The purpose of this policy and procedure is to provide information about:
- Matters that may be disclosed as a public interest disclosure (PID) under the Public Interest Disclosure Act 2010 (“the Act”);
- The procedure and officials or persons to whom disclosers may make a PID to receive protection under the Act;
- The support and protection available to people making a PID and to employees who are the subject of a PID;
- Responsibilities with regard to confidentiality and the fair treatment of people who make, or employees who are the subject of, a PID; and
- Board employees’ responsibility to report suspected wrongdoing under the Code of Conduct for the Surveyors Board of Queensland.
The policy and procedure also demonstrate the Board’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 the Board’s operations and decisions.
Public Interest Disclosure Act 2010
Public Sector Ethics Act 1994
Crime and Misconduct Act 2001
Code of Conduct for the Queensland Public Service
Public Service Commission Directive – Managing Employee Complaints Public Service Commission Directive – Appeals
Public Service Commission Standard No.1 – Public Interest Disclosure Standard
This Board policy and procedure applies to all:
- Board members
- permanent and temporary employees
This Board policy and procedure does not apply to:
- contractors and volunteers.
Contractors and volunteers are not classed as Board employees, however, they can still make a public interest disclosure as a member of the public, see sections 7 and 8.1.2.
4. DEFINITIONS / GLOSSARY OF TERMS
Administrative Action means any action about a matter of administration, including, for example—
- a decision and an act; and
- a failure to make a decision or do an act, including a failure to provide a written statement of reasons for a decision; and
- the formulation of a proposal or intention; and
- the making of a recommendation, including a recommendation made to a Minister; and
- an action taken because of a recommendation made to a Minister.
However, this does not include an operational action of a police officer or of an officer of the Crime and Misconduct Commission.
Appropriate Person means one of a defined list of people to whom a PID may be made (refer to 9. Procedure).
Detriment includes –
(a) personal injury or prejudice to safety; and
(b) property damage or loss; and
(c) intimidation or harassment; and
(d) adverse discrimination, disadvantage or adverse treatment about career,
profession, employment, trade or business; and
(e) financial loss; and
(f) damage to reputation, including, for example, personal, professional or business
Disability means a permanent disability or one likely to be permanent –
(a) that is attributable to an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment or a combination of impairments; and
(b) that results in –
(i) a substantial reduction of the person’s capacity for communication, social
interaction, learning or mobility; and
(ii) the person needing support.
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 an administrative action that:
- was taken contrary to law; or
- was unreasonable, unjust, oppressive, or improperly discriminatory; or
- was unreasonable, unjust, oppressive, or improperly discriminatory in the particular circumstances even though it is within the law; or
- was taken for an improper purpose, or on irrelevant grounds, or having regard to irrelevant considerations; or
- was an action for which reasons should have been given, but were not given; or
- was based wholly or partly on a mistake of law or fact; or
- was wrong.
Misconduct is inappropriate or improper conduct in an official capacity or inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Official misconduct is conduct concerned with the performance of an officer’s duties that is not honest or impartial, a breach of the trust placed in the person, or a misuse of information or material acquired through the officer’s position and that could, if proved, be–
(a) a criminal offence; or
(b) a disciplinary breach providing reasonable grounds for terminating the person’s
services, if the person is or was the holder of an appointment.
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 monies within the meaning of the Financial Accountability Act 2009.
Public Health or Safety includes the health or safety of persons:
- under lawful care or control; or
- using community facilities or services provided by the public or private sector; or
- in employment workplaces.
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,
substantial means “of a significant or considerable degree”. It must be more than trivial or minimal and have some weight or importance. Specific means “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.
The Executive Officer is responsible for:
- Creating an ethical workplace culture where employees report suspected wrongdoing when they become aware of it and are supported when they do so. (Code of Conduct for the Queensland Public Service);
- Ensuring reasonable procedures are in place to deal with a PID and that those procedures are published to enable members of the public and employees to access them (Public Interest Disclosure Act 2010);
- Ensuring that PIDs are properly assessed, investigated and dealt with, including appropriate action being taken in relation to any wrongdoing in a PID (Public Interest Disclosure Act 2010);
- Ensuring that employees making a PID receive support and protection from reprisal (Public Interest Disclosure Act 2010);
- Ensuring that all legislative obligations in relation to reporting and investigation are met (Public Interest Disclosure Act 2010);
- Ensuring that all matters involving suspected official misconduct are referred to the Crime and Misconduct Commission (Crime and Misconduct Act 2001).
- Ensuring employees are aware of these procedures and the support and protection that is provided to employees who make a PID and for those employees who are the subject of a PID;
- Ensuring employees are aware of the protection offered to members of the public as a protected discloser when making a PID to the Board under the Public Interest Disclosure Act 2010;
- Ensuring approved recommendations arising from reports investigating information provided as a PID are acted upon appropriately; and
- Creating an ethical workplace culture by leading by example.
- Providing information concerning PIDs to the Chairperson and the Board as required.
- Monitoring the workplace for any signs of reprisal against an employee making a PID and taking reasonable action to protect them, and ensuring an employee, who is the subject of a PID, receives fair treatment and has access to support and assistance.
- Arranging for investigations of matters alleged through a PID to be undertaken.
- Ensuring that where allegations made in a PID are substantiated, recommendations from the investigation are implemented as soon as practicable, with effective systems and processes put in place to reduce the likelihood of recurrence.
The Board is responsible for:
- Analysing tabled data to identify trends and areas of concern and recommending strategies to address these issues; and
- Ensuring strategies are in place within the Board to promote awareness about PIDs, ethical behaviour and decision-making and misconduct prevention for employees.
Employees are responsible for:
- Being aware of and complying with all relevant whole-of-Government and Board policies and procedures, including the Code of Conduct for the Queensland Public Service;
- Attending training in ethical decision-making, Code of Conduct for the Queensland Public Service and misconduct prevention when offered;
- Being aware of the possibility that official misconduct may exist in the workplace and reporting any concerns to their manager or supervisor or an appropriate official in accordance with this policy and procedure; and
- Creating an ethical culture by leading by example.
6. POLICY STATEMENT
Encouraging people to report their concerns about suspected wrongdoing will assist in creating improved transparency, accountability and openness in decisions and actions. It will also enable corrective action to be taken where serious problems are found. The Code of Conduct for the Queensland Public Service requires employees to report any concerns about wrongdoing in their workplace.
The Board will ensure that all public interest disclosures received are properly assessed and dealt with, including appropriate action being taken in relation to any wrongdoing disclosed in a PID.
A person who makes a PID in accordance with the Public Interest Disclosure Act 2010 and this Policy and Procedure will be given protected discloser status. The Board will put in place all reasonable measures to ensure that the discloser is not subject to reprisal action. The Board has zero tolerance towards reprisals against a person making a PID. The Board will ensure all people involved in PIDs (as discloser or subject) are offered an appropriate level of support and case management. Action will be taken to ensure, to the extent possible, that the discloser’s identity and details of the disclosure remain confidential.
Disclosers who intentionally give false or misleading information as a PID commit a criminal offence under the Public Interest Disclosure Act 2010.
1. The Board will ensure administrative compliance with the Public Interest Disclosure Act 2010.
2. Board employees or members may make a PID about:
- Conduct of another person that could be Official Misconduct;
- Conduct of another person that could be maladministration that adversely affects a person’s interests in a substantial and specific way;
- A substantial misuse of public resources (other than an alleged misuse based on mere disagreement over policy that may properly be adopted about amounts, purposes or priorities of expenditure);
- Substantial and specific danger to public health or safety;
- Substantial and specific danger to the health or safety of a person; or
- A reprisal because of a belief that a person has made, or intends to make a PID.
3. Members of the public may make a PID about:
- A substantial and specific danger to the health or safety of a person; or
- A reprisal because of a belief that a person has made or intends to make a PID.
4. A Board employee who receives information as a PID must refer the matter to the appropriate Executive Officer regardless of whether they believe the PID has
5. All information disclosed will be assessed, appropriately investigated if required and
handled with due process.
6. Allegations of official misconduct must be reported to the Crime and Misconduct
Commission through the Executive Officer.
7. To the extent reasonably possible, the Board will provide protection from reprisal and detrimental treatment of people who make a PID, and will provide support and fair treatment to employees who may be the subject of an allegation.
8. A risk assessment of the likelihood of reprisal action will be undertaken for each disclosing employee.
9. A case management strategy will be developed and implemented by the Executive Officer to mitigate risks of reprisal identified through the risk assessment process.
10. Support and confidential treatment will be provided for people who make a PID of a matter in accordance with the approved Board procedure and the Public Interest Disclosure Act 2010, and for employees who may be the subject of an allegation.
11. People who make a disclosure will be provided reasonable information in writing about the action taken on their disclosure and the results.
8.1. Making a Public Interest Disclosure
8.1.1. Board employees
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.
Board members or employees may make a PID to:
- Executive Officer
- Crime and Misconduct Commission;
- A member of the Legislative Assembly;
- A Chief Judicial Officer of the relevant court or tribunal (if the disclosure relates to a judicial officer) or
Board employees may also make a PID to:
- the Chairperson
- a Board member
An employee or Board member 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.
8.1.2. Members of the public
Members of the public may make a PID on matters listed in Section 8 (3).
Under the Public Interest Disclosure Act 2010, The Surveyors Board of Queensland is the appropriate agency to receive and deal with PIDs alleging substantial and specific danger to the environment.
Members of the public may make a PID to the Chairman, a Board member, Executive Officer, the Crime and Misconduct Commission, a Member of the Legislative Assembly or to any Board employee responsible for receiving the type of information being disclosed.
When a Board member or employee receives a PID from a member of the public, they must treat the matter seriously and confidentially and refer it to the Chairperson or Executive Officer.
8.1.3. Issues regarding disclosures
Under the Public Interest Disclosure Act 2010, a person may make a PID:
- If they have an honest belief, on reasonable grounds, that the information they
have tends to show the conduct or other matter.
- If the information they have tends to show the conduct or other matter being alleged, regardless of whether or not they honestly believe the information tends to show the conduct or other matter.
The evidence does not have to be admissible in court.
A disclosure does not have to identify a particular person.
A disclosure may be about a matter that occurred before the commencement of the Public Interest Disclosure Act 2010.
A disclosure may be about a matter that happened, is happening or the discloser reasonably believes is going to happen.
It is not necessary to have documented evidence. It is the responsibility of the investigating officer to determine if wrongdoing has occurred.
8.1.4. Anonymous disclosures
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.
8.1.5. Making disclosures to journalists
Disclosure to a journalist is an avenue of last resort. An employee or Board member may only make a disclosure to a journalist when they have made a PID using the approved Board procedure, and the entity to which the disclosure was made or, if the disclosure was referred to another entity, the entity to which the disclosure was referred—
- decided not to investigate or deal with the disclosure; or
- investigated the disclosure but did not recommend the taking of any action in relation to the disclosure; or
- did not notify the person, within 6 months after the date the disclosure was made, whether or not the disclosure was to be investigated or dealt with.
In these circumstances only, will the disclosing employee or Board member retain protected status. The person may make a disclosure of substantially the same information that was made in the original PID.
8.2. After a PID has been made
8.2.1. All PIDs received must be referred as soon as possible to the Executive Officer or Board chairperson as appropriate, to determine the 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 suspected official misconduct are referred to the CMC (s38, Crime and Misconduct Act 2001) for assessment and the Board is advised accordingly. In most instances, following assessment, the CMC returns the matter to the Board to be dealt with. Only the most serious and/or complex disclosures, and those where it is necessary to promote public confidence, are dealt with directly by the CMC.
Code of Conduct breaches are referred to the Executive Officer.
8.2.2. The Board may decide to take no further action on a PID when:
- the subject of the PID has already been dealt with by another appropriate process;
- the matter raised should be dealt with by another appropriate process;
- the age of the information makes it impractical to investigate the matter;
- the information is considered too trivial to warrant investigation; or
- the entity that has jurisdiction to investigate the matter has notified the Board that investigation is not warranted.
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.
8.3. Protection of employees
The Board 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.
- Protected disclosers incur no criminal or civil liability (e.g. defamation) for PIDs made appropriately.
- It is a criminal offence for a public officer to take reprisal action against a protected discloser.
- The CMC can investigate suspected reprisals against public sector employees. 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 Board’s final decision must be impartial and based on the facts. To the best of its ability, the Board will also support members of the public who make PIDs through providing regular contact and advice throughout the process.
8.3.1. When employees are NOT protected
The Public Interest Disclosure Act 2010 does not provide for protection of a person who:
- fails to follow the correct disclosure process
- intentionally gives false or misleading information
- makes a PID directly to or through the media rather than through the approved process (e.g. making a disclosure to a journalist before following due departmental process).
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 Executive Officer or Board chairperson as appropriate.
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 the Board, as employer, with either their complaint in a commission or their claim in court. The Board 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 discloser occurring.
8.3.3. Reasonable management action
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 must be in accordance with Board policies and processes, including procedural fairness principles.
Examples of reasonable management action are given below:
Scenario 1: The employment contract of an employee who made a PID 6 months previously and was granted protected status is due to expire. Management has decided not to offer another contract as the project on which the employee was working is substantially completed and there is no further budget allocation available. Other employees have the capacity and skills to complete the remainder of the project. In this instance, the decision not to offer another employment contract to the employee is NOT reprisal action but reasonable management action unrelated to the fact the employee made a PID.
Scenario 2: The supervisor of an employee who made a PID 12 months previously has noticed the work performance of that employee is not satisfactory. Deadlines are not being met and the quality of the work is poor with the supervisor having to correct many errors. The supervisor requests the employee to attend a meeting with him to discuss the employee’s work performance and explore possible reasons for it (e.g. illness, need for further training, personal concerns). At the meeting, a detailed Achievement & Development Plan is discussed and agreed. The supervisor requests weekly meetings for the next month to discuss work progress. The decision to implement this performance management action was based on the supervisor’s assessment of the employee’s work performance and was not influenced by the employee having made a PID. Therefore it was reasonable management action.
8.4. The investigation
The Executive Officer of the Board will determine whether an investigation is required based on the seriousness of the allegations and any CMC recommendations. After a decision to investigate has been made, a specialist officer will be engaged to undertake the investigation. During this process, all 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 the Board, 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.
An investigation may result in one or more of the following outcomes:
- disciplinary action being commenced
- a recommendation that there be administrative changes
- a recommendation that corruption prevention strategies be developed a criminal charge
- the complaint being dismissed as unsubstantiated.
8.5. After the investigation
The Board 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:
- anybody’s safety; or
- the investigation of an offence or possible offence; or
- necessary confidentiality about an informant’s existence or identity.
9. REPORTING REQUIREMENT
The Board must report to the Public Service Commission (PSC) statistical information about PIDs and any other information requested by the PSC regarding the Board’s performance in relation to the administration of the Public Interest Disclosure Act 2010.
10. FALSE PID AND OFFICIAL MISCONDUCT REPORTS
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 official misconduct may be investigated by the Crime and Misconduct Commission.
11. OTHER RESOURCES AND LINKS
This policy should be read in conjunction with the following: ?Code of Conduct for the Queensland Public Service
12. EMPLOYEE COMPLAINTS AND APPEALS
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 (refer to Public Service Commission (PSC) Directive – Managing Employee Complaints) 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.
13. EFFECTIVE DATE
This policy and procedure is effective from the date of approval at section 17. The policy and procedure applies to all PID allegations received subsequent to the date of approval of this policy.
14. TRANSITIONAL ARRANGEMENTS
PID allegations received and investigations commenced prior to this date and yet to be finalised will be managed in accordance with the provisions of this policy.
15. FURTHER INFORMATION
For further information, Board employees should contact the Chairperson or Executive Officer.
Information can also be obtained from the Public Service Commission’s website.
16. STORAGE OF INFORMATION
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 Board.
New Board policy and procedure
Signed: Murray Fox
Date: 9th June 2011