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Public Interest Disclosure Procedures

Introduction

The Public Interest Disclosure Act 2013 (PID act) requires the principal officer of an agency to establish procedures for facilitating and dealing with public interest disclosures relating to the agency. The principal officer may delegate any of their functions or powers to a public official who belongs to their agency.

The purpose of the PID Act

The PID Act’s purpose is to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector and to promote the integrity and accountability of the Commonwealth public sector by:

  • encouraging and facilitating the disclosure of information of suspected wrongdoing in the public sector
  • ensuring that public officials who make public interest disclosures are supported and protected from adverse consequences, and
  • ensuring that disclosures are properly investigated and dealt with.

What is a Public Interest Disclosure?

A public interest disclosure may be an internal disclosure, a legal practitioner disclosure, an external disclosure or an emergency disclosure. If a person makes a disclosure except in these circumstances, they are not protected from the consequences of breaching any privacy or confidentiality requirements that apply to the disclosed information.

An internal disclosure is the most common type of disclosure under the PID Act. To make an internal public interest disclosure, the person disclosing a suspected wrongdoing must:

  • be a current or former public official (or deemed to be a public official)
  • make their disclosure to the correct person within the OAIC (their supervisor or an authorised internal recipient), and
  • provide information that they believe tends to show, on reasonable grounds, disclosable conduct within the OAIC or by a public official.

In limited circumstances a public official may disclose such information to a person outside government. They can also make a disclosure to a legal practitioner for the purposes of getting advice about making one of the other forms of public interest disclosure. Further information about these disclosures can be obtained from the Commonwealth Ombudsman’s website.

Who can make a Public Interest Disclosure?

A person must be a current or former employee of the OAIC to make a public interest disclosure ie a public official.

An authorised officer may deem an individual to be able to make a disclosure if they reasonably believe the individual has information about wrongdoing and propose to make a disclosure.

All public officials have an obligation to report serious wrongdoing by another public official in the course of, or in connection with, their APS employment. Public officials must make any report on the basis of information that they believe on reasonable grounds may provide evidence of behaviour that is disclosable conduct.

What is disclosable conduct?

In summary, disclosable conduct is conduct by an agency, a public official or a government contractor that:

  • contravenes a law
  • perverts the course of justice
  • is corrupt
  • is an abuse of public trust
  • results in wastage of public money or property
  • unreasonably endangers health and safety or endangers the environment, and
  • is maladministration, including conduct that is unjust, oppressive or negligent.

How to make a Public Interest Disclosure

A disclosure must be made to an appropriate person in order to gain the protections available under the PID Act. The PID Act focuses on the reporting and investigating of wrongdoing within government (internal disclosures), but allows for reporting outside government in specified circumstances.

Internal disclosure to the agency

An internal disclosure attracts the protections of the PID Act for the discloser and brings into play obligations for the OAIC and the official who receives it.

Making a disclosure internally gives the OAIC the chance to investigate the matter and remove any danger or correct any wrong practices as quickly as possible.

A public official can make an internal disclosure to their supervisor or an authorised officer in:

  • their current agency
  • the agency to which they previously belonged, or
  • the agency to which the disclosure relates.

Who is an authorised officer for the OAIC?

Authorised officers for the OAIC are the Australian Information Commissioner (i.e. the agency head) and officers that the Australian Information Commissioner appoints as authorised officers under the PID Act.

The following officers have been appointed as authorised officers:

  • Deputy Commissioner, Angelene Falk
  • Assistant Commissioner, Andrew Solomon
  • Legal Director, Caren Whip

Making an internal disclosure to a supervisor

A supervisor who receives a disclosure from someone they manage or supervise is obliged to give the information to an authorised officer as soon as reasonably practical. The supervisor’s obligation applies as soon as the supervisor has reasonable grounds to believe the information could concern one of more instances of disclosable conduct.

Disclosure to the Ombudsman or the IGIS

A public official can also make a disclosure to authorised officers of the Commonwealth Ombudsman, if they believe on reasonable grounds that it would be appropriate for the Ombudsman to investigate, or to the Inspector-General of Intelligence and Security (IGIS) if the matter involves an intelligence agency or intelligence-related information.

Complaint to the Ombudsman or the IGIS

A public official can make a complaint to the Ombudsman if they believe the agency that received their internal disclosure did not appropriately deal with it. If the disclosure relates to conduct of an intelligence agency, or an official belonging to an intelligence agency, the discloser may complain to the IGIS.

Responsibilities under the PID Act

Authorised officer responsibilities

Authorised officers are officers authorised the Australian Information Commissioner for the purposes of the PID Act. They have a range of decision-making, notification and other responsibilities under the PID Act, including:

  • receiving disclosures from current or former employees
  • receiving disclosures from other public officials about conduct concerning the OAIC
  • deeming a person to be a public official to allow them to make a public interest disclosure
  • confronting any workplace prejudices about making a disclosure
  • supporting an employee who they know has made a public interest disclosure and ensuring they are protected from reprisal
  • ensuring identified problems in the workplace are corrected, and
  • the keeping of all records provided and retaining copies of all notifications on an official file until the matter is completed.

All staff responsibilities

The PID Act requires all staff to use their ‘best endeavours’ to assist the Australian Information Commissioner in the conduct of an investigation, and to assist the Ombudsman or IGIS in their functions.

Staff are expected to share general responsibility for ensuring the system works effectively by:

  • reporting matters where there is evidence that shows or tends to show disclosable conduct
  • identifying areas where there may be opportunities for wrongdoing to occur because of inadequate systems or procedures, and proactively raising those with management
  • maintaining confidentiality whenever they are aware of the identity of a discloser, of anyone against whom an allegation has been made, or of anyone who has contributes to a disclosure investigation
  • supporting staff known to have made public interest disclosures, and
  • reporting to an appropriate person (a supervisor or authorised officer) any threats or reprisal action in relation to a disclosure.

Can a discloser be anonymous or use a pseudonym?

Disclosers do not have to identify themselves and may remain anonymous. Remaining anonymous means disclosers do not identify themselves at any stage to anyone, including the authorised officer who receives the disclosure. If the disclosure comes from an email address from which the person’s identity cannot be determined, and the discloser does not identify themselves in the email, it will be treated as an anonymous disclosure.

Alternatively, a discloser may wish to use a pseudonym throughout the PID process. This may be appropriate in circumstances where the discloser is identifiable to their supervisor or an authorised officer, but decides to hide their identity to others.

The PID Act requires agencies to keep a discloser’s identity confidential, subject to limited exceptions.

Protection for the discloser

A person who makes a disclosure about disclosable conduct in compliance with the PID Act will be covered by a range of legislated protections.

The PID Act provides for:

  • protection of the discloser’s identity
  • immunity from civil, criminal or administrative liability, and
  • support and protection from reprisal.

Even if the disclosed information turns out to be incorrect or unable to be substantiated, a discloser is protected by the PID Act, provided that they:

  • made their disclosure to an appropriate person under the PID Act
  • honestly believed on reasonable grounds that the information tended to show disclosable conduct, and
  • did not knowingly make false or misleading statements.

A person who makes a disclosure that is intentionally false or misleading will not gain the protections under the PID Act and making a disclosure does not automatically protect the discloser from the consequences of their own wrongdoing, including where they have been involved in the misconduct they are reporting.

The discloser’s obligations

Disclosers should not discuss the details of their disclosure with anyone who does not need to know about it. Discussions with people who are not performing a function under the PID Act will not be for the purposes of the PID Act, and would therefore not be covered by the protections in the PID Act.

All public officials must use their best endeavours to assist in any investigation. The discloser should therefore be prepared to provide further information to help the investigator, as this will often be required.

Initial assessment of the disclosure

When an authorised officer receives a disclosure, they must consider the disclosed information and decide whether it meets the criteria for an internal disclosure under the PID Act and whether they are an authorised internal recipient for that disclosure.

The PID Act requires the authorised officer to use their best endeavours to assess and allocate a disclosure within 14 days of receiving it, unless there is a good reason why they need further time.

If the authorised officer concludes that the disclosure does not meet the legislated requirement for an internal disclosure they must explain this to the discloser and explain any other options that they might have under Commonwealth law, for example, in relation to a workplace grievance.

Which agency should a disclosure be allocated to?

The authorised officer may allocate the handling of the disclosure to one or more agencies, including their own agency, the Ombudsman, the IGIS or a prescribed investigative agency.

In most cases, a disclosure should be allocated to the agency to which the disclosure relates. The principal officer for each agency is required to establish procedures for dealing with disclosures.

Requirement to investigate a disclosure

Once a disclosure had been allocated for handling under the PID Act, the principal officer is obliged to investigate it.

The PID Act requires the principal officer or their delegate to investigate a disclosure allocated to that agency for handling under the PID Act. The exception is where the principal officer or their delegate decides not to investigate the disclosure.

Agencies allocated a disclosure will inform the discloser about the principal officer’s powers to decide not to investigate the disclosure under the PID Act, or to stop a PID investigation that has started, or to investigate the disclosure under a separate investigative power.

The discloser will be given this information within 14 days after the disclosure is allocated to the agency if it is reasonably practicable to do so.

The investigator must advise the discloser of the estimated length of their investigation. The PID Act requires an investigation to be completed within 90 days of allocation. If a longer time is required, the agency will be required to seek an extension of time from the Ombudsman.

The principal officer or their delegate may decide not to investigate a disclosure or, during a PID investigation decide that it is inappropriate to continue the investigation. In these circumstances they must prepare written reasons for their decision and notify the discloser and the Ombudsman.

General principles of an investigation

The following general principles will apply to the conduct of investigations:

  • maintaining the confidentiality of the identity of the discloser
  • the investigation will be conducted in accordance with the principles of procedural fairness
  • a person who is the subject of the investigation will have an opportunity to respond or provide information
  • in the event that an interview is to be conducted, it will be conducted in a manner consistent with the Public Interest Disclosure Standard 2013 (or any other relevant standard made under the PID Act), and
  • a decision on whether evidence is sufficient to prove a fact will be determined on the balance of probabilities.

Standard of proof

The investigator must determine whether evidence in an investigation is sufficient to prove a fact. The standard of proof for determining whether evidence is sufficient to prove a fact must be determined on the balance of probabilities. A fact is taken to have been proven on the balance of probabilities if the investigator is satisfied it is more likely than not that the fact is true.

Evidence

The investigator must ensure that the evidence relied upon in an investigation is relevant. Relevant evidence is evidence that is of consequence to a matter under investigation and makes the evidence of a fact more probable or less probable than it would be without the evidence.

Conducting an interview

The investigator must ensure that, if a person is interviewed as part of an investigation, the interviewee is informed of the following:

  • the identity and function of each person conducting an interview
  • the process of conducting the investigation
  • the authority of the investigator under the PID Act to conduct the investigation, and
  • the protections provided under the PID Act.

The investigator must ensure that:

  • an audio or visual recording of the interview is not made without the interviewee’s knowledge
  • when the interview ends, the interviewee is given an opportunity to make a final statement or comment, or express a position, and
  • any final statement, comment or position by the interviewee is included in the record of interview.

Confidentiality and protection of disclosers

The identity of disclosers is protected and remains confidential. Identification of disclosers will only occur in accordance with the PID Act or with the consent of the discloser.

A discloser is subject to protection from reprisal under the PID Act where they make a disclosure, unless such a disclosure does not fall within the PID Act.

When a PID is received the Authorised Officer must conduct a risk assessment that considers the risk of reprisal action being taken against the discloser.

The OAIC will not tolerate any reprisal action against a person who makes a disclosure. A person who makes a disclosure will be protected from reprisal in the following ways:

  • it is a criminal offence to cause detriment to a person because it is suspected or believed that they have made or will make a disclosure
  • a discloser has the right to apply for an injunction to prevent a reprisal, and
  • a discloser has the right to apply for compensation for loss, damage or injury suffered from a reprisal.

Every allegation of reprisal will be taken seriously, recorded and responded to. All those involved in handling the disclosure and aware of the discloser’s identity will monitor the work environment for signs of detriment and if necessary, take corrective action as early as possible.

Support for disclosers

Regardless of the outcome of the risk assessment, the Authorised officer, investigator, manager or supervisor will take all reasonable steps to protect public officials who have made a PID from detriment or threats of detriment.

This may include taking one or more of the following actions:

  • appointing a support person to assist the discloser, who is responsible for checking on the wellbeing of the discloser regularly
  • informing the discloser of the progress of the investigation
  • advising the discloser of the availability of the Employee Assistance Program
  • where there are any concerns about the health and wellbeing of the discloser, liaising with the Manager Human Resources, or
  • transferring the discloser to a different area within the workplace (with the consent of the discloser).

After the investigation

Once the allegations in a disclosure have been investigated the person who is the subject of them will be formally advised of the outcome of the investigation as it relates to them. The person is not entitled to be told who made the disclosure.

The principal officer will take appropriate action in response to recommendations and other matters contained in the investigation report.

These actions might include:

  • commencing Code of Conduct proceedings under the PS Act or another disciplinary process
  • referral of the matter to the police or another body that can take further action
  • mediation or conciliation of a workplace conflict
  • an internal audit or other review of an issue or the operations of a particular unit
  • implementing or changing policies, procedures or practices, or
  • conducting training and awareness sessions for staff.

There may be a number of reasons why a public interest disclosure is determined not to be substantiated. The discloser will be given as much information as possible about the outcome of the investigation consistent with confidentiality limitations. Regardless of the outcome, the discloser will still be protected under the PID Act for making a disclosure.

Reporting to the Ombudsman’s Office

The OAIC must provide the following information to the Ombudsman’s office for the purpose of preparing the Ombudsman’s annual report under the PID Act:

  • the number of Disclosures received by Authorised Officers of the OAIC during the relevant financial year
  • the kinds of disclosable conduct to which those disclosures related
  • the number of investigations conducted during the relevant financial year
  • the actions that were taken during the relevant financial year in response to recommendations in reports relating to those investigations, and
  • any other information requested by the Ombudsman.

The information must be provided to the Ombudsman within a time requested by the Ombudsman or as otherwise agreed with the Ombudsman.

Further information

The Ombudsman’s functions include assisting principal officers, authorised officers and public officials in relation to the PID Act and has published a range of guidance materials that give information about the operation of the PID Act. See the Commonwealth Ombudsman’s PID website.

References

Public Interest Disclosure Act 2013

Public Interest Standard 2013