MCEC

Protected disclosures

Protected Disclosure Policy and Guidelines

1. POLICY

The Melbourne Convention and Exhibition Trust (MCET) is a public body subject to the Protected Disclosures Act 2012 (Vic) (PD Act). 

There are three main purposes of the PD Act:

To encourage and assist people to make a disclosure of improper conduct and detrimental action by public officers and public bodies.

To provide certain protections for people who make a disclosure, or those who may suffer detrimental action in reprisal for a disclosure.

To ensure that certain information about a disclosure is kept confidential – the identity of the person making the disclosure, and the content of that disclosure.

MCET is committed to a culture of corporate compliance and ethical behaviour, and does not tolerate improper conduct by its employees, officers or contractors, nor the taking of reprisals against those who come forward to disclose such conduct.

MCET recognises the value of transparency and accountability in its administrative and management practices and supports the making of disclosures that reveal corrupt conduct; conduct involving a substantial mismanagement of public resources.

MCET is committed to protecting people who make such disclosures from any detrimental action in reprisal for making the disclosure.  MCET will also afford natural justice to the person who is the subject of the disclosure.

MCET is committed to rectifying any wrongdoing verified by an investigation to the extent practicable in all the circumstances.

2. SCOPE

The Protected Disclosure Policy and Guidelines applies to all persons employed or engaged by MCET, and the general public.

3. GUIDELINES

What is disclosure?

A disclosure is a report made by a person about improper conduct of public bodies or public officers to any of the organisations specified in Part 2 of the PD Act.  A disclosure can also be made about detrimental action against a person by public bodies or public officers in reprisal for the making of a protected disclosure by any person.

A complaint or allegation that is already in the public domain will not normally be a protected disclosure, for example if the matter has already been subject to media or other public commentary. The term 'disclosure' is interpreted under the PD Act in the ordinary sense of the word as a 'revelation' to the person receiving it.

The disclosure can relate to improper conduct or detrimental action against a person that may already have taken place, may be occurring now, or the public officer or public body may be going to do it in the future. Disclosures can be made about conduct that occurred prior to the commencement of the PD Act on 10 February 2013.

A disclosure made in accordance with the requirements of Part 2 of the PD Act, may also be a complaint, notification or disclosure made under another Act.

For a disclosure to be a protected disclosure it must be made in accordance with the requirements of Part 2 of the PD Act.

Who can make disclosure?

Any person can make a disclosure about improper conduct by public bodies and public officers. This includes a person who is a member, officer or employee of a public body or public officer. However, the making of disclosure is not limited only to ‘internal’ disclosers.

A company or a business cannot make a disclosure. The person making the disclosure must be an individual or a group of individuals making joint disclosures.

A disclosure can be made anonymously. However, this creates potential difficulties in being able to assess whether a complaint is a disclosure.

A person can also make a disclosure in circumstances where they cannot identify the person or the organisation to which the disclosure relates.

How to make a disclosure

MCET is not an entity to which protected disclosures can be made.  Any disclosures in relation to improper conduct and/or detrimental action by MCET, its officers or employees (as described in the PD Act) should be made directly to the Independent Broad-based Anti-corruption Commission (IBAC).

Refer to the IBAC website for information on making a complaint or contact IBAC as follows:

Independent Broad-based Anti-corruption Commission

Phone:             1300 735 135             
Fax:                 03 8635 6444
Post:                GPO Box 24234, Melbourne, Victoria, 3001
Street:             Level 1, North Tower, 459 Collins Street, Melbourne, Victoria, 3000
Website:          www.ibac.vic.gov.au

How is a disclosure assessed by ibac?

Once a notification is made to IBAC, then IBAC must assess whether, in IBAC’s view, the assessable disclosure is a protected disclosure. If IBAC is of the view that the assessable disclosure is a protected disclosure, then it must determine that the protected disclosure is a ‘protected disclosure complaint’.

In making its assessment, IBAC may seek additional information from the notifying entity or from the discloser if IBAC considers there is insufficient information to make a decision.

If IBAC is of the view that the assessable disclosure is not a protected disclosure, then it is not a ‘protected disclosure complaint’.

Whether or not IBAC determines the disclosure to be a protected disclosure complaint, the protections under Part 6 of the PD Act apply to the discloser.

Once IBAC has determined that a disclosure is a protected disclosure complaint, the discloser cannot withdraw that disclosure (section 55(4) of the IBAC Act). An ordinary complaint made to IBAC differs in that it can be withdrawn at any time after making it. However, under section 68(2)(e) of the IBAC Act, IBAC can decide not to investigate a protected disclosure complaint if the discloser requests that it not be investigated.

Once IBAC has made a determination in respect of an assessable disclosure notified to it, then IBAC has a responsibility to advise the relevant notifying entity of its determination, and the action IBAC intends to take. This advice must be provided within a reasonable time of the action being taken, or an investigation commenced.

IBAC is also responsible for advising disclosers who have made their disclosures directly to IBAC, or who have had their disclosures notified to IBAC, of the determination and the action IBAC intends to take. This advice must be provided within a reasonable time of the action being taken, or an investigation commenced.

Protections for persons making disclosures

Part 6 of the PD Act sets out the protections provided to persons who make a disclosure that is a ‘protected disclosure’ made in accordance with Part 2 of the PD Act.

The protections apply to a disclosure made under Part 2 of the PD Act from the time at which the disclosure is made to any of the public bodies specified, or IBAC. They apply even if the public body receiving the disclosure does not notify the disclosure to IBAC, and whether or not IBAC has determined that it is a protected disclosure complaint.

The protections also apply to further information relating to a protected disclosure made by the original discloser, if the further information has been provided, verbally or in writing, to:

  • the entity to which the protected disclosure was made
  • IBAC, or
  • an investigating entity investigating the protected disclosure.

An employee of a public service body or public entity who has made a protected disclosure and believes on reasonable grounds that detrimental action will be, is being, or has been taken against them may request a transfer of employment.

However, a discloser is not protected if they commit an offence under section 72 or 73 of the PD Act.

Welfare Management

The protection of persons making genuine protected disclosures about improper conduct or detrimental action is essential for the effective implementation of the PD Act. In addition, the PD Act extends the need for welfare management to those people who have cooperated or intend to cooperate with an investigation of a protected disclosure complaint.

A person making a protected disclosure may be employed by a public body or may be a member of the public. A person cooperating with an investigation into a protected disclosure complaint will also fall into one of the same categories.

Public bodies have obligations to protect people both from inside or outside the public body from detrimental action taken in reprisal for the making of the disclosure.

If the disclosure is determined as a protected disclosure complaint by IBAC, these public bodies have further obligations with respect to the discloser. They must protect the identity of the discloser and the content of the person’s disclosure to ensure confidentiality.

4. REFERENCES

Protected Disclosures Act 2012 (Vic)
ISO 9001:2008 Quality Management Systems

 

Last updated 8 August 2014