The Anonymous Complaints Minefield: Privacy, Child Protection and Whistleblowing

Published
05 March 2020

Many of us grew up in an environment where anonymous complaints or information providing were seen as unfounded rumours, probably malignant and put about by individuals who did not want to be held accountable. We only need to consider the average political campaign. However, over the last few years this has taken a rather different twist. Evidence from the Royal Commission into Institutional Responses to Child Sexual Abuse exposed many instances of children and young people being too afraid to complain, or if they did complain, they were ignored or even worse, they and their families were persecuted for complaining. As a parent, many of us would also have had second thoughts about raising critical issues (a complaint) with a school, concerned that there could be repercussions against our child. The issue was not lack of accountability in putting forward an anonymous complaint but legitimate fear of detriment.

So, should a school allow anonymous complaints and spend time investigating them?

 

School Registration Requirements

Non-government schools in all states and territories are required to have a complaints mechanism that enables students and members of the school community to raise concerns. With the exception of the recent registration changes in Western Australia, those requirements do not usually specify or provide guidance on the form that those mechanisms should take. South Australia’s Evidence Guide to the school registration standards is fairly typical and only requires that a school has policies and procedures for handling complaints from students, parents, caregivers and the community. The Victorian Guidelines to the Minimum Standards and Requirements for School Registration have the same requirement, adding that the complaint mechanism must be accessible and give the regulator the power to require the school to provide information about any complaint made about the school and how the school responded.

When it comes to specific requirements on how to handle complaints, Western Australia is both the exception and the harbinger of things to come nationally. Standard 9.1 of the WA Registration Standards for Non-Government Schools, which came into effect in January this year, requires a school to have and implement a complaints handling system that satisfies each of the key action areas of Principles 6 and 9 of the National Child Safe Organisation Principles. In addition to having a complaints procedure which specifies the roles and responsibilities of staff and the school in investigating and assessing complaints, it must ensure that complaints, concerns and safety incidents are analysed to identify causes and systemic failures so as to inform continuous improvement. Under Principle 9 of the National Principles for Child Safe Organisations, the findings of relevant reviews are then to be reported to staff and volunteers, community and families and children and young people.

While having an accessible complaints system is mandated in most jurisdictions, there is no explicit requirement that it must be accessible to anonymous complainants.

 

Whistleblower Protections

A recent addition to the minefield of anonymous complaints is the complex whistleblower provisions under the Corporations Act 2001 (Cth)– Part 9.4AAA Protection for Whistleblowers. The legislation allows for complaints to be made anonymously, however the protections for whistleblowers only come into play if:

  • the disclosure is about a disclosable matter – it relates to some kind of misconduct or improper state of affairs or circumstances relating to the school, its staff, or activities, and is not about a personal work-related grievance unrelated to systemic issues
  • the whistleblower is within the list of individuals who are covered by the Act’s whistleblower protections (Eligible Whistleblowers) – which in the school context means that they are a current or former member of the governing body, employee, volunteer, or other service provider, or a member of their families
  • the individual who receives the disclosure is either an Eligible Recipient – in the school context this would mean a senior manager, a director/governing body member, or a person authorised by the school to receive whistleblower disclosures or the school’s auditors — or one of the designated regulators.

As an aside, it should be noted that students and parents who do not fit within one of the categories of an Eligible Whistleblower (for example the parent is not or has not ever been a volunteer for the school) are not eligible for the statutory whistleblower protections.

However, the very obvious question here is that if the complaint (or disclosure) is made by an anonymous individual, how can it be determined whether they will come within the eligibility criteria and hence be protected? The whistleblower regulator, the Australian Securities and Investments Commission (ASIC), issued a Regulatory Guide on Whistleblower Policies (RG270) which provides some clarity on how it interprets the legislation as well as guidance on good practice.

While not all schools are required to have a whistleblower policy, RG270 provides sensible guidance on dealing with disclosures for the large number of schools that must comply with the whistleblower protections. RG270 advises that a whistleblower policy should include a suggestion that a discloser who wishes to remain anonymous should maintain ongoing two-way communication with the entity, so that the entity can ask follow-up questions or provide feedback. This is also an option for inclusion in a complaint form. (The ability to maintain communication with anonymous whistleblowers is a very strong argument for using an external whistleblower service).

RG270 provides suggestions on how to protect a whistleblower’s anonymity and notes that the ability to investigate an anonymous disclosure depends on the whistleblower giving sufficient information about a disclosable matter to sustain an investigation. ASIC suggests, consistent with the purpose of the whistleblower legislation, that in circumstances where it is unclear whether a disclosure qualifies for protection, the organisation could elect to treat the whistleblower as though they were protected under the legislation and investigate the disclosure if there is sufficient information about the alleged misconduct. In terms of risk management this is probably a prudent way to proceed.

 

Privacy

Some degree of clarity in relation to anonymous complaints comes with the federal Privacy Act 1998 (Cth). Under Australian Privacy Principle (APP) 2, individuals must be given the option of dealing anonymously or by pseudonym with an APP entity such as a school, unless:

  • the entity is required or authorised by law or a court or tribunal order to deal with identified individuals, or
  • it is impracticable for the entity to deal with individuals who have not identified themselves.

While it may not be easy to deal with some anonymous complaints, and for some anonymous complaints it would be impracticable to deal with them at all, a school would be hard-pressed to argue that all anonymous complaints should be excluded on that basis.

Furthermore, when a school provides a complaint mechanism, it is actually soliciting the collection of personal information, which means APP 5 applies - the school should provide a “collection notice”. One of the requirements of the collection notice is that it must advise of the consequences of not providing certain information. In the context of a complaint procedure this would mean that if a complaint is made anonymously, then the school should state that it may prevent the school from conducting an appropriate investigation or reporting investigation findings to the complainant.

 

Risk Management

Notwithstanding all of the legal considerations set out above, perhaps the most sensible question to ask when an anonymous complaint is received is not “who made this complaint”, but “what is the substance of the complaint and what should we do about it?” There are greater risks in rejecting all allegations simply because they were made anonymously.

Without a doubt, an anonymous complaint can be vexatious or frivolous, or maliciously untrue. However, a complaint may be made anonymously because the complainant was seriously worried about retribution, or they may have had a valid concern but did not have the power to fully investigate, so did not wish to open themselves up to a possible defamation action. In both those circumstances very serious issues or concerns may be raised, including why a fear of retribution existed. If the school chooses not to seriously assess the complaint only because it is anonymous, then it may be failing to take action to stop or prevent serious misconduct or a situation that can pose a significant risk to the school’s community and reputation.

A risk-based approach should also be taken in relation to how much information is available to warrant further investigation. The first step when receiving any type of disclosure is assessing whether there is sufficient information in the complaint to warrant an investigation. The type and depth of the investigation will be a matter of balancing the potential seriousness of the matter raised if confirmed with how much effort should go into an investigation where little information has been provided.

Another point to consider is that a complaint, even an anonymous complaint, may only be the tip of the iceberg, and that for each person who complains, 10 people may agree with them but won’t actually complain. A complaint which may appear trivial may be a source of considerable irritation or anger to the complainant. And someone who doesn’t feel comfortable complaining to the school about a certain matter may nevertheless air those views on social media or to friends and colleagues. An anonymous complaint can be the early warning that members of the school community are not happy and thereby provide the school with an opportunity to investigate and take action.

The final point to note in terms of risk management is record-keeping. While the requirement to have a complaints register which records the complaints received and the action taken is not a common school registration requirement, this is the best evidence-based method for a school to identify concerns and analyse their significance and severity. Omitting anonymous complaints from these records would be to lose valuable information.

 

What Approach Should Schools Be Taking?

There are a number of boxes that must be ticked when receiving anonymous complaints: child protection considerations, school registration requirements, Privacy Act requirements, whistleblower laws and risk management.

It is clear from the Privacy Act APP 2 that anonymous complaints should be allowed. In addition, to address APP 5 requirements, complaint forms should include a statement that assessment and investigation of the complaint and reporting back on any findings are likely to be impeded if no name or contact details are provided. The same information should be provided if an anonymous complaint is received by phone.

Once an anonymous request has been received, the next step is to assess its substance to determine whether it warrants further action. The school is at liberty to stop the process at that point, but a record should be kept of the actual complaint to assist if further related complaints are received in the future. If the decision is not to proceed with an investigation, it would be prudent to keep a brief record of the reasons for doing so and a brief reason for the decision not to proceed, as this may be important if matters escalate in the future.

Any investigation should be based on a risk assessment of the potential seriousness of the matter should it be validated, balanced against the effort required to conduct an investigation. If the decision is made to conduct an investigation, a record, however brief should be made of the findings and what action, if any, is taken.

Finally, best practice is for the complaints register, including all anonymous complaints, to form a regular report to both the school’s management team, and a summary report for the school’s governing body.

Svetlana Pozydajew

Svetlana is a Senior Consultant at CompliSpace. She has over 20 years of experience in strategic and operational human resource management, occupational health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.