Police ‘Whistleblowing’ – A discussion on reporting misconduct, the potential repercussions, and the legislated protections

A common complaint I hear from sworn and unsworn Queensland Police Service members, is that they have been targeted after reporting misconduct, workplace bullying, or breaches of discipline involving their colleagues and/or members of management.  Not just targeted by colleagues, but also by the hierarchy who insists officers must comply with their legislated reporting obligations.

This is a situation nobody wants to be in, and anyone who has been there will tell you it is a difficult an unpleasant place to be.  You are caught between your own values, integrity, and ethics, and knowing that reporting such conduct could result in forever being labelled as a ‘dog’. Then there’s the risk of being subjected to targeted reprisals, victimisation and unlawful adverse action.  This situation is even more difficult in smaller stations where officers live together in barracks, or largely rely upon each other for social company.

Members have a legislated obligation to report such conduct in accordance with s.7.2 Police Service Administration Act 1990.  The section states that if an officer or staff member ‘knows or reasonably suspects’ that the conduct has occurred, it is their duty to report this ‘as soon as reasonably practicable’.  

My take on this, is that members should have some evidence on which to base a report of misconduct or similar, before reporting it.  One cannot form a ‘reasonable suspicion’ without first ascertaining some basic facts. 

When a statute prescribes that there must be “reasonable grounds” for a person to believe or suspect certain matters, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at 112. What constitutes reasonable grounds for forming a suspicion or belief must be judged against “what was known or reasonably capable of being known at the relevant time” (Ruddock v Taylor [2005] HCA 48.

And in complying with the ‘as soon as reasonably practicable’ element, I believe it is also reasonable for officers to take the time to seek advice (internally and/or externally), and sometimes even seek psychological support before reporting misconduct. After all, it’s a huge thing to have to do.  Members can’t be expected to run off and make reports (that have potential to ruin careers) on a whim.  

Disappointingly though, in some cases where a member may not immediately report alleged conduct they become aware of, before they know it they become a subject member for ‘failing to report misconduct’. This has been the case even when the conduct is in fact reported, but there has been some delay in doing so.  Meanwhile, the person alleged to have committed the misconduct is at times forgotten while the organisation turns it’s focus to the ‘whistleblower’.  This is hardly encouraging or supportive, and in my view this only acts as deterrent for members to report the conduct at all. The organisation should have an appreciation for the difficulties officers face, and even if the conduct isn’t reported immediately, those who make reports should be both supported and protected.

Whilst there are a number of legislated protections available to those who have the integrity and the moral compass to speak up about these matters, they are not always enforced to such a degree that members who report misconduct are actually supported and protected. I’ve lost count of the amount of times I’ve seen this happen. 

In an organisation where members have an obligation to report, more needs to be done to ensure they don’t become targets for doing so.  Some who do the right thing are even pushed to the point of sustaining a psychological injury, despite a number of ‘protections’ that are afforded to those who report misconduct.  Some of those protections are listed below, and are good to have knowledge of if yourself or someone you know is being victimised or otherwise targeted;

POLICE SERVICE ADMINISTRATION ACT 1990 (QLD)

Section 7.3 Police Service Administration Act 1990 – Offence of victimisation

(1) A person who—
(a) prejudices, or threatens to prejudice, the safety or career of any person;
(b) intimidates or harasses, or threatens to intimidate or harass any person;
(c) does any action that is, or is likely to be, to the detriment of any person;
because the person referred to in paragraph (a) , (b) or (c) , or any other person, has complied with section 7 .2 by performing the duty therein prescribed commits an offence against this Act.
Penalty—
Maximum penalty—100 penalty units.

PUBLIC INTEREST DISCLOSURE ACT 2013 (QLD)

Section 10 – Protection of disclosers
(1) If an individual makes a public interest disclosure:
(a) the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the public interest disclosure.

(2) Without limiting subsection (1):
(a) the individual has absolute privilege in proceedings for defamation in respect of the public interest disclosure; and
(b) a contract to which the individual is a party must not be terminated on the basis that the public interest disclosure constitutes a breach of the contract.

Section 13 -What constitutes taking a reprisal

(1) A person (the first person) takes a reprisal against another person (the second person) if:
(a) the first person causes (by act or omission) any detriment to the second person; and
(b) when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure; and
(c) that belief or suspicion is the reason, or part of the reason, for the act or omission.

(2) Detriment includes any disadvantage, including (without limitation) any of the following:
(a) dismissal of an employee;
(b) injury of an employee in his or her employment;
(c) alteration of an employee’s position to his or her detriment;
(d) discrimination between an employee and other employees of the same employer.

(3) Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.

Section 19 – Offences

Taking a reprisal
(1) A person commits an offence if the person takes a reprisal against another person.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the other person made, may have made or intended to make a public interest disclosure.

Threatening to take a reprisal
(3) A person (the first person) commits an offence if:
(a) the first person makes a threat to another person (the second person) to take a reprisal against the second person or a third person; and
(b) the first person:
     (i) intends the second person to fear that the threat will be carried out; or

     (ii) is reckless as to the second person fearing that the threat will be carried out.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(4) For the purposes of subsection (3), the threat may be:
(a) express or implied; or
(b) conditional or unconditional.

(5) In a prosecution for an offence under subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

Section 25 – Summary: What is a Public Interest Disclosure
Broadly speaking, a public interest disclosure is a disclosure of information, by a public official, that is:
• a disclosure within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (referred to as “disclosable conduct”); or
• a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
• a disclosure to anybody if there is substantial and imminent danger to health or safety; or
• a disclosure to an Australian legal practitioner for purposes connected with the above matters.
However, there are limitations to take into account the need to protect intelligence information.

Further explanatory provisions are contained within ss.26 – 29 of the Act.

INDUSTRIAL RELATIONS ACT 2016 (QLD)

Section 282 – Meaning of adverse action
(1) “Adverse action” is taken by an employer against an employee if the employer—
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.

(2)”Adverse action” is taken by a prospective employer against a prospective employee if the prospective employer—
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

(3) “Adverse action” is taken by an employee against an employer if the employee—
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.

(4) “Adverse action” is taken by an industrial association, or an officer or member of an industrial association, against a person if the association, or the officer or member of the association—
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or
(c) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to an amount legally owed to the association by the member).

(5) “Adverse action” includes—
(a) threatening to take action covered by subsections (1) to (4); and
(b) organising to take action covered by subsections (1) to (4).

(6) “Adverse action” does not include action that is authorised under—
(a) this Act or any other law of the State; or
(b) a law of the Commonwealth.

(7) Without limiting subsection (6) ,
“adverse action” does not include an employer standing down an employee who is engaged in protected industrial action and employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

Section 284 – Meaning of workplace right
(1) A person has a “workplace right” if the person—
(a) has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
(b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
(c) is able to make a complaint or inquiry—
     (i) to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
     (ii) if the person is an employee—in relation to his or her employment.

(2) In this section—
“industrial body” means—
(a) the commission; or
(b) the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.

Section 285 – Protection
(1) A person must not take adverse action against another person—
(a) because the other person—
     (i) has a workplace right; or
     (ii) has, or has not, exercised a workplace right; or
     (iii) proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note— This subsection is a civil penalty provision.

(2) A person must not take adverse action against another person (the “second person” ) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person’s benefit or for the benefit of a class of persons to which the second person belongs.
Note— This subsection is a civil penalty provision.

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