Prevention and Management of Corrupt Conduct and Public Interest Disclosure Procedure

24 Jun Prevention and Management of Corrupt Conduct and Public Interest Disclosure Procedure

Version 1 (June 2021)

Associated Policy

Prevention and Management of Corrupt Conduct and Public Interest Disclosure Policy

Procedure

Corrupt Conduct

Definition of Corrupt Conduct

For a detailed definition of corrupt conduct, refer to section 15 of the Crime and Corruption Act 2001.

Making a Complaint

The Board of Professional Engineers of Queensland is an independent statutory body that falls within the portfolio for the Minister of Housing and Public Works. Due to the mixed employment model used by the Board, there are several key contacts who have been delegated the responsibility to deal with a complaint about, or information or matter involving, corrupt conduct.

These delegates have the responsibility to deal with complaints in the way they consider most appropriate, subject to the monitoring role of the Crime and Corruption Commission (CCC).

The roles that have the delegated responsibilities to deal with complaints under the Boards Prevention and Management of Corrupt Conduct and Public Interest Disclosure Policy are:

• 1. the Chair, or
  2. the Board, or
  3. the Registrar, or
  4. a supervisor/manager, or
  5. the Assistant Director-General, Building Legislation and Policy, Department of Housing and Public Works, or
  6. the Minister for Housing and Public Works, Minister for Digital Technology and Minister for Sport, or
  7. a Member of Parliament or a person to whom such a report may otherwise lawfully be made (for example, if the alleged corrupt conduct/PID involves a criminal offence, it may be reported to a member of the Queensland Police Service).

Any person may make a complaint about, or give information involving suspected corrupt conduct to a delegated officer. Complaints may be made in any manner: in writing, in person or over the telephone.

Employees may also complain about, or give information involving suspected corrupt conduct directly to a delegated officer.

Where a complaint alleging corrupt conduct is made to a Board employee other than one of the delegated officers, that person must forthwith and without commencing any inquiry into the matter which is the subject of the complaint, refer the complaint in confidence to the appropriate officer.

If a complaint discloses a risk to the health or safety of any person, it is incumbent upon the person in receipt of the complaint to also immediately take all necessary and appropriate steps to protect the health and safety of the person at risk while preserving the confidentiality of the complaint to the maximum extent possible in the circumstances.

If there is some suspicion of corrupt conduct which has a basis of ‘reasonable grounds’ then it is reportable.

A person does not have to have sufficient evidence to prove the corrupt conduct allegation, but the available facts, evidence or other information must suggest that the allegation, if proven, would amount to corrupt conduct. The suspicion may be relevant even if it is based on hearsay and/or other inadmissible material.

If in any doubt whatsoever, report the matter or seek advice from the Registrar, the Board, or raise the matter directly with the CCC. It should be remembered that a suspicion of corrupt conduct may arise through processes other than a person making a complaint. For example, a suspicion of corrupt conduct may arise through the ordinary review of management reports or a grievance investigation or internal audit reports.

In making a complaint, the complainant should provide as much relevant information or documentation as possible to enable the matter to be assessed expediently. If possible, it is useful for a complainant to provide the following information:

• 1. what happened
  2. when it happened
  3. where it happened
  4. who said what to whom
  5. whether anyone saw what happened (including contact details for any witnesses)
  6. whether the complainant has reported the matter to any other agency and
  7. what outcome the complainant seeks from the complaint (for example, an apology).

If documents are included with a complaint, it is useful for the complainant to explain the relevance of these to the complaint.

A complainant is encouraged to provide contact details for follow up action however, complaints can be made anonymously. A complainant who does not wish to provide his or her name may provide an alias and contact point instead.

Subject to disclosures required or authorised by or under law (including the law of natural justice), the CCC has advised that the following should be kept confidential:

• 1. the fact that a complaint has been made
  2. the identity of a person who has made the complaint
  3. the identity of the person the subject of the complaint and
  4. the fact that a complaint is under investigation.

Duty to Disclose

Subject to a direction issued by the CCC to the Board pursuant to section 40 of the Crime and Corruption Act 2001, the Board (or any other delegated officer) has a duty to refer to the CCC a complaint, information or matter in which it is reasonably suspected involves, or may involve, corrupt conduct.

The delegated officers have been delegated the duty to notify the CCC of a complaint about, or information or matter involving, corrupt conduct.

The duty is an obligation (not a discretion) and must be observed irrespective of any provision to the contrary in any other legislation (except section 7.2(3) of the Police Service Administration Act 1990 (Qld)) or any obligation to maintain confidentiality.

Action Following Receipt of Complaint

For certain matters the delegated officers are not required to refer the matter to the CCC without unreasonable delay and can proceed to investigate or deal with the complaint. In general terms, the complaints that are dealt with in this manner are less serious matters and are either notifiable to the CCC by monthly schedule, or not notifiable but subject to the CCC’s auditing program.

The following process usually occurs after the receipt of a complaint, information or matter (referred to as a ‘complaint’):

• 1. if the delegated officer is satisfied that:
     1. a complaint which has been reported is frivolous or vexatious or lacks substance or credibility; or
     2. dealing with a complaint which has been referred would be an unjustifiable use of resources;

the delegated officer may take no action or discontinue action taken to deal with the complaint.

• 1. if the delegated officer reasonably suspects that a complaint involves, or may involve, corrupt conduct, the complaint is referred to the CCC. The employee the subject of such a referral is not advised of the referral so as not to jeopardise the conduct of any investigation or risk the destruction of any evidence.
  2. the CCC assesses the complaint and forms a preliminary view as to whether corrupt conduct is or may be involved and if so, determines whether it will investigate the matter itself or refer it back to the Board or another Queensland Government agency (for example, the Queensland Police Service) for an investigation and report. In some cases, the CCC will jointly investigate a complaint with another Queensland Government agency.
  3. if the CCC forms the view that corrupt conduct is not involved, it will refer the matter back to the Board to deal with (generally with the proviso that if the investigation subsequently reveals suspected corrupt conduct then the matter should be referred again to the CCC).
  4. if the CCC investigates a matter itself, liaison between the CCC and the Board occurs as necessary.
  5. if the CCC refers the matter back to the Board for an investigation and report, it will normally follow that the Board or an appropriate delegated officer coordinates the necessary investigation and preparation of a report and outcome advice to the CCC.
  6. the complainant and the subject officer (in circumstances where they have been required to respond to allegations) are notified of the investigation findings pertaining to them by the agency that carried out the investigation (usually the CCC or the Board).

If a complaint is dealt with by the Board, the complainant is to be given a response stating:

• 1. if no action is taken on the complaint or action to deal with the complaint is discontinued, the reason for not taking action or discontinuing the action; or
  2. if action is taken on the complaint, the action taken, the reason the action is considered to be appropriate in the circumstances and any results of the action that are known at the time of the response.

However, the complainant need not be given a response if:

• 1. the complainant has not given his or her name and address or does not require a response; or
  2. the response would disclose information the disclosure of which would be contrary to the public interest.

If a complaint is dealt with by the CCC or another Queensland Government agency, then the CCC or the agency will respond to the complainant.

False or Misleading Statements and Documents

It is an offence for a person to provide information to the CCC that the person knows is false or misleading in a material particular. It is also an offence to provide false or misleading information to another entity (such as the Board) who is obliged to provide that information to the CCC, whether or not the person who provided the information intended that it be provided to the CCC.

Complaints about the Registrar

Complaint that Involves Corrupt Conduct of a Public Official

The Crime and Corruption Act 2001 requires that a unit of public administration addresses how it will deal with a complaint that involves, or may involve, corrupt conduct of a public official. A public official has been defined as the chief executive officer and the Registrar is the chief executive officer of the Board.

The Prevention and Management of Corrupt Conduct and Public Interest Disclosure Policy nominates the Registrar as a delegated officer to notify the CCC of the complaint and to deal with the complaint under the CC Act.

Having regard to section 48A(2) and (3) of the CC Act, the Senior Legal Officer (the nominated officer), ohas the delegated authority to:

• 1. notify the CCC of any complaint that involves, or may involve, the Registrar under section 38 of the CC Act; and
  2. deal with the complaint under section 44 of the CC Act, subject to the CCC’s monitoring role when:
     1. directions issued under section 40 of the CC Act apply; or
     2. pursuant to section 46, the CCC refers the complaint to the nominated person to deal with.

Resourcing

If, pursuant to sections 40 or 46 of the CC Act, the nominated person has responsibility to deal with the complaint:

• 1. the Board will ensure that sufficient resources are available to the nominated person to enable them to deal with the complaint appropriately and
  2. the nominated person is to ensure that consultations, if any, for the purpose of securing resources sufficient to deal with the complaint appropriately are confidential and are not disclosed, other than to the CCC, without:
     1. authorisation under a law of the Commonwealth or the State or
     2. the consent of the nominated person responsible for dealing with the complaint.
  3. the nominated person must, at all times, use their best endeavours to act independently, impartially and fairly having regard to the:
     1. purposes of the CC Act
     2. the importance of promoting public confidence in the way suspected corrupt conduct in the Board is dealt with and
     3. the Board’s statutory, policy and procedural framework.

If the nominated person has responsibility to deal with the complaint, they:

• 1. are delegated the same authority, functions and powers as the Registrar to direct and control staff of the Board as if the nominated person is the Registrar of the Board for the purpose of dealing with the complaint only.
  2. are delegated the same authority, functions and powers as the Registrar to enter into contracts on behalf of the Board for the purpose of dealing with the complaint.
  3. do not have any authority, function or power that cannot – under the law of the Commonwealth or the State – be delegated by either the Board, Chairperson or Registrar to the nominated person.

Public Interest Disclosures

Making a Public Interest Disclosure

In general terms, a public interest disclosure (PID) means a disclosure of information by an employee to a Proper Authority about certain wrongdoing i.e. suspected corrupt conduct, maladministration, a substantial misuse of public resources, or a substantial and specific danger to public health or safety or the environment. Any person may also disclose to a Proper Authority a substantial and specific danger to the health or safety of a person with a disability, certain substantial and specific dangers to the environment or a reprisal.

For a more detailed definition of a PID, refer to section 11 of the Public Interest Disclosure Act 2010.

In broad terms the Public Interest Disclosure Act 2010 protects employees who make PIDs to a Proper Authority. The PID Act also protects persons other than employees who make certain PIDs.

A Proper Authority for PIDs involving the conduct of the department or any of the department’s public officers includes:

• 1. the Chair, or
  2. the Board; or
  3. the Registrar, or
  4. a supervisor/manager, or
  5. the Assistant Director-General, Building Legislation and Policy, Department of Housing and Public Works; or
  6. the Minister for Housing and Public Works, Minister for Digital Technology and Minister for Sport; or
  7. a Member of Parliament; or
  8. a person to whom such a report may otherwise lawfully be made (for example, if the alleged corrupt conduct/PID involves a criminal offence, it may be reported to a member of the Queensland Police Service).

If there is information which involves the conduct of a public sector entity (other than the Board of Professional Engineers of Queensland), or any of its public officers, it will not be a PID if it is made to the Board as the Board is not a Proper Authority to receive such a disclosure. In this situation the disclosure may be made to the chief executive of the other public sector entity, a person within the other public sector entity who has the function of receiving or acting upon PIDs, the Minister responsible for the other public sector entity or a Member of the Legislative Assembly.

If a PID involves suspected corrupt conduct, it may also be made to the CCC.

PIDs can also be reported to a public sector entity which has the power to investigate or remedy the thing to which the information relates. For example, if a PID involves a significant public safety matter it can be made to Workplace Health and Safety Queensland. If a PID involves suspected corrupt conduct, it may also be made to the CCC.

In certain circumstances a PID may be made to a journalist. A PID may only be made to a journalist if:

• 1. a person (including an employee) has already made a PID, and
  2. the Board or other entity to which the PID was made or referred:
     1. decided not to investigate or deal with the PID or
     2. investigated the PID but did not recommend any action be taken, or
     3. did not notify the discloser within six months whether or not the PID would be dealt with or investigated.

PIDs may be made in any manner (in writing, over the telephone or in person).

When PIDs are made to a Board employee other than a delegated officer, that person must forthwith and without commencing any inquiry into the matter which is the subject of the PID, refer the PID in confidence to the appropriate nominated delegated officer.

If a PID exposes a risk to the health or safety of any person, it is incumbent on the person in receipt of the PID to also immediately take all necessary and appropriate steps to protect the health and safety of the person at risk while preserving the confidentiality of the PID to the maximum extent possible in the circumstances.

The threshold for making a PID is low. Either the discloser honestly believes on reasonable grounds that the information tends to show wrongdoing, or the information tends to show wrongdoing regardless of whether the person honestly believes the information tends to show wrongdoing.

The evidence does not have to be to a standard that is admissible in court. A PID does not have to identify a particular person. A PID may also be about a matter that occurred before the commencement of the PID Act, events that are or may be happening or events that will or may happen.

In making a PID, the discloser should provide as much relevant information and documentation as possible to enable the matter to be dealt with expediently. The discloser is encouraged to provide contact details for follow up action however, PIDs can be made anonymously. A person who wishes to remain anonymous may provide an alias and contact point instead.

It is the Board’s policy that employees are required to report wrongdoing of which they become aware. This includes wrongdoing in another public sector entity.

False or Misleading Information

It is an indictable (criminal) offence for a person to intentionally give false or misleading information intending it to be treated as a PID.

Public Interest Disclosure Contact Officer

The Board’s PID contact officer is the Corporate Services Manager. The Corporate Services Manager has been delegated responsibility to assess and deal with PIDs, as well as establish reasonable procedures to protect employees who make PIDs from reprisals. This responsibility is also sub-delegated to the Senior Legal Officer, during the absence or unavailability of the Corporate Services Manager. The Senior Legal Officer will also provide information and assistance to any person seeking to make a PID.

Action Following Receipt of a PID

The action taken by the Board in dealing with a PID may vary having regard to the circumstances of the PID. However, in general terms, upon receipt of a PID the Board (through the delegated officer) will take the following actions:

• 1. Receive the PID if it is the Proper Authority to do so.
  2. Not investigate or deal with a PID if:
     1. the PID does not raise a reasonable suspicion of wrongdoing
     2. the substance of the PID has already been investigated or dealt with by another appropriate process
     3. the Board reasonably considers that the PID should be dealt with by another appropriate process
     4. the age of the information the subject of the PID makes it impracticable to investigate
     5. the Board reasonably considers that the PID is too trivial to warrant investigation and that dealing with the PID would substantially and unreasonably divert Board resources, or
     6. another entity that has jurisdiction to investigate the PID has notified the Board that investigation of the PID is not warranted.

Note: The Board will provide a discloser with reasons, in writing, for its decision not to investigate or deal with a PID. The discloser may apply to the Board for a review of this decision within 28 days of receiving such reasons.

• 1. If the PID does raise a reasonable suspicion of wrongdoing, the delegated officer will decide whether it should arrange for the PID to be dealt with by the Board or whether it is more appropriate to refer it to another public sector entity which has the power to investigate or remedy the matter that is the subject of the PID (for example, the CCC in cases involving corrupt conduct). The Board may refer the PID to another public sector entity if the PID is about the conduct of another public sector entity, a public officer of that entity or the conduct of an entity (including the Board), or another matter, that another public sector entity has the power to investigate or remedy.
  2. Before referring a PID to another public sector entity, the delegated officer will consider whether there is an unacceptable risk that a reprisal would happen because of the referral. In considering whether there would be an unacceptable risk, the delegated officer must, if practicable, consult with the discloser. The delegated officer will not refer a PID to another public sector entity if it considers there is an unacceptable risk.
  3. Consider (by conducting a risk assessment) whether any action should be taken to protect persons from Reprisals that are, or may be taken against them.
  4. Take appropriate action to deal with the PID.
  5. Keep in regular contact with the discloser and advise the following in writing:
     1. that the PID has been received by the Board
     2. a description of the action proposed to be taken, or taken, by the Board in relation to the PID
     3. the likely timeframes for dealing with the PID
     4. the discloser’s involvement in Board enquiries
     5. the protections under the PID Act that will apply to the discloser
     6. the importance of maintaining confidentiality (except when seeking support from the nominated PID Support Officer)
     7. that the Board will keep the discloser’s information confidential, except where disclosure is permitted under the PID Act
     8. how the discloser will be updated on progress and outcomes
     9. who to contact if they want further information or are concerned about reprisals
     10. if action has been taken by the department in relation to the PID, a description of the results of the action.

Note: Information need not be given if the information would be likely to adversely affect anybody’s safety; the investigation of an offence or possible offence; or necessary confidentiality about an informant’s existence or identity.

• 1. Keep records of all PIDs made, specifically:
     1. the name of the person making the PID, if known
     2. the information disclosed
     3. the name of the Member of the Legislative Assembly who referred the PID, if applicable
     4. any action taken on the PID
     5. any other information required under the Public Interest Disclosure Standard (Queensland Ombudsman).
  2. Provide advice and support to any person who wants to make or who makes a PID.
  3. Provide statistical information on PIDs to the Queensland Ombudsman (the oversight agency).

Risk Assessment

As soon as possible after receiving a PID, the Board will determine the level of protection and support appropriate for a discloser by conducting a risk assessment of a reprisal to the discloser and others associated with the discloser (including those who may wrongly be suspected of being a discloser). The potential consequences of reprisals will also be considered.

Relevant protective measures will be put in place that are proportionate to the risk of reprisal, and the potential consequences of a reprisal. If the risk is assessed as sufficiently high, a protection plan will be developed (in consultation with the discloser and other stakeholders as appropriate). When assessing the risk, an assessment of the discloser’s need for support will also be conducted.

If it is determined that a discloser will require support, the discloser will be provided with information regarding the support and protections available.

Protection Afforded to Disclosers

A person is not liable, civilly, criminally or under an administrative process (including disciplinary action), for making a PID. In particular:

• 1. in a proceeding for defamation the person has a defence of absolute privilege for publishing the disclosed information and
  2. if the person would otherwise be required to maintain confidentiality about the disclosed information under an Act, oath, rule of law or practice, the person does not contravene the Act, oath, rule of law or practice for making a PID.

However, a person’s liability for his/her own conduct is not affected only because the person discloses it as a PID.

The PID Act does not protect a person who makes a PID to someone or some entity other than to a Proper Authority. For example:

• 1. disclosure to a journalist prior to making a PID to a Proper Authority would mean that the person would not receive protection and
  2. a person who makes a PID to the Board about the conduct of an employee of a different public sector entity would not receive protection.

A person must not take a reprisal. An employee who takes a reprisal commits an indictable (criminal) offence. A person who takes a reprisal is liable in damages to any person who suffers detriment as a result. Any person who suffers detriment may commence proceedings in a court for damages. The Workers’ Compensation and Rehabilitation Act 2003 does not apply to proceedings for damages in relation to the taking of a reprisal.

The Board may be vicariously liable for reprisal action taken by an employee, and proceedings in a court for damages may be taken against an employee who takes reprisal action and/or the Board. It is a defence to a proceeding for damages if the Board can demonstrate, on the balance of probabilities, that it took reasonable steps to prevent the employee from taking a reprisal.

A person who suffers a reprisal may make a complaint under the Anti-Discrimination Act 1991 about a reprisal as an alternative to commencing proceedings in a court for damages.

Proceedings for damages or a complaint under the Anti-Discrimination Act 1991 about a reprisal may be made even if a prosecution in relation to the reprisal has not been brought, or cannot be brought.

Public Interest Disclosure Support Officer

The Board will provide support and assistance as appropriate to people who make a PID through the Board’s PID Support Officer who is the Senior Registrations Officer. Any employee who has made, or wishes to make, a PID and alleges or suspects a reprisal is encouraged to contact the PID Support Officer.

Reasonable Management Action

Nothing in the Public Interest Disclosure Act 2010 is intended to prevent a manager from taking reasonable management action in relation to an employee who has made a PID. However, a manager may take reasonable management action in relation to an employee who has made a PID only if the manager’s reasons for taking the action do not include the fact that the person has made the PID.

Rights of Employees Subject to a PID

An employee, in respect of whom a complaint has been made, is entitled to:

• 1. the presumption of innocence
  2. the right to advice and support
  3. the application of the principles of procedural fairness, including:
     1. the provision of the particulars of the complaint/allegation
     2. the opportunity to be “heard” by an unbiased decision-maker.

Support for Employees Subject to a PID

Employees who are the subject of a PID may seek assistance from their employee association (i.e. union, if a member) or may engage their own private legal representation. An employee may also utilise the free professional counselling services offered by the Department of Housing and Public Works’ Employee Assistance Service.

The State will accept responsibility for claims against State employees who have diligently and conscientiously endeavoured to carry out their duties pursuant to section 26C of the Public Service Act 2008.  The Boards indemnity policy (approved 12 May 2021) applies to claims against Board employees.

Confidentiality

An employee who gains confidential information because he or she receives a PID or is involved in dealing with a PID must not make a record of the information, or intentionally or recklessly disclose the information to anyone, other than:

• 1. for the Public Interest Disclosure Act 2010
     
  2. to discharge a function under another Act including, for example, to investigate something disclosed by a PID
  3. for a proceeding in a court or tribunal
  4. if the person to whom the confidential information relates consents in writing to the making of the record or disclosure of the information
  5. if the employee cannot reasonably obtain the consent of the person to whom the confidential information relates and making the record or disclosing the information is unlikely to harm the interests of the person to whom the confidential information relates and is reasonable in all the circumstances
  6. if the person reasonably believes that making the record or disclosing the information is necessary to provide for the safety or welfare of a person or
  7. if authorised under a regulation or another Act.

In certain circumstances, natural justice may require a person to disclose information to a person whose rights would otherwise be detrimentally affected. The identity of the discloser may only be disclosed if it is essential to do so under the principles of natural justice and it is unlikely that a reprisal will be taken against the discloser because of the PID.

Making a record of confidential information or disclosing information to anyone (other than for the reasons noted above) is an offence.

Approval

This procedure is endorsed by the Registrar and was approved by the Board via flying minute.

 

Date: 21 June 2021