Public interest disclosures

Public interest disclosure policy

Barwon Water is a public body subject to the Public Interest Disclosure Act 2012 (“Act”). The purpose of the Act is to encourage and facilitate the making of disclosures of improper conduct by public officers and public bodies, including Barwon Water, its employees, officers and members.

Barwon Water is committed to the aims and objectives of the Act. It recognises the value of transparency and accountability in its administrative and management practices. It also supports the making of disclosures that reveal improper conduct.

Barwon Water does not tolerate improper conduct by the organisation, its employees, officers or members, nor the taking of reprisals against those who come forward to disclose such conduct.  It recognises the courage of persons who are willing to disclose improper conduct by the organisation or its members and staff, and is committed to protecting them against reprisals for coming forward.

What can disclosures be made about?

Disclosures may be made about improper conduct of a public body, such as Barwon Water or its employees, officers and members.  Disclosures may also be made about detrimental action taken (or suspected to be undertaken) in reprisal or in connection with a disclosure made about improper conduct.

The conduct or action being disclosed may have already occurred, still be occurring or is believed will occur.

The Act provides definitions about improper conduct and detrimental action. Information on accessing a copy of Barwon Water’s Public Interest Disclosure Procedures which sets out detailed information, including the definitions of those terms, can be found under ‘how to make a disclosure’, below.

Who can make a disclosure?

Any individual (not an organisation or company) may make a disclosure under the Act. The individual could be a person within Barwon Water or any member of the public. Individuals may also make a joint disclosure.

Disclosures may be made in a number of ways as set out in the Act, including anonymously, in writing or orally. An individual does not need to identify the person or body about whom the disclosure is made.

How to make a disclosure

Disclosures about Barwon Water and its members and staff should be made to the Independent Broad-based Anti-corruption Commission (“IBAC”). Barwon Water cannot receive disclosures under the Act. However, Barwon Water has established Public Interest Disclosure Procedures (“procedures”) as required by the Act to facilitate and encourage the making of disclosures.

The procedures contain information about who can receive disclosures about Barwon Water and its officers, and how to make disclosures to those bodies.  The procedures are available are available on the ‘procedures’ tab on this webpage.

Role of Barwon Water

It is important to note that the IBAC is not required to contact Barwon Water about any disclosure you make, so you should not discuss any disclosure you make to the IBAC with Barwon Water or any person in Barwon Water unless you have first obtained the permission of the IBAC to do so, or unless the IBAC has directed you to do so, or the IBAC has contacted Barwon Water to provide it with information in order to allow Barwon Water to provide you with any necessary welfare and support.

However, the Act provides circumstances in which you can contact Barwon Water’s Employee Assistance Program (“EAP”) and other support persons or organisations (such as your doctor or a trade union you are a member of) in order to seek assistance in connection with making a disclosure. More information about how to seek this support, and the role Barwon Water can play in supporting you, is set out in the procedures.

If you are unable or do not wish to access an electronic copy of the procedures available online, you can  inspect a copy at Barwon Water’s head office at 61-67 Ryrie Street, Geelong, or at our other regional offices by prior arrangement. Alternatively, contact us to request a hard copy.

Confidentiality

Barwon Water takes its obligations under the Act seriously. This includes the requirement to protect the identity of the individual making the disclosure and the matters disclosed. It is a criminal offence under the Act to disclose information connected with a disclosure made in accordance with the Act, including information which could lead to identifying a discloser. Penalties for breaching confidentiality obligations include significant financial penalties and imprisonment.

More information

Barwon Water has appointed its Company Secretary as the organisation’s Public Interest Disclosure Coordinator. This person is responsible for handling enquiries about Barwon Water’s obligations under the Act.

The Company Secretary may be contacted by email if you wish to obtain further information about Barwon Water’s public interest disclosures policy or procedures, or if you wish to arrange a confidential meeting to discuss any matters of concern.

If you wish to contact an alternative person to the Company Secretary, please contact the Deputy Company Secretary by email.

Staff are encouraged to raise any questions or concerns they have, and have the right to seek advice confidentially and anonymously.

For more information about public interest disclosures or the Victorian integrity system, visit visit the IBAC website.

More information about Barwon Water’s general complaints handling process can be found on the complaints and disputes page on this website. Alternatively, email Barwon Water’s Customer Liaison by email.

References

• IBAC: Guidelines for making and handling protected disclosures
• IBAC: Guidelines for public interest disclosure welfare management (PDF, 80 KB)

This policy was last updated January 2024.

Procedures for ensuring confidentiality and protecting disclosers under the Public Interest Disclosure Act 2012

These procedures have been published by Barwon Water in compliance with section 58 of the Public Interest Disclosure Act 2012, the Public Interest Disclosures Regulations 2019, and the Guidelines published by the Independent Broad-based Anti-corruption Commission, December 2019.

Abbreviations and key terms used in these procedures

The following abbreviations and key terms are used in these procedures:

• Act: Public Interest Disclosures Act 2012.
• discloser: A person who makes a disclosure that may be a PID.
• disclosure: Any complaint, concern, matter, allegation or disclosure (however described) that may be a PID.
• Guidelines: The Guidelines published by the IBAC under section 57 of the Act as at December 2019, also including the Welfare Management Guidelines.
• IBAC: Independent Broad-based Anti-corruption Commission.
• IBAC Act: Independent Broad-based Anti-corruption Commission Act 2011.
• investigating entity: Any one of the 8 bodies authorised to investigate a PDC, being the IBAC, the VO, the Chief Commissioner of Police, the VI, the Judicial Commission, the Chief Municipal Inspector; the Racing Integrity Commissioner and the Information Commissioner.
• Procedures: This version of the procedures of Barwon Water, as established under section 58 of the Act.
• Public Interest Disclosure (“PID”): Any complaint, concern, matter, allegation or disclosure (however described) made in accordance with Part 2 of the Act.
• Public Interest Complaint (“PIC”): A PID which has been determined and assessed by the IBAC to be a public interest complaint under sections 26, 31 or 31B of the Act.
• Regulations: Public Interest Disclosures Regulations 2019.
• VI: Victorian Inspectorate.
• VO: Victorian Ombudsman.

1. About these Procedures

Barwon Water is required to establish and publish procedures under section 58 of the Act and in accordance with the Guidelines of the IBAC published under section 57 of the Act.

These Procedures are a resource for disclosers and potential disclosers, whether an employee, officer or member of Barwon Water or an external member of the public; essentially, any individual who wants to find out how Barwon Water will manage their welfare if they make a disclosure. In addition, these procedures cover how Barwon Water will protect other people connected to a PID from detrimental action being taken against them in reprisal for a discloser making a PID. Such persons can include individuals who are the subject of PIDs and PICs; and others who are connected to disclosures, such as witnesses or persons cooperating with an investigation into a PIC.

These procedures form an essential part of Barwon Water’s commitment to the aims and objectives of the Act. It does not tolerate improper conduct by the organisation, its employees, officers and members, or reprisals against those who come forward to disclose such conduct.

Barwon Water recognises the value of transparency and accountability in its administrative and management practices. It is committed to leading from the top to demonstrate a workplace culture that proactively detects risks of corruption and supports individuals, including employees, making disclosures that reveal improper conduct and Barwon Water expressly encourages persons considering making a disclosure to come forward. Barwon Water is committed to taking all reasonable steps to protect people who make such disclosures from suffering any detrimental action in reprisal for making the disclosure. It will also afford natural justice to the person or body who is the subject of the disclosure and ensure as far as is possible that the confidentiality obligations protecting the identity and other information about disclosers and the subject of disclosures as set out in the Act are strictly complied with.

2. About the Act

The Act commenced operation on 10 February 2013. It replaced the provisions of the Whistleblowing legislation previously in operation in Victoria. It has been amended on a number of occasions, including in 2019 with effect from January 2020. This version of the Procedures takes into account all legislative amendments as at December 2019.

The purpose of the Act is to encourage and facilitate the making of disclosures of improper conduct and detrimental action by public officers and public bodies. It does so by providing certain protections for people who make a disclosure, or those who may suffer detrimental action in reprisal for making a disclosure. An essential component of this protection is to ensure that information connected to a PID, including the identity of a discloser and the contents of that PID, are kept strictly confidential.

PIDs may be made about almost all public bodies, their employees, staff and members, including Councils and Councillors, and public officers. Further information about who you can make disclosures about is available on the IBAC website and the Victorian Public Sector (VPSC) website.

Barwon Water is not a body that may receive PIDs under the Act. Therefore, if you wish to make a Disclosure about Barwon Water, or one of its employees, officers, or members (“staff”), please make that disclosure to the IBAC in accordance with its procedures and Guidelines (see 4.2 below for more information on how to contact the IBAC). The Act also allows PIDs about Barwon Water and its staff to be made to the VO and the VI.

3. Barwon Water’s internal arrangements for handling welfare management

Barwon Water supports a workplace culture where the right of any individual to make a PID is taken seriously.

Barwon Water will:

• ensure these procedures are accessible on its website, in hard copies on request, and easily available all staff and any individual in the broader community;
• not tolerate the taking of detrimental action in reprisal against any person for making a PID, and will protect such persons from such action being taken against them;
• afford natural justice to and treat fairly those who are the subject of allegations contained in disclosures;
• remind staff that they can seek advice about PID related matters confidentially and anonymously from the individuals appointed by Barwon Water, as specified in 3.2, below
• take the appropriate disciplinary and other action against any staff engaged in the taking of detrimental action;
• ensure that Barwon Water as an organisation handles the welfare management of persons connected with PID matters consistently and in accordance with its obligations under the Act, the Regulations, the Guidelines and these Procedures; and
• be visible, approachable, openly communicative and lead by example in establishing a workplace that supports the making of PIDs.

3.1 Employees, officers and members

Everyone at Barwon Water has an important role to play in promoting the purpose and functions of the PID regime. Staff are encouraged to raise matters of concern internally in relation to Barwon Water, including about any other staff. In particular, staff are encouraged to report known or suspected incidences of improper conduct or detrimental action in accordance with these procedures.

All staff must refrain from any activity that is, or could be perceived to be, victimisation or harassment of a person who makes a disclosure. Furthermore, they should protect and maintain the confidentiality of a person they know or suspect to have made a disclosure.

3.2 Public Interest Disclosure Coordinator and Officer

Barwon Water’s PID Coordinator has a central role in the way the organisation deals with all PID matters, and in particular for ensuring that the welfare of any persons connected with a PID is properly managed.

The PID Coordinator is:

• the contact point for general advice about the operation of the Act and for integrity agencies such as the IBAC;
• responsible for ensuring that Barwon Water carries out its responsibilities under the Act, any regulations made pursuant to the Act and any guidelines issued by the IBAC;
• Barwon Water’s chief liaison with the IBAC and any other investigating entities in regard to the Act;
• to take all necessary steps to ensure information received or obtained in connection with a disclosure, including the identities of the discloser and the person(s) to whom the disclosure relate, are kept secured, private and confidential at all times;
• responsible for arranging any necessary and appropriate welfare support for the discloser, including appointing a Welfare Manager to support a person entitled to be protected and to protect him or her from any reprisals; and
• to collate statistics required to be reported by Barwon Water in its annual reports under the Act.

The PID Coordinator appointed by Barwon Water is:

PID Coordinator: Company Secretary
email

If you have any concerns about contacting the PID Coordinator of Barwon Water, or wish to speak to an alternative contact at Barwon Water about PID matters, you can contact the PID Officer appointed by Barwon Water:

PID Officer: Deputy Company Secretary
email

The PID Officer is also available as an alternative contact to any individual who wishes to obtain more information about PIDs and how Barwon Water is committed to the aims and objects of the Act, and can remain the chosen support person in managing the welfare of a staff disclosers or staff who are the subject of a PID, or connected with the making or investigation of a PID.

4. Making a disclosure

4.1 What is a disclosure and who can make a disclosure?

Any individual, or a group of individuals¹ are encouraged to make disclosures about information that shows, or tends to show one or more of the following:

1. improper conduct of public bodies (including Barwon Water) or public officers (including Barwon Water staff); and
2. detrimental action taken by public bodies (including Barwon Water) or public officers (including staff of Barwon Water) in reprisal against a person for the making of a PID.

You can choose to make a disclosure anonymously under the Act and you do not have to refer to the Act or the protections in it for your disclosure to be treated as a PID or a PIC.

1. To receive the protections under the Act, PIDs may not be made by companies or businesses.  If a group of individuals are making a PID you should note that only the individual who makes the PID on behalf of all the others will receive the full protection of the Act in relation to that PID.  The protection the others in the group will receive is limited to confidentiality about their identity and any role they play in providing information, as well as against detrimental action if any is taken against them in reprisal for the disclosure that has been made.

4.2 How can a disclosure be made?

A PID must be made in accordance with Part 2 of the Act.

Part 2 of the Act permits disclosures to be made anonymously, orally or in writing, and need not necessarily identify the person or organisation complained about.

As noted earlier, the Act does not permit Barwon Water to receive PIDs.  If you wish to make a disclosure about Barwon Water or any of its staff, please make that disclosure directly to the IBAC, the VO or the VI.

The IBAC can be contacted in writing at:

IBAC
GPO Box 24234 or
Level 1, North Tower 459 Collins Street
Melbourne Vic 3000

The IBAC also provides an online form.

The VO can be contacted in writing at:

Victorian Ombudsman
Level 2, 570 Bourke Street
Melbourne VIC 3000

The VO also provides an online form.

4.3  What can a disclosure be made about?

A PID can be made about:

1. the improper conduct of public bodies or public officers; and/or
2. detrimental action taken in reprisal against a discloser

4.3.1 Improper conduct

Improper conduct is defined in the Act to mean conduct:

• of any person that:
  • adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body;
  • intended to adversely affect the effective performance or exercise of functions or powers by a public officer or public body and result in that person (or their associate²) obtaining a gain, benefit or entitlement³ they would not have otherwise obtained, irrespective of whether the public officer or public body engages in any corrupt conduct or other misconduct
• of a public officer or public body that:
  • constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body;
  • constitutes or involves knowingly or recklessly breaching public trust;
  • involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person;
  • is engaged in by the public officer or public body in their capacity as a public officer or a public body that constitutes any of the following:
    • a criminal offence;
    • serious professional misconduct;
    • dishonest performance of public functions;
    • an intentional or reckless breach of public trust;
    • an intentional or reckless misuse of information or material acquired in the course of the performance of the functions of the public officer or public body;
    • a substantial mismanagement of public resources;
    • a substantial risk to the health or safety of one or more persons; or
    • a substantial risk to the environment;

• that could constitute a conspiracy or an attempt to engage in any of the conduct referred to above.

Conduct that is trivial will not constitute improper conduct for the purpose of the Act.

4.3.2 Detrimental action

It is an offence under the Act for Barwon Water or any of its staff to take detrimental action against a discloser in reprisal for making a PID, or for cooperating in an investigation into a PID.

Detrimental action

Detrimental action as defined by the Act includes:

• action causing injury, loss or damage;
• intimidation or harassment; and
• discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action.

A person can have taken detrimental action without having taken the action itself, but just by threatening to take such action.  Further, the detrimental action need not necessarily have been taken (or threatened to be taken) against a person making a PID, but against any person connected with a PID.

Examples of detrimental action prohibited by the Act include:

• threats to a person’s personal safety or property, including intimidating or harassing a discloser or the discloser’s family or friends or otherwise causing personal injury or prejudice to the safety or damaging property of a discloser or the discloser’s family or friends;
• the demotion, transfer, isolation or change in duties of a discloser due to having made a PID;
• discriminating or disadvantaging a person in their career, profession, employment, trade or business; or
• discriminating against the discloser or the discloser’s family and associates in subsequent applications for promotions, jobs, permits or tenders resulting in financial loss or reputational damage.

Taken in reprisal for a public interest disclosure

The person (or the person incited to take detrimental action) must take or threaten the detrimental action, because, or in the belief that the:

• other person or anyone else has made, or intends to make the PID;
• other person or anyone else has cooperated, or intends to cooperate with an investigation of the PID.

2. Defined in section 4(2B) of the IBAC Act.

3. See s 4(1)(da)(i) – (iv) of the IBAC Act.

4.4 How your disclosure will be handled

As noted earlier, Barwon Water cannot receive PIDs under the Act.If Barwon Water receives a complaint, report, or allegation of improper conduct or detrimental action that it views to be a PID, it will advise the discloser to make their disclosure to the IBAC, the VO or the VI.

For more information about the IBAC and how it handles PIDs and PICs, refer to the article What happens to your complaint? on the IBAC website⁴.

or information about the VO and how it handles PIDs, refer to the article How does the Ombudsman handle a public interest disclosure? on the OV website⁵.

4. Last accessed 30 November 2021.

5. Last accessed 12 April 2023.

5. Welfare management

The protection of genuine disclosers who make PIDs about improper conduct or detrimental action is essential for the effective implementation of the Act.  The Act also extends the need for welfare management to people who have cooperated or intend to cooperate with an investigation of a PID (“cooperators”). Persons who are the subject of allegations are also entitled to be looked after.

Because Barwon Water cannot itself receive PIDs, it may not know that a person has made a PID.  Confidentiality obligations require a person who has made a PID not to discuss the matter with any other person except with an authorised investigating entity. Therefore, Barwon Water will only be made aware that a person requires protection under the Act if that information has been provided to Barwon Water by an investigating entity.  To ensure that you receive the protections you are entitled to under the Act, Barwon Water recommends you do not discuss the contents of, or the fact of your PID, except with permission of the investigating entity or in order to seek support or assistance in one of the ways outlined below in 6.3.

Once Barwon Water has been made aware of the identity of a discloser and any other relevant information about the PID, Barwon Water will keep all information it receives confidential, and will manage the welfare of any relevant persons in accordance with its obligations under the Act.

Barwon Water must, where it is aware of the identities of disclosers and cooperators, ensure they are protected from direct and indirect detrimental action being taken against them in reprisal for the PID⁶. Barwon Water will ensure its workplace culture supports disclosers and cooperators. Such support will extend to the relevant persons regardless of whether they are staff, or members of the public. However, different legislative responsibilities (including those external to the Act) apply to staff persons internal to the organisation, versus persons who may be clients, suppliers to or users of Barwon Water’s services.  These responsibilities derive from various legislative and administrative obligations to:

• ensure the health and wellbeing of employees of a public sector body under laws including those relating to Occupational Health and Safety, the Charter of Human Rights and Responsibilities Act 2006, the Public Administration Act 2004, and various Victorian Public Sector Codes of Conduct (as relevant); and
• comply with various relevant laws, policies and practices when making administrative and other decisions or taking particular actions affecting a customer, client or user of the public body’s services⁷.

Generally, for staff, Barwon Water will ensure a supportive work environment and respond appropriately to any reports of intimidation or harassment against them.  For external persons, Barwon Water will take reasonable steps to provide appropriate support.  Barwon Water will discuss reasonable expectations with all persons receiving welfare management in connection with a public interest disclosure.

6. The balance of this section of these procedures assume that the Barwon Water has been provided with the relevant information from one of the investigative entities such that it is aware of the identity of the persons requiring protection and is therefore able to comply with its requirements to manage the welfare of those persons.

7. Page 6, Guidelines for public interest disclosure welfare management (PDF, 80 KB) (last accessed 30 November 2021).

5.1 Support available to disclosers and cooperators⁸

Barwon Water will support disclosers and cooperators by:

• keeping them informed, by providing:
  • confirmation that the disclosure has been received, if the relevant investigating entity has provided this information to Barwon Water;
  • the legislative or administrative protections available to the person;
  • a description of any action proposed to be taken;
  • if action has been taken by Barwon Water, details about results of the action known to Barwon Water;
• providing active support by:
  • acknowledging the person for having come forward and that it took courage to do so;
  • assuring the discloser or cooperator that they have done the right thing, and Barwon Water appreciates it;
  • making a clear offer of support, including to appoint a support person, where possible, chosen by the discloser or cooperator;
  • assuring them that all reasonable steps will be taken to protect them;
  • giving them an undertaking to keep them informed as far as Barwon Water is reasonably able to;
• managing their expectations by undertaking an early discussion with them about:
  • what outcome they seek;
  • whether their expectations are realistic;
  • what Barwon Water will be able to deliver;
• maintaining confidentiality by:
  • ensuring as far as is possible that other people cannot infer the identity of the discloser or cooperator;
  • reminding the discloser or cooperator not to reveal themselves or to reveal any information that would enable others to identify them as a discloser or cooperator;
  • ensuring the security of allhardcopy and electronic records relating to the PID (see further below at 6.2.1);
• proactively assessing the risk of detrimental action being taken in reprisal (rather than reactively waiting for a problem to arise and a complaint to be made by the discloser or cooperator), that is, actively monitor the workplace, anticipating problems and dealing with them before they develop as far as is possible, including by preparing a risk management plan and ensuring that the discloser or co-operator is involved and kept informed of the plan;
• further protecting the discloser or cooperator by:
  • examining the immediate welfare and protection needs of the person and seeking to foster a supportive work environment;
  • listening and responding to any concerns the person may have about harassment, intimidation or victimisation in reprisal for their actions;
  • assessing whether the concerns the person may have about harassment, intimidation or victimisation might be due to other causes other than those related to the PID;
• preventing the spread of gossip and rumours about any investigation into the PID where Barwon Water is aware of any investigation being undertaken or about to be undertaken; and
• keeping contemporaneous records of all aspects of the case management of the person, including all contact and follow-up action, and ensuring the person is able to access such information as contained in the records as far as confidentiality obligations permit Barwon Water to provide such information to the person.

5.1.1. Appointment of a Welfare Manager

In appropriate circumstances, Barwon Water will appoint a suitable welfare manager to protect a discloser or a cooperator.  In most circumstances, a welfare manager will be more likely to be appointed:

• where Barwon Water considers there to be a real risk of detrimental action being taken against the discloser or co-operator, taking into account their particular circumstances; or
• if the discloser or co-operator believes on reasonable grounds that there are risks Barwon Water cannot otherwise appropriately protect him or her, and that a welfare manager is required to ensure their wellbeing; or
• a PID proceeds to being investigated as a PIC.

Each instance of a PID known by Barwon Water will be assessed on its own merits.

If appointed, the Welfare Manager will, in addition to providing the general support set out above at section 5.1:

• provide practical advice about the protections available to him or her;
• respond quickly and appropriately to any concerns of harassment, intimidation or victimisation in reprisal for making a disclosure;
• not divulge any details relating to the PID to any person other than the PID Coordinator or the PID Officer as the case may be;
• ensure all meetings are conducted discreetly to protect the person from being identified as being involved in the PID; and
• refer or offer to refer internal disclosers and cooperators to Barwon Water’s Employee Assistance Program (“EAP”) for further support and welfare assistance.

8. This section is adapted from resources of the Queensland Government as cited and drawn from p 7 of the IBAC’s Guidelines for public interest disclosure welfare management, ibid.

5.2 Welfare management of persons who are the subjects of public interest disclosures

Barwon Water will also meet the welfare needs of a person who is the subject of a public interest disclosure.  It is important to remember that until a PIC is resolved, the disclosure about the person is only an allegation.

Barwon Water will make a decision about whether or when the subject of a disclosure will be informed about a PID involving an allegation made against him or her.  It is possible that the subject of the disclosure may never be told about the disclosure if it is not determined to be a PIC, or if a decision is made to dismiss the disclosure.  This may also depend on the stage at which the relevant investigating entity actually informs Barwon Water of the identity of the subject of a disclosure.

The Act limits the disclosure of information about the content of an PID and the identity of the discloser to certain specified circumstances set out in Part 7 of the Act.   Barwon Water may give information about the PID to the subject of the PID if it is directed or authorised to do so by the authorised entity investigating the PIC, or for the purpose of taking action with respect to the conduct alleged, including disciplinary action.

Investigating entities may also inform the subject of a PIC in the course of their investigation for the purposes of conducting that investigation, or any actions that they propose to take as a result of the investigation.

5.2.1 Welfare services

A person the subject of a PID who is made aware of their status as such may have a welfare manager appointed by Barwon Water, or be referred to Barwon Water’s EAP for welfare assistance.  Alternatively, the PID Coordinator will provide support and advice to a person the subject of a disclosure, particularly in relation to their rights and obligations under the Act, these procedures, and any other relevant law or code of conduct. Barwon Water will consider each matter on a case by case basis, taking into account the information it has been provided by the investigating entity and the person’s particular circumstances.

5.2.2 Confidentiality

Consistently with Barwon Water’s confidentiality obligations under the Act as outlined in these procedures, the fact that a disclosure has been made, any information received from the IBAC or another investigating entity and the identities of persons involved will not be divulged.

Barwon Water will take all reasonable steps to ensure the confidentiality of the subject of a disclosure at all times.  Where the disclosure is dismissed or investigations do not substantiate the allegations made against the person, the fact that the investigation was undertaken, its results, and the identity of the person subject of the disclosure (to the extent that Barwon Water has been provided that information by an investigative entity) will still be kept confidential by Barwon Water.

For further information about the confidentiality obligations of Barwon Water and persons connected to a PID, also see Part 6 re Confidentiality, below.

5.2.3 Natural justice

Barwon Water will afford natural justice to the subject of a disclosure prior to any decision being made about the allegations.  If the matter has been investigated by an investigating entity, then that entity will be responsible for ensuring consultations with the subject include the provision of natural justice to him or her.  The IBAC has noted that affording a subject of a disclosure natural justice in this context means that if a decision is to be made about their conduct this person has the right to:

• be informed aboutthe substance of the allegations against them;
• be given the opportunity to answer the allegations before a final decision is made;
• be informed about the substance of any adverse comment that may be included in any report arising from an investigation; and
• have his or her defence set out fairly in any report.

5.2.4 If the allegations are wrong or unsubstantiated

Barwon Water will give its full support to a person who is the subject of a disclosure where the allegations contained in a disclosure are wrong or unsubstantiated.  In those circumstances, Barwon Water will ensure that there are no adverse consequences for this person arising out of the PID having been made.  This is particularly crucial in a situation where there has been publicly disclosed information identifying the subject, but also where such information has become well-known across Barwon Water and the subject is staff of Barwon Water.

Further, if the matter has been publicly disclosed by Barwon Water, the Managing Director will consider any request by that person to issue a statement of support setting out that the allegations were clearly wrong or unsubstantiated.

5.3 If detrimental action is reported

If any person reports an incident that may amount to detrimental action apparently taken in reprisal for being the subject of a PID, the Welfare Manager or PID Coordinator must record details of the incident and advise the person of their rights under the Act to make a new PID about that detrimental action to the IBAC, the VO or the VI.

All persons are reminded it is a criminal offence to take detrimental action against another person in reprisal for a PID under the Act.  The penalty for committing such an offence in contravention of the Act is a maximum fine of 240 penalty units ($44,381 from 1 July 2022 to 30 June 2023)⁹, two years imprisonment or both.

A discloser of a PID who suffered detrimental action as defined in the Act may also:

• take civil action against the person who took detrimental action against them and seek damages;
• take civil action against Barwon Water jointly and severally to seek damages if the person who took detrimental action against them took that action as staff of, or while acting as an agent of Barwon Water; and
• apply for an order or an injunction from the Supreme Court.

Disclosers who launch legal proceedings to claim compensation for injury, loss or damage suffered in reprisal for having made a PID will not have costs awarded against them, unless the their claim for compensation was vexatious, or the discloser did not conduct the litigation reasonably.

9. The rate for penalty units is indexed each financial year so that it is adjusted in line with inflation. The way that penalty and fee units are set and calculated is set out in the Monetary Units Act 2004. The current value of penalty units is published on the Victorian Department of Justice and Community Safety website.

5.4 Protections for persons making a PID

5.4.1 Part 6 protections available to disclosers

The Act protects disclosers of a PID by stating that in making the PID, the discloser:

• is not subject to any civil or criminal liability;
• is not subject to any administrative action (including disciplinary action) for making the PID;
• is not committing an offence against the Constitution Act 1975 or any other law that imposes obligations of confidentiality or otherwise restricts the disclosure of information;
• is not breaching any other obligation (made by oath, rule of law or practice) requiring him or her to maintain confidentiality; and
• cannot be held liable for defamation in relation to information included in a PID made by him or her.

The protections in Part 6 apply from the time at which the disclosure is made by the discloser.  They apply even if the authorised investigating entity has determined that the disclosure is not a PIC.

The protections also apply to further information relating to a PID made by the original discloser, if the further information has been provided, verbally or in writing, to any investigating entity investigating the PID

Sections 52 and 53 of the PD Act prohibits persons, including bodies and persons receiving information connected with an assessable disclosure from disclosing information connected with, or leading to the identification of a discloser.

Transfer of employees

An employee of Barwon Water who has made a public interest 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.

After making a disclosure an employee can be transferred internally to another part of Barwon Water, or to another public service body or public entity on similar terms and conditions of employment¹⁰. This can only happen if they request, or consent to, a transfer and the following other conditions apply:

• the head of Barwon Water has reasonable grounds to suspect detrimental action will be, is being, or has been taken against the employee;
• the head of Barwon Water considers that the transfer will avoid, reduce or eliminate the risk of detrimental action; and
• if transfer to another public body is proposed, the head of that other public body consents to the transfer.

The transfer can be temporary or permanent, and if the employee is moved to another public body, the employee’s service in the new body is regarded as continuous with their pre- transfer service.

5.4.2 Actions of the discloser constituting offences and leading to protections being lost

A discloser is not protected by the provisions of the Act if they commit an offence under the Act, as follows:

10.The terms “public service body” and “public entity” are as defined by sections 4(1) and 5 respectively, Public Administration Act 2004.  Barwon Water is a “public entity” pursuant to section 86 of the Water Act 1989 by virtue of section 5(1)(d)(iii), Public Administration Act 2004.

11.The rate for penalty units is indexed each financial year so that it is adjusted in line with inflation. The way that penalty and fee units are set and calculated is set out in the Monetary Units Act 2004. The current value of penalty units is published on the Victorian Department of Justice and Community Safety website..

5.4.3 Other limitations on protections afforded to disclosers

A discloser is not protected against legitimate management action being taken by Barwon Water in accordance with the Act.

In addition, although the discloser of a PID is not subject to criminal or civil liability for making the disclosure, the Act specifically provides that a person remains liable for their own conduct even though the person has made a disclosure of that conduct under the Act.  Therefore, the discloser will still be held liable for their own conduct that they disclose as part of making a PID.

If the person making the disclosure is implicated in the improper conduct or detrimental action that is the subject of the disclosure

Where a discloser is implicated in improper conduct, and an investigating entity has provided the necessary information to Barwon Water, Barwon Water will protect the discloser from reprisals in accordance with the Act, the Guidelines and these procedures.  Barwon Water acknowledges that the act of disclosing should not shield disclosers from the reasonable consequences flowing from any involvement in improper conduct.  However, in some circumstances, an admission may be a mitigating factor when considering disciplinary or other action.

Taking disciplinary or other action against a person who has made a PID invariably creates the perception that it is being taken in reprisal for the disclosure. The Managing Director will make the final decision on the advice of the PID Coordinator, PID Officer or Welfare Manager as to whether disciplinary or other action will be taken against a discloser.  Where disciplinary or other action relates to conduct that is the subject of the disclosure, the disciplinary or other action will only be taken after the disclosed matter has been appropriately dealt with.  In all cases where disciplinary or other action is being contemplated, any such action will not be taken without Barwon Water ensuring that:

• the fact that a person has made a PID is not a reason for Barwon Water taking the action against the employee;
• there are good and sufficient grounds that would fully justify action against any other person in the same circumstances;
• there are good and sufficient grounds that justify exercising any discretion to institute disciplinary or other action.

Barwon Water will take all reasonable steps to thoroughly document its decision-making process, including recording the reasons why the disciplinary or other action is being taken, and the reasons why the action is not being taken in retribution against the discloser for making the PID, so that it will be able to clearly demonstrate that the disciplinary or other action was taken for the appropriate and permitted reasons under the Act.

The discloser will be clearly informed of any action proposed to be taken, be afforded natural justice, and inform and be informed of any mitigating factors that have been taken into account.  Such communications with the discloser will be made in plain English and reasonable steps to provide appropriate support will be offered where appropriate.

6 Confidentiality

6.1 General obligation of confidentiality on Barwon Water and all individuals

Barwon Water will take all reasonable steps to protect the identity of the discloser and the matters disclosed by a discloser. Maintaining confidentiality in relation to PID matters is crucial, among other things, in ensuring reprisals are not made against a discloser.

Disclosers should consider whether it is in their best interests not to discuss any related matters other than with officers of the IBAC, another investigating entity, or other persons authorised by law.

6.2 Steps taken by Barwon Water to ensure confidentiality

6.2.1 Information management

Barwon Water will ensure all files, whether paper or electronic, are kept securely. Those files will be accessible only by the PID Coordinator, the PID Officer, and/or a Welfare Manager in any particular instance.

The Welfare Manager will not divulge any details of the disclosed matter to any person other than the PID Coordinator or an investigator appropriately authorised under the Act or the IBAC Act. All meetings between the relevant persons will be conducted discreetly to protect the confidentiality of the person making a PID.

All printed material will be kept in files that are clearly marked as Public Interest Disclosures Act matters, and warn of the criminal penalties that apply to any unauthorised access, use or divulging of information concerning a PID. These files will be stored in the secure safe under the control of the Company Secretary at Barwon Water’s Head Office at 61-67 Ryrie St, Geelong. The Company Secretary has access to the safe and is the only person with authority to access the safe.  Where the PID Officer appointed by Barwon Water is in receipt of hard copy material relating to, or about the PID Coordinator, those hard copy materials will be kept in a similarly secure safe under her direct and sole control.  No other person at Barwon Water, including the PID Coordinator, will have authority to access that other safe.

All electronic files will be stored in Barwon Water’s Electronic Content Management (ECM) system in a secured folder, only accessible by the PID Coordinator.  Electronic documents in the control of the PID Officer and which relate to concerns or allegations involving the PID Coordinator will be stored on the ECM in a different secured folder which is only accessible by the PID Officer.

Barwon Water will not use unsecured email to transmit documents in connection with a disclosure. It will also ensure all telephone calls and meetings in connection to disclosures are conducted privately and in the strictest of confidence. Hard copy documents will not be delivered by internal mail to a generally accessible area and, where possible, will be delivered in person by the PID Coordinator or the PID Officer as appropriate in each case.

Barwon Water will ensure that its electronic records are audited so that it can be seen by whom, when and for how long any records are accessed and for what purpose.  Barwon Water will proactively implement a risk management plan so that it can detect any unauthorised access or use of its data, including to notify the IBAC or the Office of the Victorian Information Commissioner if required, and any individuals affected by that breach.

6.2.2 Exemption from the Freedom of Information Act 1982 (“FOI Act”)

The FOI Act provides a general right of access for any person to seek documents in the possession of Barwon Water.

However, the Act provides that certain information related to PIDs as contained in documents in the possession of Barwon Water will be exempt from the application of the FOI Act.

Such information excluded from the operation of the FOI Act includes:

• any information relating to a disclosure made in accordance with the Act; and
• any information that is likely to lead to the identification of a discloser.

6.2.3 Training for all staff

Barwon Water will:

• ensure that staff have access to a copy of these procedures in hard or soft copy;
• incorporate into its induction procedures training about Barwon Water’s general obligations under the Act and the rights and obligations of all staff;
• introduce periodic refresher courses for existing staff about their rights and obligations under the Act;
• provide additional training and assistance to:
  • any staff of Barwon Water with specific responsibilities and functions to handle and manage PIDs under the Act, including the PID Coordinator, the PID Officer and people who may be involved in welfare management; and
  • any staff with functions and duties under the FOI Act or with responsibilities for information management, to ensure that no prohibited information is disclosed under the Act and to ensure there is appropriate liaising with the staff of the IBAC or other investigating agencies where required in response to a request for access under the FOI Act.

6.3 Limited exceptions to confidentiality obligations as permitted by the Act

The Act makes it a crime to disclose information connected with a PID. However, the Act provides limited exceptions to the general prohibition on disclosures, including in the following circumstances:

• where disclosure is required by Barwon Water (or one of its officers) in the exercise of functions of Barwon Water under the Act;
• where necessary for the purpose of the exercise of functions under the Act;
• by an investigating entity for the purpose of exercising that entity’s functions under the IBAC Act;
• in accordance with a direction or authorisation given by the investigating entity that is investigating the disclosure;
• to the extent necessary for the purpose of taking lawful action in relation to the conduct that is the subject of an assessable disclosure including a disciplinary process or action;
• where the IBAC or the VI has determined that the assessable disclosure is not a PID and the discloser or Barwon Water subsequently discloses the information;
• when an investigating entity had published a report to Parliament, in accordance with its confidentiality obligations;
• for the purpose of obtaining legal advice in relation to matters specified in the Act;
• in order to enable compliance with the Act:
  • where a person does not have a sufficient knowledge of the English language, to obtain a translation from an interpreter;
  • where a person is under 18 years of age, to a parent or guardian;
  • where a person is suffering a disability and is not able to understand, to an independent person;
• to any of the following for the purpose of the discloser being able to seek advice or support in relation to his or her assessable disclosure:
  • a registered health practitioner;
  • a trade union of which the discloser is a member;
  • an EAP;
  • WorkCover for the purpose of making a workers’ compensation claim;
  • applying to the Fair Work Commission.
• in disciplinary actions or legal proceedings for certain offences in the Act or other specified Acts.

The Act prohibits the inclusion of any details, in any report or recommendation, that is likely to lead to the identification of a discloser. The Act also prohibits the identification of the person who is the subject of the disclosure in any particulars included in an annual report or any reports to Parliament.

6.4 Penalties apply for unauthorised disclosure of information

The Act contains a number of offence provisions relating to unauthorised disclosure of information by either disclosers or persons who have received disclosures.  The relevant penalties include imprisonment, financial payments or both.

The criminal offences set out in the Act relating to confidentiality include:

7 Collating and publishing statistics

Barwon Water is required to publish information about how these procedures may be accessed in its annual reports.

8 Review

These procedures will be reviewed biennially or upon significant change to the Act, the Regulations or the Guidelines to ensure they comply with the requirements of the Act.

In addition, Barwon Water is committed to the continuous improvement and monitoring of the strength of its integrity framework and how these Procedures can assist. Barwon Water welcomes feedback from its staff, members and the general public about the accessibility and effectiveness of these procedures and its integrity framework generally. To provide your comments or complaints, please contact us.

These procedures last updated January 2024