Whistleblowing and Public Interest Disclosures Policy

1. Purpose

1.1 The Whistleblowing and Public Interest Disclosures Policy (the policy):

1. implements the university’s obligations under the Public Interest Disclosures Act 2022 (NSW), and
2. supports the university’s speak up culture (refer Speak up at UTS).

1.2 Anyone who suspects serious wrongdoing is encouraged to make a report or a disclosure to UTS.

1.3 This policy is supported by the Public Interest Disclosures Management Procedure (the procedure).

2. Scope

2.1 This policy applies to public officials as defined in the Public Interest Disclosures Act 2022 (NSW) (PID Act). At UTS this includes (but is not limited to): 

1. staff and affiliates of UTS
2. staff and affiliates of a UTS controlled entity, and
3. staff of any entity contracted to perform services on behalf of UTS.

2.2 This policy also applies to:

1. any person involved in the management of a public interest disclosure at UTS, and
2. any other person who reports wrongdoing that is subsequently deemed a public interest disclosure in line with this policy.

2.3 This policy may work in conjunction with other UTS policies related to disclosure and reporting.

2.4 Where a disclosure relates to wrongdoing by another agency associated with UTS, including an associated entity of UTS, UTS will work in collaboration with the other agency as prescribed by the PID Act.

3. Principles

3.1 UTS demonstrates its commitment to a culture of trust, integrity and accountability by:

1. fostering high ethical standards (refer Conduct, behaviour and integrity at Policy by classification)
2. ensuring that staff and affiliates are aware of how to report serious wrongdoing
3. protecting people who report serious wrongdoing from detrimental action
4. ensuring that reports of alleged serious wrongdoing are investigated in accordance with the requirements of the PID Act and the principles of confidentiality and procedural fairness
5. ensuring staff have access to training, resources and guidance on identifying and managing fraud and corruption (refer Fraud and Corruption Prevention Policy) and for supervisors and disclosure officers on how to meet their responsibilities under the PID Act, and 
6. implementing organisational reform in response to incidents of wrongdoing to appropriately respond to and further minimise instances of serious wrongdoing.

4. Policy statements

What is a public interest disclosure?

4.1 A public interest disclosure is a form of whistleblowing. Specifically, it is a report of serious wrongdoing about an agency by a public official under the Public Interest Disclosures Act 2022 (NSW) (PID Act). 

4.2 The PID Act specifies and defines 3 categories of public interest disclosure (covered by and defined in this policy (refer Definitions)):

1. voluntary
2. mandatory, and
3. witness.

4.3 If a complaint about serious wrongdoing is made to UTS via another policy or process, UTS will consider whether the complaint meets the requirements of a public interest disclosure and, where appropriate, will manage the complaint in line with this policy (in collaboration with other relevant policies as required). 

4.4 Complaints that do not constitute a public interest disclosure will be managed via the relevant complaints or reporting policy (refer Speak up at UTS for other policies and reporting processes). 

4.5 Disclosures that relate to the following do not qualify as public interest disclosures:

1. a disagreement with a government decision, a government policy, or other governance document
2. a complaint about the employment or former employment of an individual (and relates to or affects only the individual)
3. a disagreement with reasonable management action.

Voluntary public interest disclosures

4.6 Most public interest disclosures at UTS will be voluntary. A voluntary public interest disclosure has the following 5 features:

1. it is made by a public official
2. it is made to a person who can receive a voluntary public interest disclosure (refer How to report serious wrongdoing)
3. the public official honestly and reasonably believes that the information they are providing shows, or tends to show, serious wrongdoing (refer Definitions)
4. the report is made verbally or in writing, and
5. the report is made voluntarily.

Who can report serious wrongdoing?

4.7 All public officials can report serious wrongdoing (or suspected serious wrongdoing) to UTS. Where the report is deemed a public interest disclosure, the public official will be afforded protections under the PID Act (refer Protections under the PID Act). 

4.8 Any other person may report serious wrongdoing committed by the university, its staff, students or affiliates for consideration as a public interest disclosure. The report will either be deemed a public interest disclosure and managed under this policy (refer Wrongdoing that is deemed a public interest disclosure) or will be managed via another complaints or reporting process.

How to report serious wrongdoing

4.9 In line with the PID Act, a disclosure may be made to one or more of the following:

1. the Vice-Chancellor (as the head of the agency)
2. a supervisor
3. a UTS disclosure officer (refer Appendix 1).

4.10 Disclosures may be made:

1. verbally, via a private conversation or discussion
2. in writing, via an email or a letter, or
3. anonymously, via an email, letter or phone call.

4.11 Public officials do not need to identify what category of serious wrongdoing is being reported, but should provide as much information as possible, including, but not limited to:

1. the date, time and location of key events associated with the suspected wrongdoing
2. names of person(s) involved in the suspected wrongdoing, including their role, title and how they are involved
3. the relationship to the person(s) involved (for example, a close colleague, associate, manager or supervisor)
4. an outline of the matter being reported
5. how the matter arose or came to light
6. any possible witnesses, and
7. other information that supports the disclosure.

4.12 A public interest disclosure may also be made to another agency including to an integrity agency (refer Appendix 2), a different public service agency or university. Disclosures may also be made to a minister, a member of a minister’s staff, a member of parliament or a journalist (in line with the limitations outlined in the PID Act).

4.13 Makers of anonymous disclosures will still be protected under the PID Act, noting that the nature of anonymity may impact ongoing communications, the extent to which the matter can be investigated and/or the extent to which additional support may be provided. 

Wrongdoing that is deemed a public interest disclosure

4.14 In line with the PID Act, the Vice-Chancellor may deem a report of serious wrongdoing to be a public interest disclosure either at the request of the maker of the disclosure or by the Vice-Chancellor’s own judgement.

4.15 Where a report is deemed to be a public interest disclosure, the determination:

1. takes immediate effect from the time of the decision
2. must be communicated in writing to the maker of the disclosure and the relevant disclosure officer
3. must be managed as a public interest disclosure in line with this policy (including provision of protections), and
4. may be revoked only in line with the PID Act.

Mandatory or witness public interest disclosures

4.16 UTS will provide the appropriate protections for makers of mandatory or witness disclosures (refer Definitions) in line with the PID Act and this policy, including:

1. protection from detrimental action and the rights to compensation where detrimental action is proven to have had occurred
2. immunity from civil and criminal liability, and
3. other protections authorised by the Attorney-General in line with the PID Act.

4.17 Disclosure officers must ensure appropriate communication and protections are provided to the maker of the disclosure in line with this policy and the procedure (refer also guidance at NSW Ombudsman: Public Interest Disclosures Act 2022). 

Protections under the PID Act

4.18 Makers of a public interest disclosure will be provided with special protections under the PID Act (refer NSW Ombudsman: Public Interest Disclosures Act 2022). This includes the following: 

1. Protection from detrimental action: It is a criminal offence to take detrimental action against a person for making, or intending to make, a public interest disclosure. Compensation may be sought.
2. Immunity from civil and criminal liability: For example, a maker of a disclosure who is subject to a confidentiality agreement for their work activity cannot be disciplined, sued or criminally charged for breaching confidentiality.
3. Privacy and confidentiality (refer Privacy and confidentiality).
4. Protection from liability for own past conduct: For example, if a person discloses their own wrongdoing or misconduct while making a voluntary public interest disclosure, the Attorney-General, on application by an integrity agency, may give them an undertaking that a disclosure of their own past conduct will not be used against them. 

4.19 UTS will take proactive steps to assess and minimise the risk of detrimental action against the maker of a disclosure as outlined in the procedure.

4.20 Anyone involved in the management and investigation of a public interest disclosure must be made aware of the protections under the PID Act.

Managing public interest disclosures

4.21 Supervisors who receive a voluntary public interest disclosure must ensure the disclosure is referred to a disclosure officer for investigation (refer Appendix 1).

4.22 Where a disclosure is made verbally, the supervisor or disclosure officer must immediately make a written record of the disclosure to cover the information outlined in statement 4.11 (refer How to report serious wrongdoing). If possible, this should be verified with the person making the disclosure.

4.23 Disclosure officers must acknowledge the receipt of the disclosure in line with the procedure and refer the matter to a policy contact (refer Roles and responsibilities) for guidance and advice on managing the disclosure, including but not limited to:

1. whether a report qualifies as a public interest disclosure
2. available protections
3. appropriate investigative steps
4. ongoing communication with the maker of the disclosure, and
5. referrals to and seeking advice from the appropriate integrity agency (where required).

4.24 Investigations undertaken by UTS, or by another individual or agency on behalf of UTS, must meet the requirements of the PID Act and comply with this policy and the procedure. Refer Annual returns and reports to the NSW Ombudsman for investigation decisions that must reported.

Investigation report approval

4.25 An investigation report containing findings, outcomes and recommended corrective actions must be provided by the disclosure officer to the Vice-Chancellor.

4.26 The Vice-Chancellor will have final approval of the report and any recommended corrective actions (refer the procedure). The Vice-Chancellor may: 

1. approve the report and its recommendations
2. recommend changes to the report or further investigation for re-submission by a specified timeline, or
3. determine that the disclosure is not a voluntary public interest disclosure and either refer for management in another way or dismiss the report.

4.27 The maker of the disclosure and the NSW Ombudsman must be informed, in writing, of the outcomes of the investigation and any corrective actions taken. UTS may be obliged to keep some details confidential to meet other legal obligations. 

Internal review of decision

4.28 Under the PID Act, the maker of a disclosure may request an internal review where it is determined that:

1. the disclosure does not qualify as a public interest disclosure
2. the disclosure will not be investigated
3. an investigation will be ended.

4.29 A request for internal review must:

1. be made to the Vice-Chancellor, in writing, in 28 days of the maker of the disclosure being informed of the university’s decision, and
2. state the reasons why the maker of the disclosure considers the university’s decision to be incorrect.

4.30 In line with the PID Act, the Vice-Chancellor will appoint an individual (normally a member of staff but may also be an external person) who was not substantially involved in the original decision or in dealing with the disclosure to act as a reviewer.

4.31 The reviewer may either uphold the university’s decision or decide that the disclosure be managed as a voluntary public interest disclosure. UTS will act in accordance with the reviewer’s decision.

Voluntary dispute resolution

4.32 If a dispute arises between UTS and the maker of the disclosure, UTS may request that the NSW Ombudsman conciliate the dispute. Matters that are eligible for conciliation by the NSW Ombudsman include disputes relating to:

1. whether a disclosure is a public interest disclosure
2. whether a disclosure constitutes serious wrongdoing as defined in the PID Act and this policy, or
3. conduct that constitutes or may constitute detrimental action.

4.33 Conciliation is a voluntary process and will only be suitable where UTS and the maker of the disclosure are willing to resolve the dispute.

Detrimental action

4.34 Anyone subject to detrimental action for making or intending to make a public interest disclosure should, as soon as possible, report such action to a disclosure officer or, where this is not possible, the Vice-Chancellor. 

4.35 The disclosure officer or Vice-Chancellor will:

1. initiate an internal investigation into the alleged unfair treatment
2. take all reasonable steps to protect the maker of the disclosure (including updating or adjusting the protection plan (refer the procedure)) 
3. take all reasonable steps to stop the detrimental action, and
4. notify the NSW Ombudsman about the allegation of a detrimental action offence being committed.

4.36 Makers of a disclosure may also (or alternatively) refer any detrimental action to an integrity agency for investigation (refer Appendix 2).

4.37 Detrimental action under the PID Act does not include:

1. lawful action taken as part of an investigation into serious wrongdoing or other misconduct
2. lawful reporting or publication of a finding of serious wrongdoing or other misconduct, or the lawful making of adverse comment, resulting from an investigation, or
3. prosecution of a person for a criminal offence.

4.38 Evidence of detrimental action will be treated as a breach of this policy and may be referred to the appropriate agency (the Commissioner of Police, the Independent Commission Against Corruption or the Law Enforcement Conduct Commission, whichever is applicable) in accordance with the PID Act. 

Privacy and confidentiality

4.39 Information that may identify the maker of a disclosure must not be disclosed by staff, affiliates or UTS. Steps to maintain confidentiality must be outlined in the disclosure protection plan (refer the procedure).

4.40 UTS will maintain the confidentiality of the maker of a disclosure in line with PID Act (refer the procedure). Any decision to provide identifying information will be taken only: 

1. when necessary and allowable in line with the PID Act, and
2. where appropriate protections have been put in place for the maker of the disclosure.

Records management

4.41 Full and accurate records of all information relating to public interest disclosures and the implementation of the PID Act at UTS must be managed in line with the Records Management Policy and the Privacy Policy (particularly for personal information). 

4.42 Disclosure officers must ensure that external investigators are made aware of UTS records management requirements.

Annual returns and reports to the NSW Ombudsman

4.43 As required by the PID Act, UTS will provide an annual return to the NSW Ombudsman for each 12-month period ending on 30 June unless otherwise directed. The annual return must outline:

1. voluntary public interest disclosures received
2. action taken to manage these disclosures, and
3. measures taken by UTS to promote a speak up culture.

4.44 In addition to the annual return, the Vice-Chancellor will report to the NSW Ombudsman, with written rationale, any decision:

1. to undertake an investigation into a public interest disclosure
2. not to further investigate the report of serious wrongdoing
3. to end an investigation or action (without completing the investigation or following receipt of a report), or
4. to refer the disclosure elsewhere (to an integrity agency or other external entity for investigation).

Policy compliance and review

4.45 The annual return will be provided to the Office of General Counsel (OGC) for review and input. The OGC will:

1. ensure that compliance requirements under the PID Act are being met
2. recommend any required updates to this policy, the procedure or any other associated process to the policy’s roles and responsibilities
3. recommend any required updates to the Fraud and Corruption Prevention Policy, and
4. escalate any issues to the Audit and Risk Committee in consultation with the policy contacts.

Policy breaches

4.46 It is an offence under the PID Act to:

1. wilfully make false or misleading statements when making a public interest disclosure
2. prevent or influence someone against making a public interest disclosure
3. take detrimental action against another person for making or attempting to make a public interest disclosure
4. deliberately fail to comply with an order relating to the protection of a person making a public interest disclosure.

4.47 It is a breach of this policy and the Code of Conduct to make disclosures that are vexatious or made solely or substantially with the motive of avoiding disciplinary action. Such reports or disclosures may result in:

1. action under the Code of Conduct and Enterprise agreements
2. infringement of the PID Act, and/or
3. other penalties as determined by external authorities in line with other legislation or policies.

4.48 Any person who takes, or threatens to take, detrimental action against a person in reprisal for a disclosure or potential disclosure is liable to disciplinary action under the PID Act, the Code of Conduct and Enterprise agreements. 

4.49 Privacy breaches should be referred to the UTS Privacy Officer (refer Privacy contacts).

5. Roles and responsibilities

5.1 Policy owner: The Vice-Chancellor is responsible for policy enforcement and compliance, ensuring that its principles and statements are observed to foster a speak up culture and to ensure compliance with the PID Act. In line with the PID Act, the Vice-Chancellor may delegate some responsibilities. The Vice-Chancellor also has the authority to:

1. receive public interest disclosures
2. determine that a disclosure does not meet the requirements of a public interest disclosure as outlined in the PID Act
3. receive investigation reports on the findings of any investigation and any recommendations for corrective actions and, where required, determine what action should be taken (including organisational reform as necessary)
4. determine that an investigation should not proceed or be ended in line with the PID Act
5. make reports as appropriate to the relevant external body, and
6. approve supporting procedures for this policy.

5.2 Policy contact: The Vice-Chancellor has appointed the following policy contacts:

1. Executive Director, People and Culture
2. General Counsel and Executive Director, Risk and Compliance
3. University Secretary and Director, Governance Support.

The policy contacts are responsible for:

1. the day-to-day implementation of the policy
2. coordinating the management of public interest disclosures, and
3. supporting disclosure officers in developing reports on findings of investigations and making recommendations on possible reforms to the Vice-Chancellor following an investigation.

5.3 Implementation and governance roles:

UTS disclosure officers (refer Appendix 1) are responsible for: 

1. receiving, managing and/or acting on disclosures in accordance with this policy and the Public Interest Disclosures Management Procedure, and 
2. ensuring that matters referred to them by supervisors are recorded, assessed, investigated and reported/referred as necessary.

Supervisors are responsible for:

1. receiving reports from staff and affiliates who they manage, and
2. referring disclosures they receive to a disclosure officer.

Staff and affiliates must:

1. report suspected serious wrongdoing or other misconduct
2. assist in an investigation of serious wrongdoing if asked to do so
3. treat any person dealing with or investigating reports of serious wrongdoing with respect
4. not take detrimental action against any person who has made, intends to make, or is suspected of having made a public interest disclosure.

The maker of a disclosure must assist in an investigation of serious wrongdoing if asked to do so as part of an internal or external investigation.

6. Definitions

The following definitions apply for this policy and all associated procedures. Definitions in the singular also include the plural meaning of the word.

Affiliate is defined in the Code of Conduct.

Detrimental action is defined in the Public Interest Disclosures Act 2022 (NSW) and includes but is not limited to disadvantage to a person including but not limited to actual or implied:

1. injury, damage or loss
2. damage to the person’s property
3. damage to the person’s reputation
4. intimidation, bullying or harassment
5. unfavourable treatment in relation to the person’s career, profession, employment or trade
6. discrimination, prejudice or adverse treatment, whether in relation to employment or otherwise
7. disciplinary proceedings or disciplinary action.

Disclosure officer means staff responsible for receiving voluntary public interest disclosures on behalf of UTS under the requirements of the Public Interest Disclosures Act 2022 (NSW). This list is approved by the Vice-Chancellor and published as Appendix 1 of this policy.

Integrity agency is defined in the Public Interest Disclosures Act 2022 (NSW) and detailed in Appendix 2 of this policy.

Maker of a disclosure means any person, including a public official, who makes a disclosure that is, or is deemed to be, a public interest disclosure in line with this policy.

Public interest disclosure (also PID or disclosure) is defined in the Public Interest Disclosures Act 2022 (NSW) and summarised in this policy at What is a public interest disclosure? The 3 categories of public interest disclosure are summarised as follows:

1. A voluntary PID is a disclosure about serious wrongdoing made by a public official based on an honest belief on reasonable grounds that serious wrongdoing has occurred. The disclosure is made to a person eligible to receive a public interest disclosure (refer statement 4.9). The Vice-Chancellor may deem a disclosure to be a voluntary PID even if the person making the disclosure is not a public official as outlined in this policy. 
2. A mandatory PID is a disclosure about serious wrongdoing made by a public official while meeting the normal requirements of their role or under a statutory or other legal obligation. This includes the responsibility of supervisors to ensure disclosures they receive are submitted to a disclosure officer.
3. A witness PID means a disclosure of information that is provided as part of an investigation into serious wrongdoing (whether or not the investigation relates to a voluntary public interest disclosure or another investigation). 

Public official is defined in statement 2.1 of this policy.

Reasonable management action is defined in the Public Interest Disclosures Act 2022 (NSW) and includes but is not limited to:

1. workplanning, performance review and work appraisal and associated actions
2. reasonable decision to investigate serious wrongdoing or other misconduct, and associated disciplinary action
3. contract review or renewal and associated actions.

Serious maladministration is defined in the Public Interest Disclosures Act 2022 (NSW) and means conduct (non-trivial) of an agency or a public official relating to a matter or administration that is unlawful, unreasonable, unjust, oppressive, improperly discriminatory or based wholly or partly on improper motives.

Serious wrongdoing is defined in the Public Interest Disclosures Act 2022 (NSW) and includes:

1. corrupt conduct as meant by the Independent Commission Against Corruption Act 1988 (NSW) (for example, a public official offering, receiving or accepting a bribe)
2. fraudulent activity (for example, false insurance claims)
3. contravention of government information (for example, destroying, concealing or altering records to prevent them from being released under a Government Information (Public Access) Act 2009 (NSW) (GIPA Act) application, this being a non-trivial failure by an agency or public official to exercise their functions in accordance with the GIPA Act or the State Records Act 1998 (NSW) (refer Records Management Policy)) 
4. serious maladministration (for example, systemically failing to comply with proper recruitment processes when hiring staff)
5. contravention of privacy (for example, unlawfully accessing a person’s personal information on an agency’s database, this being a non-trivial failure by an agency or public official to exercise their functions in accordance with the NSW privacy acts (refer Privacy Policy)), and/or
6. a serious or substantial waste of public money (for example, not following a competitive tendering process when contracting with entities to undertake government work)

Staff is defined in the Code of Conduct.

Supervisor is defined in the Code of Conduct. For the purposes of this policy, a supervisor includes a ‘manager of a public official’ or maker of a disclosure as defined in section 15 of the Public Interest Disclosures Act 2022 (NSW). 

Student is defined in the Student Rights and Responsibilities Policy.

Whistleblowing is a commonly used term to describe the act of reporting misconduct, serious wrongdoing or illegal activity that has occurred in an organisation by a person in the organisation. At UTS, the term ‘public interest disclosure’ is used to refer to a specific form of whistleblowing managed under the Public Interest Disclosures Act 2022 (NSW) (refer also Whistleblowing).