APSC Public Interest Disclosure Procedures
TABLE OF CONTENTS
1. INTRODUCTION
3
1.1 Public Interest Disclosure Act 2013 (PID Act)
3
1.2 Application of procedures
3
1.3 What is a public interest disclosure?
4
1.4 Public Officials
4
1.5 Authorised Officers
4
1.6 What is disclosable conduct?
4
2. SUPPORT, PROTECTION AND REPRISALS
5
2.1 The Commission encourages the making of reports of disclosable conduct
5
2.2 Protecting the discloser9s identity
5
2.3 Immunity from liability
6
2.4 Reprisal
6
2.5 Support for Disclosers
7
2.6 Supporting and protecting a person against whom a disclosure has been
7
made
3. THE DISCLOSURE PROCESS
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3.1 Making a disclosure under PID
8
4. ANONYMOUS DISCLOSURES
9
4.1 Types of anonymous disclosures
9
4.2 Reasons why a discloser may consider identifying themselves
9
5. PROCEDURES FOR SUPERVISORS AND MANAGERS
10
6. PROCEDURES FOR AUTHORISED OFFICERS
10
6.1 Authorised Officer must advise disclosers and potential disclosers about the 10
PID Act
6.2 Authorised Officer must decide whether or not to allocate a disclosure
10
6.3 Where Authorised Officer makes an internal disclosure
11
6.4 Record of allocating the handling of a disclosure
12
6.5 Risk assessment
12
7. DECIDING WHETHER OR NOT TO INVESTIGATE
13
7.1
Considerations
13
7.2 Decision not to investigate
14
7.3 Where the disclosure is to be investigated
14
8. PROCEDURES FOR INVESTIGATORS
14
8.1 Interviewing the witnesses
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8.2 Procedural fairness
15
8.3 Time limits
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8.4 Confidentiality
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9. REPORTS OF INVESTIGATIONS
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10. RECORD-KEEPING, MONITORING AND EVALUATION
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10.1
Record keeping
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10.2
Monitoring and Evaluation
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ATTACHMENT A- DIAGRAM OF WHAT IS A PUBLIC INTEREST DISCLOSURE
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ATTACHMENT B- LIST OF AUTHORISED OFFICERS FOR THE APSC
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ATTACHMENT C- INDICATORS OF A HIGHER RISK OF REPRISAL OR WORKPLACE CONFLICT 21
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APSC Public Interest Disclosure Procedures
1. INTRODUCTION
1.1 Public Interest Disclosure Act 2013 (PID Act)
The
Public Interest Disclosure Act 2013 (PID Act) commenced on 15 January 2014 and promotes integrity
and accountability in the Australian public sector by encouraging the disclosure of information about
suspected wrongdoing, protecting people who make disclosures and requiring agencies to take action in
relation to public interest disclosures.
The purpose of the PID Act is to promote integrity and accountability of the Commonwealth public sector
by:
encouraging and facilitating the disclosure of information by public officials about 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 by public officials are properly investigated an dealt with.
Section 59 of the PID Act requires the Australian Public Service Commissioner (as principal officer under
the PID Act) to establish procedures for facilitating and dealing with public interest disclosures.
1.2 Application of Procedures
These procedures apply to internal disclosures that relate to the Commission and are made by a current or
former public official. An internal disclosure may be made to the supervisor of the discloser, an authorised
officer of the Commission, an authorised officer of another agency, or the Ombudsman (or the Inspector-
General of Intelligence and Security (IGIS)) for intelligence related disclosures.
Where a disclosure has been allocated to the Commission from another agency (including the Ombudsman
or IGIS) and the authorised officer reasonably believes the disclosure to relate to the Commission, the
authorised officer will accept the allocation and deal with the disclosure in accordance with these
procedures.
In circumstances where an individual discloses information that they had not obtained whilst a public
official, the authorised officer may deem that person to be a public official for the purposes of the PID Act.
These procedures must be complied with when a supervisor or an authorised officer receives a disclosure.
Other legislative obligations may apply in addition these procedures, for example, in relation to work
health and safety.
A reference to the Commissioner is also a reference to a public official who has been delegated powers
under section 77 of the PID Act. A person who has been delegated powers under the PID Act must not be a
person with a direct or indirect interest in the matter, and they must be free of actual or apparent bias.
A disclosure report made to a person who is authorised to receive it under these procedures will not in
itself be a breach of the provisions relating to unauthorised disclosure of information (see section 70 of the
Crimes Act 1914 and
Public Service Regulation 2.1).
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APSC Public Interest Disclosure Procedures
1.3 What is a public interest disclosure?
A public interest disclosure is a disclosure by a current or former public official of suspected wrongdoing in
the Commonwealth public sector. There are four different types of public interest disclosure sanctioned by
the PID Act: internal disclosure, external disclosure, emergency disclosure and legal practitioner disclosure.
An internal disclosure is made when:
a person who is or has been a
public official;
the person makes the disclosure to their supervisor or manager or an
Authorised Officer of the
Commission; and
the information tends to show, or the discloser believes on reasonable grounds the information
tends to show, one or more instances of
disclosable conduct.
Internal disclosures, made about the Australian Public Service Commission, are the focus of these
procedures.
The elements of making a disclosure under the PID Act are summarised in the diagram at
Attachment A.
1.4 Public Officials
A person must be a current or former 8public official9 to make a disclosure. This broad term includes
Australian Government public servants, statutory office holders and staff of Commonwealth contracted
service providers. An Authorised Officer can also deem an individual to be a public official if they
reasonably believe the individual has information about wrongdoing and proposes to make a disclosure.
1.5 Authorised Officers
For the purposes of these procedures, an authorised officer in the Commission is:
The Commissioner (as principal officer under the PID Act); or
An employee of the Commission appointed, in writing, by the principal officer as an authorised
officer for the purposes of the PID Act.
The names and contact details of the authorised officers are at
Attachment B.
1.6 What is disclosable conduct?
The full definition of disclosable conduct is set out in section 29 of the PID Act. That definition applies for
the purposes of these procedures.
In summary, disclosable conduct is conduct by an Agency or by the public official that:
contravenes a law of the Commonwealth, a State or a Territory; or
occurs in a foreign country and contravenes a law in force in that country that applies to the
agency or public official and that corresponds to a law in force in the Australian Capital Territory;
or
constitutes maladministration, including conduct that:
o is based on improper motives
o is unreasonable, unjust or oppressive, or
o is negligent, or
is an abuse of public trust; or
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is fabrication, falsification or deception in relation to scientific research, or misconduct in relation
to scientific work; or
results in the wastage of public money or public property or of the money or property of an
authority covered by the PID Act; or
unreasonably results in a danger to the health and safety of a person or unreasonably results in or
increases the risk of a danger to the health and safety of a person; or
results in a danger to the environment or results in or increases the risk of a danger to the
environment; or
is prescribed by the PID Rules; or
is engaged in by a public official that:
o involved abuse of the public official9s position, or
o could, if proved, give reasonable grounds for disciplinary action against the public official.
It does not matter whether the disclosable conduct occurred before or after 15 January 2014.
It does not matter whether the public official who carried out the alleged conduct has ceased to be a
public official since the time the conduct is alleged to have occurred, but it is necessary that they carried
out the conduct in connection with their position as a public official.
2. SUPPORT, PROTECTION AND REPRISALS
2.1 The Commission encourages the making of reports of disclosable conduct
The Commission encourages and supports the reporting of wrongdoing by public officials in accordance
with the PID Act.
The Commission will take active steps to support and to protect persons who make disclosures under the
PID Act.
The Commission recognises is it important to have an effective system for reporting and investigating
disclosable conduct. Some of the potential benefits of such a system are reducing the work health and
safety risks to our workers, saving money and making our processes more efficient. Another potential
benefit is increasing the confidence of our workers in the way the Commission is managed.
The Commission also recognises that a decision by the Commission not to deal with a disclosure as a
disclosure under the PID Act, when as a matter of law that is how the disclosure should have been dealt
with, could be seriously detrimental to the discloser and to the effective operation and the good
reputation of the Commission.
2.2 Protecting the discloser’s identity
The PID Act provides protection for public officials, from adverse consequences of disclosing information
that, in the public interest, should be disclosed.
A person commits an offence if they disclose or use information that is likely to enable the identification of
the discloser unless the discloser consents, the identifying information has already been lawfully
published, or the disclosure or use:
is for the purposes of the PID Act;
is required under another Commonwealth law or a prescribed State or Territory law; or
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is in connection with the Ombudsman9s functions under section 5A of the
Ombudsman Act 1976 or
the IGIS9s functions under section 8A of the
Inspector- General of Intelligence and Security Act
1986.
In order to protect a discloser9s identity, the Commission wil :
limit the number of people who are aware of the discloser9s identity or information that would
tend to identify them;
remind each person who has the information that they should keep it confidential and that
unauthorised disclosure may be a criminal offence;
assess whether anyone who is aware of the discloser9s identity may have a motive to take reprisals
against the discloser or impede the progress of the investigation, and monitor the situation; and
ensure the discloser can communicate with a support person, the Authorised Officer or
investigator without alerting other staff.
2.3 Immunity from liability
A person who makes a public interest disclosure is not subject to any civil, criminal or administrative
liability (including disciplinary action) for making the disclosure.
No contractual or other remedy may be enforced, and no contractual or other right may be exercised,
against a person on the basis of the public interest disclosure. A contract to which the discloser is a party
cannot be terminated because of the public interest disclosure.
However, these immunities do not apply if the discloser:
knowingly makes a statement that is false or misleading; or
makes a disclosure knowing that it contravenes a designated publication restriction and without a
reasonably excuse for doing so.
Making a disclosure about matters that include a discloser9s own wrongdoing does not protect them from
liability for their wrongdoing.
2.4 Reprisals
A person who makes a public interest 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 believe that they
have made or will make a public interest 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.
The Commission will take every allegation of reprisal seriously. Every allegation will be recorded and
responded to. All staff involved in handling public interest disclosures and aware of a discloser9s identity,
will monitor the work environment for signs of detriment and if necessary, take corrective action early.
What is reprisal?
Reprisal occurs if someone causes, by an act or omission, any detriment to another person because they
believe or suspect that person, or anyone else, may have made or intends to make a public interest
disclosure.
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APSC Public Interest Disclosure Procedures
8Detriment9 includes any disadvantage to a person, including dismissal, injury in their employment,
discrimination between them and other employees or alteration of their position to their disadvantage.
What is not reprisal?
Administrative action that is reasonable to protect the discloser from detriment is not reprisal. For
example, where a person has made a disclosure in relation to practices in their immediate work area, it
may be appropriate to transfer them to another work area to ensure they are not harassed or victimised.
Making a disclosure does not exclude the discloser from reasonable management action for any
unsatisfactory performance or wrongdoing on their part- such action is not a reprisal.
2.5 Support for disclosers
The Commission will provide support for disclosers, including:
acknowledgment for having come forward with a report of wrongdoing;
an offer of support and information about what options are available; and
an assurance the Commission will take all reasonable steps necessary to protect them.
A discloser who is finding the process stressful or concerning may also access the Employee Assistance
Program.
2.6 Supporting and protecting a person against whom a disclosure has been made
The Commission will provide support to a person who is subject to an allegation made in a public interest
disclosure. The person will also be accorded procedural fairness. This can include the following actions:
providing the person information about their rights and obligations under the PID Act;
providing the person information about the Commission9s investigation procedures and any other
relevant matter; including informing them of the progress of any investigation;
ensuring the identity of the person is protected as much as reasonably practicable; and
advising them of the availability of the Employee Assistance Program.
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3. THE DISCLOSURE PROCESS
3.1 Making a disclosure
All public officials and former public officials are entitled to make a disclosure under the PID Act, including:
all employees of the Commission and former employees of the Commission
all contracted service providers and their employees who provide, or provided, services to the
Commission under a contract with the Commission.
A public interest disclosure may be made anonymously or openly and orally or in writing.
Where a public official makes a public interest disclosure they do not have to state or intend that they are
doing so under the PID Act. Public officials who are considering making a disclosure should, in the first
instance, contact one of the Commission9s Authorised Officers to obtain information about making a public
interest disclosure under the PID Act.
Employees in the Commission may make a disclosure of disclosable conduct to their supervisor or
manager, or to an authorised officer or, in certain circumstances, to the Ombudsman (refer Attachment A).
Where possible, an employee in the Commission should make their public interest disclosure to an
authorised officer rather than their manager or supervisor.
Note: Authorised Officers in the Commission have been trained in receiving public interest
disclosures and they can provide information about how to make a public interest disclosure and
about the protections given to disclosers under the PID Act. This clause does not prevent an
employee in the Commission from making a disclosure to their supervisor or manager.
The information contained in a disclosure should be clear and factual, and avoid speculation, personal
attacks and emotive language. It should contain supporting evidence where it is available to the discloser
and should, where possible, identify any witnesses to the disclosable conduct.
In making a disclosure, the discloser should consider providing the following information to assist the
authorised officer and/or principal officer to decide how the disclosure should be handled:
their name and contact details;
the nature of the suspected wrongdoing;
who they thing committed the wrongdoing;
when and where the suspected wrongdoing occurred;
relevant events surrounding the issue;
if they did anything in response to the suspected wrongdoing;
whether others know about the suspected wrongdoing and have allowed it to continue;
whether they believe their information is a public interest disclosure under the PID Act;
and
if they are concerned about possible reprisal as a result of making a disclosure.
It is important that a potential discloser does not investigate a matter themselves before making a
disclosure. A person who knowingly makes a false or misleading disclosure will not have any protections
under the PID Act.
Once a public interest disclosure is made, it cannot be withdrawn. A disclosure may however state they do
not wish the disclosure to be investigated and they may refuse to consent to their name and contact
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APSC Public Interest Disclosure Procedures
details being provided to the Principal Officer and/or delegate. If a discloser requests that a matter not be
investigated, this should be a consideration that is taken into account in determining whether to exercise
the discretion not to investigate or investigate further. The Commission can however still choose to
investigate the disclosure.
Upon receiving a disclosure of disclosable conduct from a public official, a supervisor, manager or
Authorised Officer must deal with the disclosure in according with the PID Act the these procedures.
4. ANONYMOUS DISCLOSURES
4.1 Types of anonymous disclosures
All current and former public officials and others are able to make disclosures in an anonymous way if they
wish to do so.
A discloser is anonymous if the identity of the discloser is not revealed and if no contact details for the
discloser are provided. It is also anonymous if the discloser does not disclose their name but does provide
anonymous contact details.
Where an authorised officer receives an anonymous disclosure they must consider whether to exercise the
power in section 70 of the PID Act to determine on their own initiative that a person who has disclosed
information to them is a public official in relation to making a disclosure. However, if the authorised officer
cannot contact the discloser, no determination can be made because the authorised officer must be able
to give written notice of the determination to the individual (see s70(1)).
Where an authorised officer decides to make a determination under section 70 that the Act has effect as if
the individual had been a public official, the authorised officer should seek assistance from the Legal team
on drafting the written notice. The written notice must be given to the individual.
4.2 Reasons why a discloser may consider identifying themselves
There are a variety of reasons why a discloser may decide to identify themselves to an authorised officer,
or at the very least provide a means of contact, including:
the PID Act requires agencies to keep a discloser9s identity confidential, subject to limited
exceptions including the discloser9s consent. The person9s identity may nonetheless become
apparent if an investigation is commenced. If the person9s identity needs to be disclosed or is likely
to become apparent, the Commission should discuss this with them;
it will be difficult to ensure protection from reprisal if the Commissioner does not know the
discloser9s identity;
the Authorised Officer who receives an anonymous report must have reasonable grounds to
suspect the disclosable conduct has occurred in order to allocate the matter for investigation. If
they cannot contact the person to seek necessary further information, the matter may not
proceed;
it may also be difficult to conduct an investigation if the discloser cannot be contacted for further
information. An investigation has the discretion not to investigate, or investigate further, if the
discloser does not provide their name and contact details or is unable to give the investigator
further information and assistance if needed.
a discloser who does not provide a means of contact cannot be updated on the progress of the
matter, including on the outcome of the investigation.
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A person who has made an anonymous disclosure may come forward at a later stage to disclose their
identity and seek the protections of the PID Act.
5. PROCEDURES FOR SUPERVISORS AND MANAGERS
Where a public official in the Commission discloses information to their supervisor or manager and that
supervisor or manager has reasonable grounds to believe the information concerns, or could concern,
disclosable conduct, the supervisor or manager must, as soon as practicable, give the information to an
authorised officer in the Commission.
The supervisor or manager must make a written record of the fact of the disclosure, and if the disclosure is
not in writing, make a written record of the substance of the disclosure and the time and date of the
disclosure. The person who received the disclosure must ask the discloser to sign the record of the
disclosure, where practicable.
Where a supervisor or manager has given information to an authorised officer and is able to contact the
discloser, they must inform the discloser that they have given the information to an authorised officer in
the Commission and advise the discloser of the name and contact details of that authorised officer.
6. PROCEDURES FOR AUTHORISED OFFICERS
6.1 Authorised Officer must advise disclosers and potential disclosers about the PID Act
Where:
a person discloses, or is proposing to disclose, information to an authorised officer
which the authorised officer has reasonable grounds to believe may be disclosable
conduct; and
the authorised officer has reasonable grounds to believe that the person may be
unaware of what the PID Act requires for the disclosure to be an internal disclosure; and
the authorised officer is aware of the contact details of the person;
the authorised officer must:
inform the person that the disclosure could be treated as an internal disclosure for the
PID Act; and
explain to the person what the PID Act requires for a disclosure to be an internal
disclosure; and
advise the person of any orders or directions that may affect disclosure of the
information.
6.2 Authorised Officer must decide whether or not to allocate a disclosure
Where a public official makes a disclosure of disclosable conduct directly to an authorised officer,
the authorised officer must make a written record of the fact of the disclosure and, if the
disclosure is not in writing, they must make a written record of the substance of the disclosure
and of the time and date of the disclosure.
The authorised officer must ask the discloser to sign the written record of the disclosure,
where this is practicable.
Where a disclosure has been given to or made to an authorised officer, the authorised officer
must use their best endeavours to decide on the allocation of the disclosure within
14 days after
the disclosure is given to or made to the authorised officer.
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An authorised officer who receives a disclosure must decide whether they are satisfied, on
reasonable grounds, that there is no reasonable basis on which the disclosure could be considered
to be an internal disclosure.
Note: The basis on which an authorised officer could be satisfied of this include: that
the disclosure has not been made by a person who is, or was, a public official; that
the disclosure was not made to an authorised internal recipient or supervisor; that
the disclosure is not about disclosable conduct; that the person who is alleged to
have carried out the disclosable conduct was not a public official at the time they are
alleged to have carried out that conduct; and that the disclosure is not otherwise a
public interest disclosure within the meaning of the PID Act.
Where an authorised officer receives a disclosure, the authorised officer may obtain
information and may make such inquiries as they think fit, for the purposes of deciding the
allocation of the disclosure, including for the purposes of deciding whether the disclosure is
an internal disclosure or not.
Where an authorised officer decides that a disclosure that has been made to them is not to be
allocated, they must where the discloser9s contact details are known to the authorised officer,
advise the discloser in writing of:
the reasons why the disclosure is not to be allocated; and
any other courses of action that might be available to the discloser under other laws of
the Commonwealth.
Where the authorised officer is aware of the contact details of the discloser, they must, as soon
as practicable after receiving the disclosure and before allocating the disclosure, ask the discloser
whether the discloser:
consents to the authorised officer giving the discloser9s name and contact details
to the principal officer and to the principal officer9s delegates; and
wishes the disclosure to be investigated.
The authorised officer must make a written record of the discloser9s responses (if any) to the
questions referred to above.
Where a discloser does not respond within
7 days to the questions referred to above the discloser is taken
not to have consented to the disclosure of their name and contact details to the principal officer and their
delegates, and the discloser is taken to wish the disclosure to be investigated.
6.3 Where Authorised Officer allocates an internal disclosure
An authorised officer must obtain the consent of an authorised officer in another agency
before the first authorised officer can allocate an internal disclosure to that agency.
Where an authorised officer in the Commission allocates a disclosure to an agency they must
inform the principal officer of that agency of:
the allocation to the agency;
the information that was disclosed to the authorised officer;
the suspected disclosable conduct; and
if the discloser's name and contact details are known to the authorised officer, and the
discloser consents to the Principal Officer being informed – the discloser's name and
contact details.
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If the authorised officer allocated a disclosure to an agency , that is not the Ombudsman, the IGIS
or an intelligence agency, he or she will inform the Ombudsman of this in writing. If the disclosure
is allocated to an intelligence agency, the authorised officer will inform the IGIS of this in writing.
Where the authorised officer is aware of the contact details of the discloser the authorised
officer must inform the discloser, in writing, of the allocation and the information that has been
provided to the principal officer of the relevant agency.
6.4 Record of allocating the handling of a disclosure
When an authorised officer allocates the handling of a disclosure to one or more agencies,
he or she must keep an appropriate record of:
the decision (including the name of each agency to which the disclosure is to be allocated);
the reasons for the decision; and
the consent provided by the authorised officer of the agency to which the allocation is
made.
The authorised officer must also keep appropriate records of whether the discloser was informed of the
allocation decision and, if so, of:
the day and time the discloser was notified; and
the means by which the discloser was notified; and
the content of the notification.
These records should be kept confidential.
6.5 Risk Assessment
Where an authorised officer in the Commission allocates a disclosure, they must conduct a risk assessment
on whether reprisals may be taken against the discloser based on a checklist of risk factors, and having
regard to any assessment of risk provided under these procedures by the discloser9s supervisor or
manager.
In conducting the risk assessment, authorised officers will adopt the following framework which
entails four steps:
•
Identifying – are reprisals or related workplace conflict problems in the
workplace, or do they have the potential to be problems?
•
Assessing – what is the likelihood and consequence of reprisals or related
workplace conflict?
•
Controlling – what strategies should be put in place to prevent or contain
reprisals or related workplace conflict?
•
Monitoring and reviewing – have the strategies been implemented and were they
effective?
The table at
Attachment C provides a summary of the risk factors that should be
considered when assessing the risk of any reprisal against the discloser.
The Ombudsman9
s 8Agency Guide to the Public Interest Disclosure Act 20139 provides detailed
information on how to carry out a risk assessment.
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7. DECIDING WHETHER OR NOT TO INVESTIGATE
7.1 Considerations
Where an authorised officer allocates an internal disclosure to the principal pfficer or
nominated delegate and the principal officer or delegate has been given the contact
details of the discloser, the principal officer or delegate must,
within 14 days after the
disclosure was allocated to the Commission, inform the discloser in writing that the
principal officer or delegate may decide:
not to investigate the disclosure; or
not to investigate the disclosure further;
and the principal officer or delegate must inform the discloser of the grounds on which
that decision will be taken.
The principal officer or delegate must, as soon as practicable after receiving an allocation
of a disclosure from an authorised officer (whether from within or without the
Commission) consider whether to exercise the discretion under s 48 of the PID Act not to
investigate the disclosure under the PID Act.
In broad terms, the principal officer or delegate may decide not to investigate (or may
decide to discontinue an investigation already begun) if:
the discloser is not a current or former public official (and a determination has not
been made under section 70 of the PID Act); or
the information does not to any extent concern
serious disclosable conduct; or
the disclosure is frivolous or vexatious; or
the disclosure is substantially the same as a disclosure that has been
investigated under the PID Act; or
the disclosure is substantially the same as a disclosure that has already been
investigated, or is currently being investigated, under another law of the
Commonwealth; and
- it would be inappropriate to conduct another investigation at the same
time; or
-
the principal officer is reasonably satisfied that there are no matters that
warrant further investigation; or
the discloser has informed the principal officer that they do not wish the disclosure
to be pursued and the principal officer is reasonably satisfied that there are no
further matters concerning the disclosure that warrant investigation; or
it is impracticable to investigate the disclosure because:
-
the discloser has not revealed their name and contact details; or
-
the discloser has refused or has failed or is unable to give the investigator the
information they requested; or
-
of the age of the information.
Guidance on factors that might go towards the exercise of the power in section 48 is
provided in the Ombudsman
9s 8Agency Guide to the Public Interest Disclosure Act 20139.
APSC Public Interest Disclosure Procedures
7.2 Decision not to investigate
Where the principal officer or delegate decides under section 48 of the PID Act not to
investigate a disclosure, and where they have been given the name and contact details of
the discloser, the principal officer or delegate must, as soon as reasonably practicable,
inform the discloser of that decision, of the reasons for that decision and of other courses
of action that may be available to the discloser under other laws of the Commonwealth.
7.3 Where the disclosure is to be investigated
Where a matter is required to be investigated, and where the principal officer or
delegate has been given the name and contact details of the discloser, the principal
officer or delegate must inform the discloser that they are required to investigate the
disclosure, and inform the discloser of the estimated length of the investigation.
If the principal officer or delegate decides to investigate the disclosure and starts to
investigate the disclosure but then decides not to investigate the disclosure further under
section 48, the principal officer or delegate must inform the discloser of that decision, or the
reasons for the decision and of other courses of action that might be available to the
discloser under other laws of the Commonwealth.
8. PROCEDURES FOR INVESTIGATORS
Where the principal officer or delegate has decided to commence an investigation into an
internal disclosure, they may conduct the investigation as they think fit.
The principal officer or delegate must be independent and unbiased in investigating the
matter. They must ensure that they do not have an actual or perceived conflict of interest.
The principal officer or delegate may, for the purposes of the investigation, obtain
information from such persons, and make such inquiries, as they think fit.
When conducting an investigation the principal officer or delegate must ensure that a
decision is based on evidence that is sufficient to prove a fact is made on the balance of
probabilities.
The principal officer or delegate, in conducting an investigation under these procedures,
must comply with:
the Ombudsman9s Standard,
and
to the extent they are relevant to the investigation:
-
the Commonwealth Fraud Control Guidelines; and
-
these procedures; and
-
the procedures established under s 15(3) of the
Public Service Act 1999.
8.1 Interviewing witnesses
Subject to any restrictions imposed by a law of the Commonwealth other than the PID Act,
the investigator must ensure that, if a person is interviewed as part of the investigation of
an internal disclosure, that person is informed of:
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the identity and function of each person conducting the interview; and
the process of conducting an investigation; and
the authority of the investigator under the PID Act to conduct an
investigation; and
the protections provided to the person by section 57 of the PID Act;
and
An investigator should also inform the person of their duty:
if they are a public official – to use their best endeavours to assist the
investigator in the conduct of an investigation under the PID Act (subject to
the public official9s privilege against incriminating themselves or exposing
themselves to a penalty); and
not to take or threaten to take reprisal action against the discloser; and
subject to the PID Act, not to disclose the identity of the person who made the
disclosure.
Where the investigator conducts an interview as part of an investigation, at the end of the
interview, the interviewee must be given an opportunity to make a final statement or
comment or express a position. The investigator must include any final statement,
comment or position in the record of the interview.
Where the investigator is aware of the discloser9s identity and considers that it is
necessary to reveal the discloser9s identity to a witness, the investigator must consult
with the discloser, where practicable, before proceeding.
8.2 Procedural fairness
Procedural fairness does not require that a person against whom allegations are made must
be advised as soon as the disclosure is received or as soon as an investigation is commenced.
Procedural fairness may require that the discloser9s identity be revealed to the person
who is the subject of the disclosure.
Where the investigator in preparing the report of their investigation proposes to:
make a finding of fact; or
express an opinion that is adverse to the discloser, to a public official who is the
subject of the disclosure or to another person:
the investigator or delegate must give the person who is the subject of that proposed
finding or opinion a copy of the evidence that is relevant to that proposed finding or
opinion and must give the person a reasonable opportunity to comment on it.
Note: The above paragraph will not apply where the investigation does not
make substantive findings or express adverse opinions but instead simply
recommends or decides that further investigation action should or should not
be taken or will or will not be taken.
The investigator must ensure that a finding of fact in a report of an investigation under
the PID Act is based on logically-probative evidence.
The investigator must ensure that the evidence that is relied on in an investigation is
relevant.
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APSC Public Interest Disclosure Procedures
Note: In broad terms, evidence is relevant to an investigation if it is of
consequence to the matter under investigation and makes the existence of a
fact more probable or less probable than it would be without the evidence.
8.3 Time limits
The investigator has 90 days from the date the disclosure was allocated in which to
complete the investigation.
It is possible to seek one or more extensions of time from the Ombudsman.
A request to the Ombudsman for an extension of time should be made where an
investigation has not been completed within 70 days of the date the disclosure was
allocated.
An application for extension should include reasons why the investigation cannot be
completed within the time limit, the views of the discloser and an outline of action taken
to progress the investigation.
An investigation that is not completed within time does not become invalid.
8.4 Confidentiality
The investigation of the disclosure should be conducted in as confidential a manner as is
possible. In particular, the identity of both the discloser and the person alleged to have
engaged in the disclosable conduct should not be revealed except where this is reasonably
necessary for the effective investigation of the disclosure (including because of the need to
afford procedural fairness).
Any interviews conducted by an authorised officer or delegates (including investigators)
should be conducted in private.
Any interviews with the discloser should be arranged so as to avoid the identification of
the discloser by other staff of the agency.
9. Reports of investigations
In preparing a report of an investigation under the PID Act the investigator must comply with the PID
Act and these procedures.
A report of an investigation under the PID Act must set out:
the matters considered in the course of the investigation; and
the duration of the investigation; and
the investigator9s findings (if any);
and
the action (if any) that has been, is being or is recommended to be taken; and
any claims made about, and any evidence of, detrimental action taken against
the discloser, and the Commission9s response to those claims and that evidence
and, where relevant, a report must:
identify whether there have been one or more instances of disclosable conduct;
and
identify any regulations, rules, administrative requirements or similar matters to
which the disclosable conduct (if any) relates; and
explain the steps taken to gather evidence; and
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APSC Public Interest Disclosure Procedures
set out a summary of the evidence; and
set out any recommendations made based on that evidence.
Where an investigator has completed a report of an investigation under the PID Act, and
where they have been given the discloser9s contact details, the investigator must, as soon
as practicable, advise the discloser in writing:
that the report has been completed; and
whether the report was completed within the time limit provided for by the PID
Act.
The investigator must, within a reasonable time of preparing a report of an investigation
under the PID Act, give a copy of the report to the discloser.
The investigator may delete from the copy of the report given to the discloser any
material:
that is likely to enable the identification of the discloser or another person; or
the inclusion of which would result in the copy being a document:
-
that is exempt for the purposes of Part IV of the
Freedom of Information Act
1982, or
-
having, or being required to have, a national security or other
protective security classification, or
-
containing intelligence information.
The investigator must delete from the copy of a report given to the discloser any material
which would result in the report contravening a designated publication restriction.
10. RECORD-KEEPING, MONITORING AND EVALUATION
10.1 Record-keeping
Where an authorised officer is required to keep a record under these procedures, the
record may be kept in hard copy or in an electronic form or in both. Access to these records
must be restricted to the authorised officers, delegates (including investigators) or other
employees in the Commission who require access in order to perform some function under
the PID Act or for the purposes of another law of the Commonwealth (for example, under
the
Work Health and Safety Act 2011 or the
Public Service Act 1999).
Where a form is required to be sent under these procedures, a copy of the form must be
kept.
All records made for the purposes of the PID Act in accordance with these procedures must
be marked in accordance with the Protective Security Policy Framework (PSPF) Security
Classification System and stored in the appropriate storage container.
Any email messages sent by authorised officers or delegates that contain identifying
information must be clearly marked 8to be read by named addressee only9.
Where a person will cease being an authorised officer in the Commission (including because
of resignation or movement to another agency), their PID records must be transferred to
another authorised officer in the Commission.
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APSC Public Interest Disclosure Procedures
10.2 Monitoring and evaluation
Each authorised officer must complete the PID spreadsheet stored in Squirrel for all new
disclosures received by them (Squirrel reference D18/30556). Only authorised \officers and
members of the Commission9s Legal Services team have access to this document.
The Legal Services Team will routinely provide de-identified reports to the Executive in
relation to disclosures received under the PID Act.
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APSC Public Interest Disclosure Procedures
ATTACHMENT A
WHAT IS A PUBLIC INTEREST DISCLOSURE?
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APSC Public Interest Disclosure Procedures
ATTACHMENT B
AUTHORISED OFFICERS FOR THE AUSTRALIAN PUBLIC SERVICE COMMISSION
The names and contact details for the Authorised Officers within the Office are as
follows:
Michelle Coffill
xxxxxxxx.xxxxxxx@xxxx.xxx.xx
02 6202 3556
Michael McAlister
xxxxxxx.xxxxxxxxx@xxxx.xxx.xx
02 6202 3872
Katherine Gifford
xxxxxxxxx.xxxxxxx@xxxx.xxx.xx
02 6202 3957
Glenys Agnew
xxxxxx.xxxxx@xxxx.xxx.xx
02 6202 3954
The Authorised Officers may also be contacted by:
Emailing the Commission a
t xxx@xxxx.xxx.xx.
In the subject line you should indicate that your PID is about the Australian Public
Service Commission.
Writing to the Authorised Officer at GPO Box 3176, Canberra ACT 2601. You should
mark any envelopes or external covers 8Confidential—APSC PID.9
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APSC Public Interest Disclosure Procedures
ATTACHMENT C
INDICATORS OF A HIGHER RISK OF REPRISALS OR WORKPLACE CONFLICT
Has a specific threat against the discloser been received? Is there
Threats or past
a history of conflict between the discloser and the subjects of the
experience
disclosure, management, supervisors or colleagues? Is there a
history of reprisals or other conflict in the workplace? Is it likely
that the disclosure will exacerbate this?
Who knows that the disclosure has been made or was going to be
made? Has the discloser already raised the substance of the
disclosure or revealed their identity in the workplace? Who in the
Confidentiality
workplace knows the discloser9s identity? Is the discloser9s
unlikely to be
immediate work unit small? Are there circumstances, such as the
maintained
discloser9s stress level, that wil make it difficult for them to not
discuss the matter with people in their workplace? Will the discloser
become identified or suspected when the existence or substance of
the disclosure is made known or investigated? Can the disclosure be
investigated while maintaining confidentiality?
Are there allegations about individuals in the disclosure? Who are
their close professional and social associates within the workplace?
Is there more than one wrongdoer involved in the matter? Is the
Significant
reported wrongdoing serious? Is or was the reported wrongdoing
reported
occurring frequently? Is the disclosure particularly sensitive or
wrongdoing
embarrassing for any subjects of the disclosure, senior
management, the agency or government? Do these people have
the intent to take reprisals – for example, because they have a lot
to lose? Do these people have the opportunity to take reprisals –
for example, because they have power over the discloser?
Is or was the reported wrongdoing directed at the discloser?* Are
there multiple subjects of the disclosure? Is the disclosure about a
Vulnerable
more senior officer? Is the discloser employed part- time or on a
discloser
casual basis? Is the discloser isolated – for example, geographically
or because of shift work? Are the allegations unlikely to be
substantiated – for example, because there is a lack of evidence? Is
the disclosure being investigated outside your organisation?*
Extract from the Ombudsman
9s 8Agency Guide to the Public Interest Disclosure Act
20139.
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