Improper conduct and whistleblowing guidelines

Contents:

1. Summary

2. Protect

2.1. Who is protected under this document?

You will be protected under this document (and treated as a Whistleblower under this policy) if:

• you are a person referred to in paragraph 2.2. 'Who can make a report?' 
• you raise a concern about a matter covered by paragraph 2.3 'What can be reported?'; and
• you raise a concern in accordance with paragraph 2.5 ‘How to make a report’.
   

You will also be treated as a Whistleblower if you meet the criteria set out in the Appendix to this document.

2.2. Who can make a report?

You can raise a concern under this document, and the terms of this document will apply to you, if you are a current or former:

1. University employee (including a full time, part time, casual or fixed term employee);
2. University officer (including a councillor, member of a council committee, director or secretary);
3. person who supplies services or goods to the University whether paid or unpaid (for example, a contractor, consultant, service provider, supplier or business partner), or an employee of such a supplier;
4. associate of a University Subsidiary Company as defined under the Corporations Act;^[1]
5. relative, spouse (including a de facto partner) or dependant (or a dependant of the spouse) of any of the people listed above, 

(each a Discloser).

Any person may make a public interest disclosure under the VIC PID Act to IBAC.

University students are not Disclosers and are not able to raise a concern under this document as Whistleblowers, but should instead raise concerns via other appropriate channels, such as outlined in the Complaints Management Guidelines.

[1] This includes a director or secretary of a University Subsidiary Company, a person with whom a University Subsidiary Company acts in concert, or a person with whom a University Subsidiary Company is or proposes to become formally or informally associated.

2.3. What can be reported?

Under this document, Disclosers are encouraged to report any concerns (whether actual or suspected) that they have reasonable grounds to suspect involves Improper Conduct and/or Misconduct in relation to the University.

“Improper Conduct” refers to conduct that is reportable under the VIC PID Act in relation to the University, including:

• criminal or corrupt conduct;
• serious professional misconduct, like theft of public resources such as money or equipment, or using a corporate credit card to buy personal items;
• dishonest performance of work responsibilities, like favouring a friend or relative during a procurement or recruitment process;
• substantial mismanagement of public resources; 
• intentional or reckless breaches of public trust;
• misusing information or material acquired in the course of performance of work responsibilities, whether for personal benefit or not; 
• conduct that prevents or negatively affects the honest performance of work responsibilities, like accepting gifts and hospitality in return for special treatment;
• conduct that is intended to adversely affect the effective performance or exercise of work responsibilities and results in the person or their associate obtaining benefits they would not have otherwise obtained; 
• actions that are a substantial risk to public health, safety or to the environment, like ignoring a serious threat or risk to someone's safety; and/or
• conduct that could constitute a conspiracy or attempt to engage in any of the above matters.
   

As noted above, the University cannot receive and handle public interest disclosures under the VIC PID Act, but Disclosers who do not want to make a public interest disclosure to IBAC can make a disclosure of Improper Conduct under this document if they are otherwise eligible to do so, which will be handled in accordance with this document.

“Misconduct” refers to conduct that is reportable under the Corporations Act and/or Tax Administration Act in relation to the University and/or a University Subsidiary Company. It includes misconduct as defined under the Corporations Act (including fraud, negligence, default, breach of trust and breach of duty) and an improper state of affairs or circumstances (which is not defined under the Corporations Act and may include unlawful conduct or otherwise indicate a serious or systemic issue or unethical business behaviour and practices).

The following are potential examples of conduct that can amount to Misconduct (and potentially also Improper Conduct), which should be reported under this document:

• fraud, corruption and bribery; 
• criminal offences or conduct that is otherwise illegal;
• serious breaches of this document or any other University policy, procedure or guideline; 
• conduct that is a serious and substantial waste, mismanagement or misuse of the University's resources or public resources;
• conduct that causes, or may cause, any loss or reputational impact to the University, or is otherwise detrimental to the University's interests;
• conduct that presents a substantial danger to the public, the health and safety of a person or the environment;
• serious professional misconduct;
• falsification or improper manipulation of research data or findings;
• unauthorised provision of information about the University, its employees, students or research activities to other persons or entities including persons or entities that are identified under foreign interference or autonomous sanctions law;
• conduct which may amount to Improper Conduct;
• detrimental conduct against a person for making a report under this document;
• conduct that could constitute a conspiracy or attempt to engage in any of the above matters; or
• deliberate covering up of any of the above behaviour or conduct.
   

“Improper Conduct” and “Misconduct” are also defined in Section 5.7: Improper Conduct and Misconduct of the People, Culture and Integrity Policy.

The above behaviour or conduct does not necessarily have to contravene a law in order to be reportable under this document.

You do not have to be sure that any of the above behaviour or conduct has occurred in order to raise a concern (for example, if you only have some information leading to a suspicion, but not all the details) and you will be protected under this document even if your concern turns out to be incorrect. 

However, intentionally making a false report is a serious matter and may result in disciplinary action, including dismissal of an employee, termination of contract or other action.

2.4. What complaints or concerns are not whistleblowing?

This document does not generally apply to personal grievances or complaints. 

For example, it does not apply to personal work-related grievances, which are generally grievances relating to a person's current or former employment or engagement that only have implications for them personally, and do not have any other significant implications for the University or relate to any Misconduct, including:

• interpersonal conflicts with another employee;
• challenges to a decision relating to the person's employment or engagement, such as a transfer or promotion;
• challenges to decisions about the person's terms and conditions of employment, such as a pay review; 
• challenges to a decision to suspend or terminate the person's employment, or otherwise discipline them where appropriate; or
• challenges to academic performance and reviews.
   

Personal grievances should instead be raised via other appropriate channels as outlined in the Complaints Management Guidelines. In the first instance, this may include speaking directly with the employee's People and Culture Business Partner. Where this is not appropriate, a formal complaint or grievance can be submitted in writing to workplacerelations@swinburne.edu.au or managed in accordance with the Complaints Management Guidelines.  If the University receives a personal grievance or complaint that is not covered by this document, it will be referred to the appropriate management pathway for consideration and response.

However, if a personal grievance could amount to Improper Conduct and/or Misconduct (refer to paragraph 2.3), would have significant implications for the University, relates to a person suffering from, or being threatened with, detriment for making a report under this document, or relates to both a personal grievance and Improper Conduct and/or Misconduct, it should still be reported under this document. 

2.5. How to make a report

A Discloser can report a concern about Improper Conduct or Misconduct to:

1. the University's external Independent Disclosure Hotline: STOPline, via the contact details outlined at paragraph 4.4; or
2. the University's Disclosure Officer (currently the General Counsel).
    

The role of STOPline and the Disclosure Officer in this capacity is to receive reports that qualify for protection under this document. You are encouraged to make a report through one of the above channels, so that it can be promptly and effectively addressed by the University. However, if you prefer not to use these channels for any reason, additional reporting options for Misconduct are also set out in the Appendix to this document. As set out above, a report of Improper Conduct may also be made to IBAC (and the Discloser may be referred to IBAC, following assessment by the Disclosure Officer). The University may apply the processes and protections set out in this document where concerns are reported outside of these channels, where deemed appropriate, however you may not be eligible to receive protections under the Corporations Act or Tax Administration Act in these circumstances.

If the Discloser does not wish to be identified, reports can be made anonymously or by the Discloser adopting a pseudonym (if appropriate), and you can remain anonymous or under the pseudonym while interacting with the University or STOPline in relation to your report, including during any investigation of your report, as well as after your report is closed. You may choose to identify yourself at any time, but you are not required to do so. 

If you decide to disclose your identity, you may choose to identify yourself to the Disclosure Officer or STOPline only or give permission for the Disclosure Officer or STOPline to disclose your identity on a limited basis, (for example, for the purposes of conducting any investigation into the report or when implementing any actions arising from the investigation). The University will take steps to protect your identity and to protect you from detriment as set out below. 

If you would like to make an anonymous disclosure, it is recommended that you do so through STOPline, which allows for anonymous reports to be made. The University also suggests you maintain ongoing two-way communication with the University, including via STOPline, so they may ask follow up questions or provide feedback. You may refuse to answer questions that you feel may reveal your identity at any time.

If you would like some clarification regarding this document or the University's procedures on a confidential basis before making a report, please contact the Disclosure Officer. 

In appropriate circumstances, such as where a conflict of interest arises, the University will appoint an alternative Disclosure Officer where the University deems it appropriate. 

2.6. Confidentiality

The University's priority is to support and protect a Discloser who raises concerns that are reportable under this document. As part of this, a Discloser who raises a concern under this document will be assumed to wish to be afforded the confidentiality protections set out in this document.  However, where the Discloser identifies themselves and/or disseminates their concern beyond the channels identified in this document, the Discloser should recognise that this increases the risk that their identity (and any information that someone could likely use to identify them) will become known to other individuals, through no fault of the University.

If you are a Discloser and you raise a concern that is reportable under this document, your identity (and any information that the University has because of your report that someone could likely use to identify you) will only be disclosed if:

1. you give your consent;
2. the disclosure is required or allowed by law (for example, disclosure by the University to a lawyer to obtain legal advice about whistleblower protections under law); or
3. in the case of information likely to identify you, it is reasonably necessary to disclose the information for the purposes of an investigation, but your identity is not disclosed and all reasonable steps are taken by the University to prevent someone from identifying you.
    

If a Discloser chooses to disclose their identity in communicating their concern to the University under this document, but wishes to remain more broadly anonymous, the University will take steps to ensure the Discloser’s identity is kept confidential, which may include redacting their personal information or any other information that may lead to their identification, from documentation or communications and referring to them in a gender-neutral context. If a Discloser does choose to remain entirely anonymous, they will still be afforded protections under this document to the extent practicable in circumstances where the University is not aware of their identity.

The University will also take steps to ensure all records, both physical and electronic, of the disclosure are stored in a secure location, and access to information and documents will be limited to those involved in managing and investigating the disclosure.

Consent to the limited sharing within the University of your identity will assist the University to protect and support you in relation to your disclosure and facilitate the University in investigating, reporting and taking action arising as a result of your disclosure. Please be aware that if you do not consent to the limited sharing within the University of your identity and the information provided by you as needed, this may limit the University's ability to progress your report and to take any action in relation to it. It may also limit the University's ability to take proactive steps to protect you from detrimental action.

Any personnel who come into the possession of information relating to a report (such as in the course of handling the report or participating in an investigation into the report), including the identity of a Discloser, must not disclose that information to any individual or entity unless they are given express permission by the University. A breach of this requirement may result in disciplinary action, up to and including termination of employment or engagement as relevant.

If you have any concern that there has been a breach of your confidentiality, you can lodge a complaint with the Welfare Manager / Whistleblower Protection Officer (or, in the event the Welfare Manager / Whistleblower Protection Officer is implicated in the concern or there is a conflict of interest, the Disclosure Officer). 

It is also a criminal offence to disclose certain information connected with a public interest disclosure, or Corporations Act or Tax Administration Act protected disclosure, including the identity of the Discloser, unless a legislative exception applies.

2.7. Protection from detriment

The University strictly prohibits detriment or threats of detriment against a Discloser or any other person because of a report raised under this document, or because of a belief or suspicion that such a report is proposed to be made. These protections are an essential element of creating an environment in which Disclosers feel safe to raise concerns about Improper Conduct and/or Misconduct.

Prohibited detrimental behaviour includes:

• dismissal;
• injury of an employee in their employment, such as denial of a benefit;
• demotion or any other alteration of an employee’s position to their disadvantage;
• unlawful discrimination, harassment or intimidation;
• harm or injury, including psychological harm;
• damage to property, reputation, business, financial position, or any other damage; and/or
• threats to carry out any of the above.
   

Any known or suspected threats or retaliation against a Discloser by an employee, officer or contractor of the University will result in appropriate action by the University, which may include an investigation by the Welfare Manager/ Whistleblower Protection Officer or their delegate, and may result in appropriate disciplinary action, including dismissal or termination of contract. The Welfare Manager/ Whistleblower Protection Officer or their delegate is empowered to take appropriate steps to protect a Discloser from any detriment arising from their report, prevent continuation of any detriment and minimise the effects of any detriment, including, at their discretion, implementing additional protections for the Discloser.

The Welfare Manager/ Whistleblower Protection Officer or their delegate may also guide the Discloser through the process to ensure they receive appropriate care and support. 

If you believe you or someone else has suffered reprisal action as a result of a concern being reported or being proposed to be reported, please immediately report this to the Welfare Manager / Whistleblower Protection Officer (or, in the event the Welfare Manager / Whistleblower Protection Officer is implicated in the concern or there is a conflict of interest, the Disclosure Officer).

The University can take a number of steps to protect a person from detriment and otherwise support them, at the University’s discretion. The protections offered will depend on the circumstances, but could include:

1. offering a leave of absence while the reported Improper Conduct or Misconduct is being investigated;
2. monitoring and managing the behaviour of other staff;
3. implementing investigation processes where appropriate;
4. taking disciplinary action where appropriate;
5. putting in place temporary work arrangements, such as allowing a person to perform their duties from a different location until the matter is resolved, or a move to another suitable department or office location within the University.
    

What is not detrimental action?

The University will, at all times, be able to raise and address with an individual, matters that arise in the ordinary course of their employment or contractual relationship with the University (for example, any separate performance or misconduct concerns), or take appropriate action to protect a person from detriment, and this will not amount to reprisal action. The University will look for ways to support all people who raise a concern, but it will not be able to provide non-employees with the same type and level of support that it provides to its employees. Where this document cannot be applied to non-employees, the University will still seek to offer as much support as reasonably practicable.

To assist with protecting a Discloser from detriment, if a conflict of interest arises, the University will appoint an alternative Welfare Manager/ Whistleblower Protection Officer, where the University deems it appropriate. 

2.8. Fair treatment of any person mentioned in a report or to whom a report relates 

The University is committed to ensuring the fair treatment of any person who is mentioned in a report or to whom a report relates, and will take reasonable steps to this end, including by:

• maintaining confidentiality during an investigation to the extent that it is practicable;
• providing support to any employee or contractor who is the subject of a report where appropriate and, to the extent practicable, including counselling and other support services;
• allowing any employee that is subject to a report to receive procedural fairness, including a sufficient opportunity to be heard before findings are made in an investigation, so that the investigation results in an equitable and correct outcome; and 
• basing investigation findings on the balance of probability.

3. Respond

Subject to any conflict of interest and confidentiality considerations, the Disclosure Officer or their delegate may seek legal advice from internal legal counsel, and/or external counsel following consultation with the General Counsel or the Vice-Chancellor about how to deal with a matter.  In the case of any conduct concerning the Vice-Chancellor and General Counsel, the Disclosure Officer or their delegate may consult with the Chancellor, in relation to whether or not to obtain external legal advice, and/or the Disclosure Officer’s preliminary assessments to decide how to handle a matter including, if relevant, how to proceed with investigations and the appointment of investigators. The Disclosure Officer may also consult with representatives from People and Culture in relation to the handling of a matter, subject to conflict of interest and confidentiality considerations.

Assessments and investigations can be conducted by an individual or team with expertise in people and culture issues, legal and risk management matters internal to the University, or by a suitably qualified external investigator (contracted by the University or via a third party, where appropriate) as determined to be appropriate by the Disclosure Officer and subject to conflict of interest and confidentiality considerations. Subject to any conflict of interest and confidentiality considerations, the Chief Financial Officer, the Director Student Experience, the Deputy Vice-Chancellor Education, Experience and Employability, or the Academic Registrar may also be involved if matters involve financial fraud or students.

If circumstances require (for example, where there is a potential conflict of interest), the University may appoint an alternative investigator in conjunction with the Disclosure Officer and necessary University representatives, where deemed necessary.

Natural justice

The University will ensure that the principles of natural justice are followed in any investigation. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

The investigator’s role is to examine the substance of the report, applying key investigation principles such that they act:

• fairly, objectively and in accordance with the rules of natural justice;
• in line with best practice in investigations;
• in a manner which protects confidentiality; and 
• impartial to the Discloser, the relevant part of the University and the person that is the subject of the report.
   

The timeframe for an investigation will vary depending on the nature of the allegations, the number of individuals to be interviewed (including any witnesses), and any other relevant matters. The University endeavours to complete investigations within 90 days of receipt of a report, however this time period may be exceeded depending on the circumstances of the matter and the facts that emerge during the investigation potentially impacting its scope. 

The University will provide periodic updates to a Discloser where appropriate and where they can be contacted, on the progress and outcomes of the investigation of their report subject to privacy and confidentiality considerations and the fair treatment of the person(s) against whom the allegations or complaint is made. The frequency and timeframe of any updates may vary depending on the nature of the disclosure. These updates may include the following:

1. confirming receipt of a report;
2. advising that an investigative process has begun (where an investigation is appropriate);
3. providing updates on the investigation status (even if there has been no progress);
4. advising when an investigation has been closed.
    

Unless there are confidentiality or other reasons not to do so, employees to whom a report relates will be informed of the allegation at the appropriate time and given an opportunity to respond to the allegation(s) made against them, as and when required by principles of procedural fairness.

Findings will be made on the balance of probabilities that the allegation(s) are:

1. fully substantiated;
2. partially substantiated (for example, if one but not all allegations are substantiated);
3. not able to be substantiated;
4. unsubstantiated; or
5. disproven.
    

The method for documenting and reporting the findings of an investigation will depend on the nature of the report. Subject to confidentiality considerations and any conflict of interest, the Disclosure Officer must report substantiated cases to the Vice-Chancellor (or Chancellor in the event of a conflict of interest) and provide to the Vice-Chancellor an annual report with summary details relating to all disclosures. The Vice-Chancellor must report to Audit and Risk Committee regularly, and as appropriate in respect of any material incidents. Subject to confidentiality considerations and any conflict of interest, any findings or report from an investigation may also be reported to the relevant decision maker and other individuals who have oversight of this document, or who are otherwise required to be aware of the findings and/or report in order for the University to take appropriate action under this document.

Any report prepared in relation to an investigation remains the property of the University and may be subject to legal professional privilege and may not be provided to a Discloser or any other person to whom a report relates.

While the University may communicate the findings of any investigation to a Discloser who has made a report in its absolute discretion, it may not always be appropriate to provide details of the outcome having regard to confidentiality and privacy considerations. If appropriate, the persons to whom the report relates will also be informed of the findings of any investigation.

Action in response to findings

Where an investigation verifies that wrongdoing has occurred, the relevant decision-maker will determine any appropriate outcomes in response to the findings of the investigation. The University may take appropriate disciplinary action in its discretion against staff in response to findings of misconduct or other inappropriate behaviour. This may include, but is not limited to, verbal or written warnings, suspension of employment or termination of employment or engagement of a person(s) involved in any such conduct. Where the matter concerns students or research, applicable University regulations, policies and procedures will be considered in relation to such conduct, together with any national research codes of conduct. If an investigation finds that criminal activity is likely to have occurred, the matter may also be reported to the police and / or other regulatory authorities by the responsible area within the University. 

3.2. External reporting

The Standing Ministerial Directions given pursuant to section 8 of the Financial Management Act 1994 (Vic) set out notification requirements when the University is made aware of actual or suspected Significant or Systemic Fraud, Corruption or Other Loss. The Vice-Chancellor or the Chief Financial Officer are required to report these matters to the University's Audit and Risk Committee, the Victorian Auditor-General, the Responsible Minister and the Portfolio Department as soon as practicable.

The University must provide an initial notification and any subsequent relevant information about the incident, the outcome of any investigation and remedial action.

Significant or Systemic means an incident, or a pattern or recurrence of incidences, that a reasonable person would consider has a significant impact on the University or the State's reputation, financial position or financial management.

The threshold above which an actual or suspected Fraud, Corruption or Other Loss is considered 'Significant' is $5000 in money or $50,000 in other property.

In addition, the University may involve or report matters to the Victorian Police and relevant external agencies such as IBAC and ASIC.  

3.3. Recovery

The University will seek to recover any money or assets lost as a result of Improper Conduct and/or Misconduct and seek criminal or civil restitution when it is in the best interests of the University to do so.

If recovery does not occur, the amount of money or assets lost will be borne by the operating unit where the incident occurred.

3.4. Fidelity Guarantee Insurance

The University will, as part of the regular review of its insurance cover, review the appropriate level of Fidelity Insurance Cover.

3.5. Learning from experience

Subject to confidentiality considerations:

• Management should review controls for any areas affected by Improper Conduct and/or Misconduct and consider whether improvements are required. Where improvements are required, those improvements should be implemented as soon as practicable and communicated to other parts of the University if applicable.
• The Legal Risk and Compliance Division should confirm that proportionate remedial action plans with action owners and specific dates, have been developed and documented; and, where relevant, record these in the Fraud and Corruption Incident Register.

4. Roles and responsibilities

4.4 Contacts

Independent Disclosure Hotline: STOPline

IBAC

ASIC

4.5. Complaints to Ombudsman

Complaints about administrative actions and decisions of the University can be made to the Victorian Ombudsman. If you wish your disclosure to be protected under multiple legislative regimes when making such a complaint, we recommend you seek legal advice before doing so.

Appendix

Protections for whistleblowers provided by Australian corporations law

Overview

As set out in this document, the University is committed to protecting Disclosers who make a report in accordance with this document. 

Protections can also arise under the Corporations Act 2001 (Cth) ("Corporations Act"), which protects Disclosers where they make a disclosure about a "disclosable matter" to a person specified under the Corporations Act as set out below.  Protections can also arise under the Taxation Administration Act 1953 (Cth) ("Taxation Administration Act"). 

This Appendix sets out more information regarding these protections.