Public Interest Disclosures Management Procedure

1. Purpose

1.1 The Public Interest Disclosures Management Procedure (the procedure) supports the Whistleblowing and Public Interest Disclosures Policy (the policy), which implements the university’s obligations under the Public Interest Disclosures Act 2022 (NSW) (PID Act).

1.2 This procedure has been developed to: 

1. help UTS disclosure officers receive, assess, manage and investigate public interest disclosures, and 
2. provide makers of a disclosure with an overview of the process for managing public interest disclosures at UTS. 

2. Scope

2.1 This procedure applies to all those under the scope of the policy.

3. Principles

3.1 The principles outlined in the policy apply for this procedure. 

3.2 Anyone involved in a public interest disclosure, and subsequent investigation, must act in line with the Equity, Inclusion and Respect Policy, the Code of Conduct (for staff and affiliates) and the Student Rights and Responsibilities Policy (for students). 

3.3 Makers of a disclosure will, in line with the policy and the PID Act, be: 

1. taken seriously and treated with respect
2. provided with appropriate protection
3. protected from detrimental action by UTS
4. not subject to civil, criminal or administrative liability, and
5. provided with regular updates and information about actions, decisions and outcome.

3.4 Where a public interest disclosure is made anonymously, this may impact UTS’s ability to investigate, provide protection and/or provide normal communications to the maker of a disclosure. 

3.5 A 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 into the public interest disclosure.

4. Procedure statements

Receiving a public interest disclosure

4.1 To be classified as a public interest disclosure, a report of serious wrongdoing must generally be made to a person’s supervisor or to a UTS disclosure officer (refer Appendix 1 of the policy). In line with the policy, a supervisor must forward the disclosure to a disclosure officer for management and investigation. To provide support, and at the request of the maker of a disclosure, supervisors may also accompany the maker of the disclosure to a disclosure officer for management and investigation.

4.2 Disclosure officers can seek advice and guidance from the policy contacts (refer Roles and responsibilities in the policy) in managing the disclosure. Policy contacts will assign a case number and will confirm whether the disclosure has been previously received and documented by a supervisor or a disclosure officer.

4.3 The disclosure officer must acknowledge as soon as possible (and no longer than 40 days after) receipt of the disclosure in writing. The maker of the disclosure will be provided with the following information:

1. that an initial assessment will be undertaken to confirm whether or not the report constitutes a voluntary public interest disclosure
2. guidance on the core concepts of the PID Act (available at NSW Ombudsman: Public Interest Disclosures Act 2022)
3. a copy of the policy and this procedure
4. information on available protections (refer Appendix 1 for an overview of protections under the PID Act), supports and any immediately identified risks
5. the name and contact information of the disclosure officer, or other designated contact person, and
6. next steps, including the possibility that the report will be referred to another agency and an indicative timeline (where possible).

4.4 The disclosure officer will normally be the point of contact for the maker of the disclosure throughout the investigation process.

Initial assessment

4.5 An initial assessment is made by the disclosure officer to ensure the report qualifies as a voluntary public interest disclosure (refer NSW Ombudsman: Public Interest Disclosures Act 2022). The disclosure officer assesses whether:

1. it meets the criteria listed in statement 4.6 of the policy
2. the disclosure or report shows or tends to show serious wrongdoing, and
3. the disclosure is not about a disagreement of government or university policy, or a complaint relating to the maker's employment.

4.6 Where it is determined that the disclosure meets the criteria for a voluntary public interest disclosure (hereafter public interest disclosure), the disclosure officer must work with the policy contact to:

1. communicate with the maker of the disclosure
2. initiate an investigation, and
3. provide appropriate protections to the maker of the disclosure.

4.7 Where it is determined that the disclosure does not meet the criteria for a public interest disclosure, the disclosure:

1. may be submitted to the Vice-Chancellor for consideration as a deemed public interest disclosure (refer the policy)
2. may be referred as a complaint (refer Staff Complaints Policy and Student Complaints Policy) for consideration and appropriate action 
3. may be managed under separate legislation or a different policy (refer Speak up at UTS), or
4. will not be investigated. 

4.8 Following the initial assessment, the disclosure officer will inform the maker of the disclosure:

1. whether the report of serious wrongdoing will be investigated 
2. whether this will be managed internally or by another agency (with details of the referral)
3. reasons for the decision to investigate internally, not to investigate or refer to another agency
4. that this decision will also be reported to the NSW Ombudsman, and
5. the protections that will be provided. 

Managing and investigating a public interest disclosure 

4.9 Investigations will be undertaken by the disclosure officer or an internal or external investigator (with appropriate expertise). Guidance on conducting internal investigations is available from the NSW Independent Commission Against Corruption (refer Factfinder: a guide to conducting internal investigations). The disclosure officer will retain responsibility for the investigation report and for communicating with the maker of the disclosure at least every 3 months (or more frequently as may be agreed). 

4.10 A disclosure will be managed by one or more of the following processes:

1. investigating the reported serious wrongdoing 
2. addressing the serious wrongdoing under a separate applicable Act, law, procedure or policy 
3. referring the disclosure to the relevant integrity agency, and/or
4. referring the disclosure to another agency (for example, another company or a UTS entity to which it is determined the disclosure relates).

4.11 As each disclosure will be different, the disclosure officer or investigator (hereafter disclosure officer) should follow the official guidance published by the NSW Ombudsman (refer NSW Ombudsman: Public Interest Disclosures Act 2022) and the advice from the policy contacts (refer Roles and responsibilities in the policy).

4.12 Disclosure officers must ensure they have no actual, potential or perceived conflicts of interest that may inhibit their ability to investigate the disclosure (refer Conflicts of Interest Disclosure Policy). Where a conflict arises, the disclosure officer must notify a policy contact who will assess the conflict and, where necessary, refer the matter to another disclosure officer or investigator.

4.13 The disclosure officer must also notify the insurer as soon as possible (via email to insurance@uts.edu.au) when a public interest disclosure has been verified. Further advice is available from the Manager, Insurance in the Office of General Counsel (refer Insurance (SharePoint)).

4.14 The investigation will seek to determine:

1. whether the reported serious wrongdoing occurred
2. when it occurred
3. who was involved, and
4. who was responsible.

4.15 An investigation plan should be drafted to provide transparency and manage timelines. All evidence must be documented and recorded. Further guidance on investigating a disclosure is available from the NSW Ombudsman (refer NSW Ombudsman: Public Interest Disclosures Act 2022).

4.16 In some circumstances, the reported serious wrongdoing should be referred to an integrity agency or other external agency (for example, reports concerning possible corrupt conduct may need to be reported to the ICAC). The disclosure officer, in consultation with a policy contact, should discuss the possible referral and contact the appropriate external agency to agree an approach. Where such reports are made, no further action will be taken without the further advice of the relevant agency.

4.17 In some situations the investigation may be ended (for example, if it is discovered that the conduct has previously been investigated or there is no evidence). Where it is decided to end an investigation, and to not refer the matter to another agency, the disclosure officer must notify the maker of the disclosure and provide rationale for this decision. This must be reported to the NSW Ombudsman.

4.18 Decisions to refer the report to another agency for investigation, not to investigate or to end an investigation must be communicated to the NSW Ombudsman by the Vice-Chancellor. This must also be documented for inclusion in the annual return (refer the policy).

Support and protections

4.19 Disclosure officers, in line with the policy, must:

1. take reasonable steps to ensure confidentiality is maintained (including use of a case number to limit the use of individual names and limiting the identity to those who are required to know as part of the investigation) (refer Confidentiality management)
2. protect the maker of a disclosure against detrimental action and provide appropriate supports (refer also NSW Ombudsman: Supporting staff involved in PIDs)
3. where possible, keep the maker of a disclosure informed about the specific steps UTS will take as part of the investigation
4. inform anyone involved in a public interest disclosure of any risks that may arise as a result of the disclosure and subsequent investigation (refer Disclosure protection plan)
5. follow the guidance published by the NSW Ombudsman (particularly for dealing with witness and mandatory public interest disclosures)
6. provide access to the Employee Assistance Program or other appropriate counselling support, and
7. allow the maker of the disclosure to have a support person accompany them to any interviews or meetings (refer Definitions).

4.20 Disclosure officers must be sensitive to situations that may arise where other staff, in addition to the maker of a disclosure (including a person who is mentioned in a disclosure), may need to be offered advice, support or protections.

4.21 People who are the subject of a disclosure have the right to be:

1. informed as to the substance of the allegations
2. presumed innocent of the allegations until it is proven otherwise and where necessary, protected from detrimental action while the investigation is underway
3. provided reasonable opportunity to put their case (either verbally or in writing) to those carrying out the investigation before any final determination is made
4. accompanied at any meeting by a representative of the person’s choosing, provided that the person is not a barrister or solicitor in private practice, and
5. formally advised in writing as to the outcome of the investigation, regardless of the outcome.

Disclosure protection plan

4.22 Disclosure officers, in consultation with the Director, Risk, must undertake a risk assessment to determine the nature of the risk posed to the maker of the disclosure, and, where necessary, other individuals involved in the investigation (for example, witnesses, named individuals or supervisors).

4.23 Risk assessments must follow the guidance provided by the NSW Ombudsman and the Risk Management Policy (as appropriate).

4.24 A disclosure protection plan must be created to determine the appropriate risk mitigation strategies and protections (for example, strategies to maintain confidentiality, allocation of leave, work supports, flexible work arrangements, additional counselling supports).

4.25 The disclosure protection plan must be agreed with the maker of the disclosure and reassessed every 3 months to ensure it remains fit for purpose.

Confidentiality management

4.26 UTS will maintain confidentiality where possible in line with the PID Act and the policy. UTS will take all reasonable steps to not unnecessarily disclose information that may identify the maker of the disclosure. This will be included in the disclosure protection plan and may include some of the following strategies:

1. limiting the number of people who are aware of the identity of a maker of a disclosure
2. limiting access to information that could identify the maker of a disclosure
3. informing those who know the identity of the maker of a disclosure that they have a legal obligation to keep the identity confidential
4. ensuring interviews are conducted by a disclosure officer or investigators and will be conducted in private 
5. ensuring only authorised people have access to emails, files or other documentation that contains information about the identity of the maker of a disclosure 
6. determining if anyone is aware of the maker of the disclosure’s identity and, where individuals may have a motive to take detrimental action or impede the progress of the investigation, ensure the necessary protections are in place 
7. informing the maker of the disclosure about the importance of maintaining confidentiality and advising them how best to protect their own identity (for example, by telling them not to discuss their report with other staff), and 
8. where, as part of the investigation or management process, UTS must disclose information that may identify the maker of the disclosure, UTS will still not disclose the actual identity of the maker, unless their consent has been obtained.

4.27 Identifying information will be disclosed only when necessary and in line with the PID Act (with advice from the UTS Privacy Officer as required), where:

1. the person consents in writing to the disclosure
2. the maker of the disclosure is generally known because of their voluntary self-identification 
3. it is reasonably considered necessary to disclose the information to protect a person from detriment
4. it is necessary that the information be disclosed to a person whose interests are affected by the disclosure
5. the information has previously been lawfully published
6. the information must be disclosed to a medical practitioner or psychologist for the purposes of providing medical or psychiatric care, treatment or counselling
7. the information is disclosed for the purposes of proceedings before a court or tribunal
8. the disclosure of the information is necessary to manage the disclosure effectively, or 
9. it is otherwise in the public interest to disclose the identifying information.  

4.28 Where identifying information is disclosed in line with the PID Act, the disclosure officer must: 

1. advise the person whose identity may become known and outline the reasons for the disclosure 
2. notify the UTS Privacy Officer 
3. undertake further risk assessments to provide additional or supplementary protections where required to minimise any additional risk of detrimental action, and
4. provide additional support options to the maker of the disclosure.

Investigation report 

4.29 Following the investigation, the disclosure officer must provide a confidential investigation report to the Vice-Chancellor for consideration in line with the policy. The report must include:

1. the nature of the disclosure or disclosures being investigated and the assigned case number
2. the investigation process and timelines 
3. evidence to support the allegation  
4. how risks of detrimental action against the maker of the disclosure and the person who is the subject of the disclosure were assessed and minimised
5. individuals involved (anonymised where required)
6. implications under the PID Act or other relevant legislation
7. proposed corrective actions with recommended timelines and responsibilities. 

Outcomes and corrective actions  

4.30 Where an investigation finds serious wrongdoing or misconduct, UTS will take appropriate corrective action in line with the PID Act. This may include:

1. taking action consistent with the investigated person’s relevant industrial instrument, including a caution, reprimand, demotion or reassignment, a fine or termination (with or without the opportunity to resign) or other penalty
2. action authorised by an Act, law, policy or procedure under which the serious wrongdoing is investigated
3. a formal apology by UTS or the person who has been investigated 
4. institutional reform or change, which could include an improvement to policy, procedure or operations, structural change, resource reallocation, training or educational measures or other administrative improvements
5. publication of a report and its findings, and/or
6. payment or other form of compensation to people affected by serious wrongdoing or misconduct.

4.31 Outcomes of an investigation must, without compromising privacy or confidentiality requirements, be assessed to further inform UTS’s fraud and corruption prevention activities as coordinated by the Fraud and Corruption Management Policy. This must be completed by the disclosure officer and presented to the appropriate committee or organisational unit for implementation.

5. Roles and responsibilities

5.1 Procedure owner: The Vice-Chancellor, with support from the policy contacts (refer Roles and responsibilities in the policy), is responsible for enforcement and compliance with this procedure, ensuring that its principles and statements are observed. 

5.2 Procedure contact: The policy contacts (refer Roles and responsibilities in the policy) are jointly responsible for the day-to-day implementation of this procedure and support disclosure officers in fulfilling its provisions.

5.3 Implementation and governance roles: Disclosure officers are responsible for receiving, managing and/or acting on disclosures in accordance with the policy and this procedure.

6. Definitions

The definitions outlined in the policy apply for this procedure. The following are in addition to those definitions. Definitions in the singular also include the plural meaning of the word.

Support person means a person, normally a UTS staff member, assigned to support the maker of the disclosure during the investigation into a public interest disclosure. A support person is provided on request by the People Unit. The maker of a disclosure may nominate to the People Unit for consideration a support person of their own choosing. A support person must:

1. have appropriate experience
2. not be involved in the investigation, and
3. not be a barrister or solicitor in private practice.

Approval information

Procedure contacts	Executive Director, People and Culture                General Counsel and Executive Director, Risk and Compliance                University Secretary and Director, Governance Support Unit
Approval authority	Vice-Chancellor
Review date	2026
File number	UR23/1138
Superseded documents	Fraud and Corruption Prevention and Public Interest Disclosures and Procedure (UR09/417)

Version history

Version	Approved by	Approval date	Effective date	Sections modified
1.0	Vice-Chancellor	08/09/2023	30/09/2023	New procedure.

References

Code of Conduct 

Equity, Inclusion and Respect Policy 

Factfinder: a guide to conducting internal investigations (NSW ICAC) 

Fraud and Corruption Management Policy 

Insurance (SharePoint) 

NSW Ombudsman: Public Interest Disclosures Act 2022 

NSW Ombudsman: Supporting staff involved in PIDs 

Public Interest Disclosures Act 2022 (NSW) 

Speak up at UTS 

Staff Complaints Policy 

Student Complaints Policy 

Student Rights and Responsibilities Policy 

Whistleblowing and Public Interest Disclosures Policy

Appendix 1: Protections available under the PID Act 

The table below provides an overview of the protections available when making a public interest disclosure.

Protection	Voluntary	Mandatory	Witness
Detrimental action: It is an offence to take detrimental action against a person based on a suspicion, belief or awareness that a person has made, may have made or may make a PID.	√	√	√
Right to compensation: A person can initiate proceedings and seek compensation for injury, damage or loss suffered because of detrimental action being taken against them.	√	√	√
Ability to seek preventive injunction: An injunction can be sought to prevent the commission or possible commission of a detrimental action offence against a person.	√	√	√
Ability to seek remedial injunction: If a person has suffered unlawful detrimental action, an injunction can be applied for to remedy that offence (for example, to reinstate the person’s employment).	√	√	√
Confidentiality: Information that may identify a person as the maker of a voluntary PID cannot be disclosed by a public official or an agency except in specific circumstances. Note: However, where possible and provided it does not hinder an investigation, it is best practice for agencies to maintain confidentiality of a maker’s identity whether it is a mandatory or witness PID, or some other type of complaint.	√	X     (refer note)	X     (refer note)
Immunity from civil and criminal liability: A person will not incur civil or criminal liability in relation to making a disclosure. This means that legal action cannot be taken against a person for: breaching a duty of secrecy or confidentiality, or breaching another restriction on disclosure.	√	√	√
Protection from liability for own past conduct: If a person discloses their own wrongdoing or misconduct while they are making a PID, they are not protected from liability for their own past conduct. However, the Attorney-General may give the maker of the PID a conditional or unconditional undertaking that the disclosure of their own conduct will not be used against them.	Can only be provided by the Attorney-General	Can only be provided by the Attorney-General	Can only be provided by the Attorney-General

Source: NSW Ombudsman: Protections under the PID Act (PDF)