Attribute 7: Protected Disclosures

The Need for Protecting Complainants

Failure to effectively support and protect complainants can severely impair the agency's ability to uncover fraud. Research has shown that potential complainants may be reluctant to identify instances of fraud for fear of repercussions.

For example, in a recent survey on public sector views on corruption conducted by the ICAC three quarters of respondents either agreed or strongly agreed with the statement "Those who report corruption are likely to suffer for it".

75% of agencies surveyed had given some attention to protecting complainants and allaying their fears of potential victimisation. However, upon closer inspection this generally constituted little more than a brief statement on the matter and the remaining 25% of agencies had taken no specific action and provided no assurance at all.

Management must make a clear and unequivocal commitment to supporting and protecting all complainants in identifying fraud and corruption within the agency.

Legislative Provisions

Legislation in this area is still in its early stages in New South Wales, and around Australia generally. As such, agencies should take care to keep in touch with the specifics of legislation as it evolves.

NSW is seeking to draw distinctions between three types of disclosures. It is proposed that disclosures of corrupt conduct should be directed to the ICAC, whilst disclosures relating to maladministration be made to the Ombudsman and disclosures concerning matters of substantial waste to the Auditor-General.

It is proposed that all disclosures which qualify under the legislation will receive protection even if the investigating body does not proceed with the matter. However, a disclosure will not be protected if it is made frivolously or not in good faith.

Legislation will make it an offence to take detrimental action against a person for making a protected disclosure. Persons making protected disclosures may also be shielded against other forms of liability associated with the disclosure and from any duty of secrecy or confidentiality imposed upon them by other Acts or policies.

Defining the Scope of Agency Policy

Any legislation relating to protected disclosures must obviously be fully complied with. However, in some respects legislative requirements may set merely a basic minimum standard upon which agencies, in their own best interests, may wish to build further. Agencies should be concerned about effectively dealing with the issues involved and not simply with legislative compliance.

Protection is generally directed primarily towards employees. However suppliers, contractors or customers could also be subject to some form of disadvantage in their ongoing relationship with the agency as a result of making a disclosure. For example:

• customers may experience ongoing poor service.
• contractors or suppliers may have their current contracts terminated or ongoing business with the agency unfairly restricted.

Agency policy on protected disclosures may need to extend beyond employees.

To be successful the agency will need to clearly communicate to all potential complainants that the agency will protect and support those who act in good faith. As a starting point the agency should formally document this commitment and explain how it will be put into practice. For example the agency should:

• explain arrangements for dealing with disclosures received and that complainants will be advised of the outcome of their disclosure including any reasons for not proceeding with a full investigation.
• provide a clear explanation of the provisions of legislation concerning protected disclosures including criteria for eligibility of protection.
• explain confidentiality arrangements relating to disclosures made.
• make a clear policy statement that any persons named or implicated in disclosures will not be permitted to victimise complainants and that any attempts to do so will lead to charges of misconduct being made.
• explain arrangements to deal with any concerns of complainants that they are being disadvantaged as a result of having made a disclosure.
• set clear standards of acceptable behaviour by complainants.

A formal agency policy on protected disclosures should be documented and distributed to reach all categories of potential complainants.

Confidentiality for Disclosures

Legislation will provide protection for those making disclosures. This should be reinforced by the agency making a commitment to maintain confidentiality in respect of disclosures received. Agencies should take a careful and balanced approach to the practical aspects of implementing confidentiality and should consider each situation on its merits. Agencies need to be aware of and to consider a number of factors as discussed below.

Agencies subject to the Public Sector Management Act 1988 cannot guarantee to keep complainants anonymous in the event that a disclosure leads to disciplinary proceedings.

Public Sector Management (General) Regulation 29 (2) enables a person subject to disciplinary action to:

inspect the Departmental papers, correspondence, reports or other documents relating to the matter.

There is no provision under that Regulation for agencies to withhold information that might identify the maker of a disclosure. Rights of access by individuals to any information held about them also need to be considered in terms of:

• principles of natural justice
• the Freedom of Information Act 1989 (FOI Act)
• "Data Protection Principles" (DPPs) developed by the NSW Privacy Committee (copy attached at Appendix 6).

In general terms the DPPs require that individuals subject to investigation be made aware that personal information about them is being held and that they be given an opportunity to have it corrected or removed where it is inaccurate or out of date. However, Schedule 1 of the FOI Act provides certain exemptions to such requirements where investigation of possible breaches of the law and the protection of confidential sources of information are concerned. Exemptions may also apply to protect audit procedures. Relevant extracts from the FOI Act are attached at Appendix 7.

Denial of access to information is acceptable if it is based upon proper application of an exemption in the FOI Act. However, in such a situation the NSW Privacy Committee suggests that an agency should consider whether access will be given to investigation files once an investigation is complete.