referred as soon as possible to the PID Co-ordinator to determine action to be taken. If there is any doubt whether a disclosure is a PID, it should be assumed that it is protected by the Act and be managed as if it were a PID.
All cases of corruption are referred to the Crime and Corruption Commission (s38, Crime and Corruption Act 2001) for assessment and LAQ will be advised accordingly. In most instances, following assessment, the Crime and Corruption Commission will return the matter to be dealt with by LAQ. Only the most serious and/or disclosures, that demonstrate a reasonable suspicion of corruption and those where it is necessary to promote public confidence, are dealt with directly by the Crime and Corruption Commission.
Code of Conduct breaches are referred to Manager, Human Resources for assessment and follow-up.
LAQ may decide to take no further action on a PID when:
Written reasons for not taking any further action must be provided to the person making the disclosure. Once received, if the person making the disclosure is not satisfied, they have 28 days to apply for a review of the decision.
LAQ will treat all PIDs appropriately. A discloser’s concerns will be taken seriously and all steps will be taken to ensure the privacy and confidentiality (as far as possible) of a discloser throughout the appropriate process.
An employee making a disclosure needs to be aware that the matters surrounding the investigation will be confidential and the discloser attempt to maintain the integrity of the process by not discussing it with work colleagues or other unconnected with the matter.
LAQ has a responsibility to establish reasonable procedures to support and protect its employees from reprisals that are, or may be, taken against them as a result of making a PID and to support them through the investigation process (Public Interest Disclosure Act 2010).
The manager/supervisor of an employee who makes a disclosure must undertake a risk assessment of the likelihood of reprisal action being taken.
Where the risk level is assessed as anything greater than low, a case management strategy will be developed and implemented to mitigate the risk. One such strategy may be relocation to another work group or location.
Employees who are the subject of an adverse allegation, and their families, are able to seek free, professional and confidential counselling through LAQ’s employee assistance provider, details of which are published on the LAQ intranet – Employee Assistance Service.
Employees will be assumed to be innocent of any adverse allegation until evidence is produced that proves otherwise.
Employees will always be given the opportunity to respond to an allegation before any adverse finding is made. The LAQ delegate’s final decision is impartial and is based on the facts.
To the best of its ability, the LAQ will also support members of the public who make PIDs through providing regular contact and advice throughout the process.
The Public Interest Disclosure Act 2010 does not provide for protection of a person who:-
A reprisal against a protected discloser is a criminal offence.
Reprisals against an employee who makes a disclosure, or fears that they may be subject to reprisal action, must be reported immediately to the PID Co-ordinator, the Manager, Human Resources or their manager/supervisor.
In the event that reprisal action is taken, protected disclosers may lodge a complaint with the Anti-Discrimination Commission or the Queensland Industrial Relations Commission, or lodge a claim for damages with the District or Supreme Court.
The Queensland Industrial Relations Commission or Supreme Court can grant an injunction against reprisal action.
Protected disclosers may also lodge joint action against LAQ, as employer, with either their complaint in a commission or their claim in court. LAQ is able to defend this claim of vicarious liability by demonstrating that, on the balance of probabilities, it took reasonable steps to prevent reprisal against the disclosers occurring.
Reasonable management action is not reprisal and may be taken against an employee who has made a PID. However, the manager’s reasons for taking the action must not include the fact the employee has made the PID and be in accordance with LAQ policies and processes, including procedural fairness principles.
Examples of reasonable management action are given below:
The Chief Executive Officer or delegated officer of LAQ will determine whether an investigation is required based on the seriousness of the allegations and any Crime and Corruption Commission directions. After a decision to investigate has been made, a specialist officer will be engaged to undertake the investigation. During this process, all available parties named in the disclosure, and in subsequent interviews, will be contacted for an interview where they may provide their version of events.
At the conclusion of the interview stage, the investigating officer collates the information they have gathered and prepares a report for LAQ, which may include recommendations, and makes a determination as to whether on the balance of probabilities the complaint (or each allegation) has been substantiated or not.
The delegate receives the investigating officer’s report, considers the recommendations, then approves or does not approve the recommended action.
The discloser will be provided with reasonable information in writing about the action taken on their disclosure and the results. Before information is released it must be considered whether giving the information is likely to adversely affect:-
LAQ must report to the Public Service Commission (PSC) statistical information about PIDs and any other information requested by the PSC regarding LAQ’s performance in relation to the administration of the Public Interest Disclosure Act 2010.
This information, together with the PID statistics for all public service agencies/departments and Government Owned Enterprises covered by the Public Interest Disclosure Act 2010 will be reported in the Annual Report for the PSC.
It is an offence under the Public Interest Disclosure Act 2010 for a person to intentionally give false or misleading information intended to be acted upon as a PID. The maximum penalty is 2 years imprisonment.
For employees such action may also be a breach of the Code of Conduct for the Queensland Public Service. Where it is established that the discloser is not acting in good faith, or he or she has intentionally made a false report (including where the allegation has been made maliciously, vexatiously or without any basis), then he or she may be subjected to a disciplinary process. False allegations of corrupt conduct may be investigated by the Crime and Corruption Commission.
Employees have an obligation to make a PID about matters of concern to them. Employees who are subjects of allegations do not have any grievance or appeal rights, providing the employee making the PID is acting in good faith and the information is not intentionally false or misleading.
However, an employee who is the subject of an administrative decision or action is entitled to lodge a complaint should they feel that the administrative decision is unfair or biased.
If an employee considers that the issue is not resolved following the finalisation of the complaints process, they may be able to lodge an appeal with the Appeals Officer pursuant to the Appeals Directive. An employee considering an appeal should refer to the Appeals Directive as issued by the Public Service Commission and may seek further information on appeal rights from the Public Service Commission website www.psc.qld.gov.au or the Public Service Commission.
Section 65 of the Public Interest Disclosure Act 2010 makes it an offence for a person to make a record of, or intentionally or recklessly disclose confidential information received in the administration of the Act to anyone, except where authorised to do so by the Act.
Any employee receiving a PID should be aware that any statements and correspondence in relation to the matter should be regarded as strictly confidential and should not be discussed with anyone unrelated to the matter.
All documentation relating to a PID must be stored in a separate confidential file, secured in a locked area. No details are to be placed on personal files. If an employee is appointed to another Department/Agency the file remains the property of LAQ.
This policy should be read in conjunction with the following:-
LAQ Employee Complaints Policy and Procedure;
LAQ Complaints Procedure;
Public Service Commission Directive – Managing Employee Complaints;
Public Service Commission Directive - Appeals; and
Code of Conduct for the Queensland Public Service.
For further information, LAQ employees should contact:
Information can also be obtained from the Office of the Ombudsman website.