Protected Disclosures Policy and Procedure

Purpose

The purpose of this policy and procedure is to ensure that the University operates an appropriate internal procedure for receiving and dealing with information about serious wrongdoing in or by the University in accordance with the provisions of the Protected Disclosures Act 2000.

The purpose of the Protected Disclosures Act is to promote the public interest:

1. By facilitating the disclosure and investigation of matters of serious wrongdoing in or by an organisation; and
2. By protecting staff who, in accordance with the Act, make disclosures of information about serious wrongdoing in or by an organisation.

Organisational scope

This policy and procedure applies to all staff at the University and includes:

• former staff members
• individuals seconded to the University
• individuals contracted to the University under contracts for services
• members of the University’s management staff

Definitions

Serious Wrongdoing

A serious wrongdoing includes any of the following types:

• an unlawful, corrupt, or irregular use of public funds or public resources;
• an act, omission, or course of conduct that constitutes a serious risk to public health or public safety or the environment;
• an act, omission, or course of conduct that constitutes a serious risk to the maintenance of law, including the prevention, investigation, and detection of offences and the right to a fair trial;
• an act, omission, or course of conduct that constitutes an offence;
• an act, omission, or course of conduct by a public official that is oppressive, improperly discriminatory, or grossly negligent, or that constitutes gross mismanagement,
• whether the wrongdoing occurs before or after the commencement of the Protected Disclosures Act.

Content

1. Policy

1. University Disclosure Officer
   The person nominated by the University for the receipt and investigation of protected disclosures is the Director, Human Resources Division, or his appropriately delegated nominee.
2. When information may be disclosed
   A staff member may disclose information in accordance with the procedure described in the following section if:
   1. the information is about serious wrongdoing in or by the organisation; and
   2. the staff member believes on reasonable grounds that the information is true or likely to be true; and
   3. the staff member wishes to disclose the information so that the serious wrongdoing can be investigated; and
   4. the staff member wishes the disclosure to be protected.
3. Personal Grievance
   Where a staff member who makes a protected disclosure of information claims to have suffered retaliatory action from the University, that staff member may have a personal grievance in accordance with the provisions of the Protected Disclosures Act.
4. Immunity from civil and criminal proceedings
   No staff member who –
   1. Makes a protected disclosure of information; or
   2. Refers a protected disclosure of information to an appropriate authority for investigation
   – is liable to any civil or criminal proceeding or to a disciplinary proceeding by reason of having made or referred that disclosure of information.
   Sections d.(i) and (ii) apply despite any prohibition of or restriction on the disclosure of information under any enactment, rule of law, contract, oath, or practice.
5. Confidentiality
   1. Every person to whom a protected disclosure is made or referred must use his or her best endeavours not to disclose information that might identify the staff member who made the protected disclosure unless –
      1. the disclosing staff member consents in writing to the disclosure of that information; or
      2. the person who has acquired knowledge of the protected disclosure reasonably believes that disclosure of identifying information –
         1. is essential to the effective investigation of the allegations in the protected disclosure; or
         2. is essential to prevent serious risk to public health or public safety or the environment; or
         3. is essential having regard to the principles of natural justice.
   2. A request for information under the Official Information Act 1982 (other than one made by a member of the police for the purpose of investigating an offence) may be refused, as contrary to the Protected Disclosures Act, if it might identify the disclosing staff member.
6. False allegations
   The protections conferred by the Protected Disclosures Act and by section 66(1)(a) of the Human Rights Act 1993 do not apply where the disclosing staff member makes an allegation known to that staff member to be false or otherwise acts in bad faith.
7. Internal procedure
   The procedure described in the following section must be followed when staff wish to disclose information about a serious wrongdoing. This is in accordance with the requirement of the Protected Disclosures Act that all public sector organisations must operate appropriate internal procedures.
8. Publication of procedure
   Information about the procedure described in the following section will be published at regular intervals in the Staff Bulletin.
9. Twenty working days
   The University’s response to any disclosure of serious wrongdoing must occur within 20 working days after the date on which the disclosure was made.

2. Procedure

The following procedure must be used whenever a staff member wishes to disclose a serious wrongdoing in terms of the Protected Disclosures Act:

1. A disclosure of a serious wrongdoing should be made in writing to the University Disclosure Officer except in certain circumstances (see items (e) to (g) below).
2. The disclosure statement should include all relevant details and should be signed and dated by the disclosing staff member. A returning address should also be provided.
3. Upon receipt of the disclosure statement, the University Disclosure Officer will acknowledge receipt, in writing, of the statement, and take whatever action he/she deems appropriate to investigate and resolve the particular serious wrongdoing.
4. The University Disclosure Officer will, within 20 working days after the date on which the disclosure was made, report in writing to the disclosing staff member what action he/she has taken or recommended to be taken.
5. A disclosure may be made directly to the Vice-Chancellor if:

   1. the disclosing staff member believes on reasonable grounds that University Disclosure Officer is or may be involved in the serious wrongdoing alleged in the disclosure; or

   2. the disclosing staff member believes on reasonable grounds that the University Disclosure Officer is, by reason of any relationship or association with a person who is or may be involved in the serious wrongdoing alleged in the disclosure, not a person to whom it is appropriate to make the disclosure.

6. A disclosure may be made to an appropriate authority if the disclosing staff member believes on reasonable grounds:
   1. that the Vice-Chancellor is or may be involved in the serious wrongdoing alleged in the disclosure; or
   2. that immediate reference to an appropriate authority is justified by reason of the urgency of the matter to which the disclosure relates, or some other exceptional circumstances; or that there has been no action or recommended action on the matter to which the disclosure relates within 20 working days after the date on which the disclosure was made.
   3. (“Appropriate authority”, without limiting the meaning of that term, includes –
      1. the Commissioner of Police; the Controller and Auditor-General; the Director of the Serious Fraud Office; the Inspector-General of Intelligence and Security; an Ombudsman; the Parliamentary Commissioner for the Environment; the Police Complaints Authority; the Solicitor-General; the State Services Commissioner; the Health and Disability Commissioner; and
      2. includes the head of every public sector organisation, whether or not mentioned in paragraph 1.; and
      3. includes a private sector body which comprises members of a particular profession or calling and which has power to discipline its members; but
      4. does not include a Minister of the Crown; or a Member of Parliament).
7. A disclosure may be made to a Minister of the Crown or Ombudsman if the disclosing staff member:
   1. has already made substantially the same disclosure in accordance with items (a) to (f) above, and believes on reasonable grounds that the person or appropriate authority to whom the disclosure was made –
      1. has decided not to investigate the matter; or
      2. has decided to investigate the matter but has not made progress with the investigation within a reasonable time after the date on which the disclosure was made to the person or appropriate authority; or
      3. has investigated the matter but has not taken any action in respect of the matter nor recommended the taking of action in respect of the matter, as the case may require; and
   2. continues to believe on reasonable grounds that the information disclosed is true or likely to be true.
   3. (A disclosure may be made to an Ombudsman only if it has not already been made to an Ombudsman in terms of item (g) above).

Related policies, procedures and forms

• Protected Disclosures Act
• Official Information Act 1982
• Human Rights Act 1993
• Privacy Act 1993

Contact for further information

If you have any queries regarding the content of this policy or need further clarification, contact:

Kevin Seales
Director, Human Resources
Email kevin.seales@otago.ac.nz
Tel +64 3 479 8267