What is whistleblowing? 2. Making a whistleblowing report 2. Reporting breaches 3. Internal reports 3 External reports 3

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1 WHISTLEBLOWING CEO Instructions CEO Instructions are procedural in nature. They explain significant policies and procedures that are to be complied with by all Comcare staff and contractors. The CEO Instructions may be supported by policy frameworks, process manuals and templates. TABLE OF CONTENTS Scope 2 What is whistleblowing? 2 Making a whistleblowing report 2 Reporting breaches 3 Internal reports 3 External reports 3 Investigation of whistleblower reports 4 Internal reports 4 External reports 4 Outcome of an investigation 4 Protection for whistleblowers 4 Complaints to the Ombudsman 5 Contractors 5 Annual reporting 5 Further information 5 1

2 SCOPE 1. In the Australian Public Service (the APS), employees have special obligations by virtue of the APS Code of Conduct (the Code) and the APS Values (the Values). The Code and the Values are set out in the Public Service Act 1999 (PS Act) and establish that: > the APS has the highest ethical standards (section 10(1)(d)) > an APS employee must behave honestly and with integrity in the course of APS employment (section 13(1)) > an APS employee must at all times behave in a way that upholds the Values and the integrity and good reputation of the APS (section 13(11)). 2. Comcare considers that the provisions of the Code and the Values outlined on the previous page impose a reporting obligation on all APS employees with regard to suspected breaches of the Code. In some circumstances it could be a breach of the Code for an employee not to report a suspected breach. 3. Section 16 of the PS Act provides protection for APS employees who make whistleblower reports of suspected breaches of the Code to persons authorised to receive such reports. 4. This instruction sets out Comcare s policy on the procedures to be followed when a whistleblower report is made. 5. This policy takes effect from the date this instruction was signed by the Chief Executive Officer. All whistleblower reports made prior to this date are covered by Comcare s policy dated 23 May WHAT IS WHISTLEBLOWING? 6. Whistleblowing disclosures may include reports of: > fraud, corruption or other criminal behaviour > waste, misuse or mismanagement of Comcare resources > practices resulting in danger to public health or safety > harassment of Comcare staff or clients > conflict of interest > the use of, or disclosure of, information obtained in the course of an employee s employment for his/her own benefit or advantage > other actions that would amount to a breach of the Code. 7. Generally disclosures that amount to complaints against a government or departmental/agency policy or complaints or grievances seeking a review of an administrative decision are not considered to be whistleblowing. MAKING A WHISTLEBLOWING REPORT 8. An APS employee may make a whistleblower report verbally, in writing or by electronic mail. A written report is not mandatory. An employee may also make an anonymous report. 9. The report should provide full details of the alleged breach to the extent known by the employee. The person to whom the report is made should, where possible, acknowledge receipt of the report. CEO INSTRUCTION WHISTLEBLOWING 2

3 REPORTING BREACHES Internal reports 10. An APS employee may make a whistleblower report verbally, in writing or by electronic mail. A written report is not mandatory. An employee may also make an anonymous report. 11. The report should provide full details of the alleged breach to the extent known by the employee. The person to whom the report is made should, where possible, acknowledge receipt of the report. 12. An employee may make a whistleblower report to the Chief Executive Officer (CEO) or to a person authorised by the CEO. Persons within Comcare authorised by the CEO to receive disclosures are the: > Deputy Chief Executive Officer, Comcare > Chief Operating Officer, Comcare > Members of the Executive, SES Band 1, Comcare. External reports 13. If an employee considers the matter to be of such sensitivity that he/she feels unable or unwilling to report it within Comcare, a whistleblowing report can be made to the Public Service Commissioner (PSC) (or to a person authorised by the PSC) or to the Merit Protection Commissioner (MPC) (or to a person authorised by the MPC). 14. The functions of the PSC are set out in section 41(1) of the PS Act, and those of the MPC are set out in section 50(1). Part of the function of the PSC and the MPC is to inquire into whistleblower reports. Whistleblower reports may be made to the PSC and the MPC in two circumstances: > where the PSC or the MPC agrees that whistleblower reports relate to an issue that would be inappropriate to report to the employee s agency head (regulation 2.4(2)(c) of the Public Service Regulations 1999 (the Regs)), or > where an employee has made a report within their agency and is not satisfied with the outcome of the investigation of the report (regulation 2.4(2)(g)). 15. The PSC and MPC have indicated that unless there are special circumstances such as the personal involvement of the agency head, they would expect that the concerns would have been raised first within the agency. 16. In appropriate cases, where Comcare, the PSC or the MPC receive a whistleblower report that alleges criminal conduct, the matter will be referred to the Australian Federal Police. 17. A whistleblower report should not be made to someone other than a person authorised to receive it. If a report is made to someone who is not authorised to receive it: > the person who made the report may have committed an offence under section 70 of the Crimes Act 1914 > the report may impair an investigation by Comcare into the alleged breach prior to finalisation of the investigation > the report may unfairly damage the reputation of the person about whom the disclosure relates. If this occurs, the whistleblower could be subject to legal action for defamation. CEO INSTRUCTION WHISTLEBLOWING 3

4 INVESTIGATION OF WHISTLEBLOWER REPORTS Internal reports 18. When a whistleblower report (made anonymously or otherwise) is made to the CEO or to an authorised person, they (or another person authorised to receive whistleblower reports) will consider the report so as to determine whether there is sufficient evidence to justify an investigation under Comcare s procedures for dealing with breaches of the Code. 19. If it is determined that an investigation is warranted, the alleged breach will be dealt with in accordance with the Comcare policy made under section 15(3) of the PS Act for investigating such breaches. An APS employee may make a whistleblower report verbally, in writing or by electronic mail. A written report is not mandatory. An employee may also make an anonymous report. External reports 20. When a disclosure is made directly to the PSC or the MPC in the circumstances outlined in paragraph 16 above, the PSC or the MPC will investigate the matter or authorise a person to investigate it if they do not consider the report to be frivolous or vexatious. 21. The task of the PSC or the MPC is to determine whether a recommendation should be made to the agency head to commence action under the agency s procedures for determining breach of the Code. 22. Neither the PSC or the MPC have the power to reach any determination about whether the alleged breach of the Code has actually occurred or to impose a sanction in relation to the alleged breach. Any such determination must only be made under procedures established by the agency under section 15(3) of the PS Act. 23. The matter may be referred back to the agency if the PSC or the MPC considers this to be the appropriate course of action. OUTCOME OF AN INVESTIGATION 24. Comcare will advise the whistleblower whether or not action will be taken to determine whether there has been a breach of the Code. 25. Comcare will not advise the whistleblower of the actual outcome of any action taken in relation to a determined breach of the Code. 26. The findings of any investigation will be dealt with as soon as practicable. 27. An employee making a whistleblower report is also required to act responsibly, fairly and ethically in accordance with the Code and Values. Comcare may consider taking Code of Conduct action against an employee who makes a whistleblower report which is not genuine or is made other than in good faith. PROTECTION FOR WHISTLEBLOWERS 28. A person performing functions in or for an agency must not victimise or discriminate against an employee who has made a whistleblower report to an authorised person, or who has assisted in an investigation in response to an alleged breach of the Code. 29. Any victimisation or discrimination such as unfair treatment, harassment or retaliatory action will be investigated as a suspected breach of the Code. Comcare encourages an employee who has made a whistleblower report or assisted in an associated investigation, to report any behaviour that they regard as retaliatory, to Comcare. CEO INSTRUCTION WHISTLEBLOWING 4

5 30. An employee s employment must not be terminated for lodging a whistleblower report, or for participating in proceedings against an employer once a whistleblower report has been lodged. 31. No protection can be given to an employee who makes an anonymous disclosure. 32. There is no specific protection provided in the PS Act or the Regs in relation to liability for defamation in respect of disclosures made under whistleblowing provisions. If an employee is concerned that a whistleblower report may be defamatory, or has other legal concerns, the employee should seek independent legal advice prior to making the disclosure. COMPLAINTS TO THE OMBUDSMAN 33. This instruction does not affect the right of employees to disclose suspected breaches of the Code directly to the Commonwealth Ombudsman. However, the Ombudsman is unable to investigate complaints about: politics, private individuals or companies, decisions of courts or tribunals, employment disputes except in the Australian Defence Force, actions of State or local governments, actions of government ministers, or actions of some government business enterprises. 34. When a disclosure is made to the Ombudsman under the Ombudsman Act 1976 (section 37) the Act provides some protection from civil actions if a disclosure is made in good faith. CONTRACTORS 35. Whistleblower protection as provided for in section 16 of the PS Act does not apply to contractors (that is people employed under contract who are not APS employees). However, all persons performing functions in or for an agency, including contractors, are prohibited from victimising or discriminating against employees who do report a breach of the Code. ANNUAL REPORTING 36. At the end of each financial year, the PSC and MPC are required to provide a report to the Prime Minister for presentation to each House of Parliament on the state of the APS during that year. This report has to include an evaluation of the systems and procedures that agencies have in place for ensuring compliance with the Code. FURTHER INFORMATION 37. Any questions regarding this whistleblowing policy should be referred to the Chief Operating Officer. Chief Executive Officer Comcare 2015 CEO INSTRUCTION WHISTLEBLOWING 5

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