SPEAKING UP ABOUT WRONGDOING
A guide to making a disclosure under
the
Public Interest Disclosure Act 2013
Contents
FOREWORD
ii
KEY TERMS
ii
UNDERSTANDING THE PUBLIC INTEREST DISCLOSURE SCHEME
1
» Why should I speak up?
1
» What is a public interest disclosure?
2
» Who can make a public interest disclosure?
3
» What can I disclose?
3
» What is not disclosable conduct?
4
» Who can I make a public interest disclosure to?
4
– Your own agency – an internal disclosure
4
– Other government agencies – an internal disclosure
4
– Other people – external and emergency disclosures
5
– Lawyers
6
» What happens if I disclose the information outside these circumstances?
7
MAKING A PUBLIC INTEREST DISCLOSURE
7
» What should I do before making a disclosure?
7
» Can I discuss the matter with a lawyer?
7
» Can I disclose anonymously?
8
» Do I have to disclose in writing?
8
» What information should I provide?
8
» Will my name be kept confidential?
9
» What are my obligations?
9
» Dealing with an internal disclosure
10
AFTER A DISCLOSURE IS MADE
11
» Allocation and investigation
11
» After the investigation
11
» How long will the process take?
11
» Will I be kept informed?
12
» What happens if the disclosure is substantiated?
12
» What happens if the disclosure is not substantiated?
13
» What if I am not satisfied with the agency’s action?
13
» How am I protected?
13
– Liability
13
– Reprisal
14
» Where can I get support?
14
SOME KEY POINTS TO REMEMBER
15
FURTHER INFORMATION
15
i
Foreword
The
Public Interest Disclosure Act 2013 (PID Act) facilitates disclosure and investigation of wrongdoing
across the Commonwealth public sector. This guide provides an overview of how the public interest
disclosure scheme works and your rights and obligations if you are considering making a disclosure.
The PID Act is not intended to replace existing processes for dealing with workplace grievances and
misconduct, such as suspected breaches of the APS Code of Conduct, bullying and harassment, but to
supplement them. Nor does it replace professional standards, integrity or mandatory reporting regimes.
In preparing this guide, my office has had regard to the content of the guidelines of the NSW
Ombudsman and the guide issued by the Queensland Ombudsman, Crime and Misconduct Commission
and Queensland Public Service Commission,
Thinking about blowing the whistle? (2011). I wish to thank
the authors of those guidelines and guide.
Colin Neave
Commonwealth Ombudsman
KEY TERMS
authorised officer
agency head or officer appointed by the agency head
disclosable conduct
wrongdoing you can report under the PID Act
IGIS
Inspector-General of Intelligence and Security
PID Act
Public Interest Disclosure Act 2013
PID rules
rules made by the minister under the PID Act
principal officer
agency head
ii
Understanding
the public interest
disclosure scheme
WHY SHOULD I SPEAK UP?
Staff who are prepared to speak up about
public sector misconduct, wastage of public
funds, suspected illegal activity or danger to
health, safety or the environment are often
the most important and accurate sources of
information to identify and address problems
in administration.
How, where and what you disclose will
determine whether your disclosure is protected
under the
Public Interest Disclosure Act 2013
(PID Act), as outlined in this guide. The PID
Act safeguards your confidentiality, protects
you from reprisals and requires agencies to
take action.
If you make a disclosure, you may help to:
» stop the wrongdoing or bring it to the
attention of people who can stop it
» prevent disadvantage to other
people from the wrongdoing
» prevent danger to health and safety
or damage to the environment
» create an opportunity to implement better
work procedures to prevent wrongdoing
or maladministration in the future
» bring to account the people
responsible for wrongdoing.
You will also know that you did what you could
to improve the situation.
Even if you decide that you do not wish to make
a public interest disclosure, you should consider
whether there is some other action you should
take to speak up about workplace matters
that concern you. There are other avenues
for advice and action, including in relation to
harassment and other breaches of the APS Code
of Conduct, and your agency should ensure that
you are supported.
1
WHAT IS A PUBLIC INTEREST DISCLOSURE?
Essentially it is a disclosure by a current or former public official of suspected wrongdoing in the
Commonwealth public sector. The emphasis of the scheme is on disclosures being made and
investigated within government, but in limited circumstances a disclosure outside government is
permitted. The elements of making a disclosure under the PID Act are summarised below, with
more detail on the following pages.
Includes public servants and parliamentary
Disclosure by a
current or
service employees, service providers under a
former public official
Commonwealth contract, statutory office holders,
staff of Commonwealth companies etc
Conduct engaged in by an agency, public
Of information that tends
official or contracted service provider
to show, or that the
Types include illegal conduct, corruption,
public official reasonably
maladministration, abuse of public trust,
believes tends to show
deception relating to scientific research, wastage
disclosable conduct
of public money, unreasonable danger to health
or safety, and danger to the environment
» A supervisor or authorised officer
Made to an
appropriate
» The Commonwealth Ombudsman
person within government
» The IGIS (if an intelligence matter)
» A prescribed investigative agency
O R
Made to anybody
If the disclosure does not include intelligence
(other than a foreign official)
or sensitive law enforcement information
under limited circumstances
A N D
an investigation was conducted
and the
and the public official reasonably
disclosure is
believes the investigation or the
not contrary
agency response was inadequate,
to the public
or the investigation was not
interest
completed within time
O R
the public official believes on reasonable
grounds that there is a substantial and imminent
danger to health, safety or the environment
2
WHO CAN MAKE A PUBLIC
» constitutes maladministration, including
INTEREST DISCLOSURE?
conduct that is based on improper motives or is
unreasonable, unjust, oppressive or negligent
You must be a current or former ‘public official’,
as defined in s 69 of the PID Act, to make a
» is an abuse of public trust
public interest disclosure. Essentially this means
» involves fabrication, falsification, plagiarism
a Commonwealth public servant, member of
or deception relating to scientific research,
the Defence Force, appointee of the Australian
or other misconduct in relation to
Federal Police, Parliamentary Service employee,
scientific research, analysis or advice
director or staff member of a Commonwealth
» results in wastage of public
company, statutory office holder or other person
money or public property
who exercises powers under a Commonwealth
» unreasonably endangers health and safety
law. Organisations or individuals who provide
services under a Commonwealth contract and
» endangers the environment
their officers or employees are also included.
» is prescribed by the PID rules (s 29(1)).
An authorised officer can also deem an individual
An agency is broadly defined. It means:
to be a public official if they reasonably believe
the individual has information about wrongdoing
» a department
and proposes to make a disclosure (s 70).
» an executive agency under the
Public Service
Examples where an authorised officer might
Act 1999 (that is, an agency established by the
consider this appropriate include where a former
Governor-General rather than by legislation)
volunteer with an agency or someone who has
received funding from the Australian Government
» a statutory agency under the
Public Service Act 1999
has ‘inside information’ about the agency’s
wrongdoing.
» a Commonwealth authority (within
the meaning of the
Commonwealth
If you are not sure whether you are a public
Authorities and Companies Act 1997)
official for the purposes of the Act, talk to an
or a Commonwealth company
authorised officer. These are people in each
» the Australian Federal Police
agency who are appointed by the agency head
to take disclosures.
» intelligence and security agencies: the
Australian Security Intelligence Organisation,
Australian Secret Intelligence Service, Office of
National Assessments, Defence Imagery and
WHAT CAN I DISCLOSE?
Geospatial Organisation, Defence Intelligence
You can disclose information that you believe, on
Organisation and Defence Signals Directorate
reasonable grounds, tends to show ‘disclosable
» the Australian Prudential Regulation Authority
conduct’. Disclosable conduct is conduct by:
» the High Court, Federal Court and any
» an agency (explained in more detail below)
other court created by parliament
» a public official in connection
»
the Office of Official Secretary
with their position
to the Governor-General
» a contracted Commonwealth service
» the Commonwealth Ombudsman
provider in connection with entering
» the Inspector-General of Intelligence
into or giving effect to the contract
and Security (IGIS)
if that conduct:
» a prescribed entity established
by a Commonwealth law
» contravenes a Commonwealth,
» a prescribed person holding an office
state or territory law
established by a Commonwealth law (s 71).
» in a foreign country, contravenes
a foreign law that applies to the
The PID Act extends to Australia’s external
agency, official or service provider
territories (s 4) and to matters outside Australia
» perverts the course of justice
that involve disclosable conduct (s 5).
» is corrupt
3
WHAT IS NOT
WHO CAN I MAKE A PUBLIC
DISCLOSABLE CONDUCT?
INTEREST DISCLOSURE TO?
It is not disclosable conduct just because you
You must make your disclosure to an appropriate
disagree with:
person in order to gain the protections available
» a government policy or proposed policy
under the PID Act. There is a range of options
inside and outside your agency. The PID Act
» action or proposed action by a minister, the
focuses on the reporting and investigating of
Speaker of the House of Representatives
wrongdoing within government, but allows
or the President of the Senate
for reporting outside government in specified
» expenditure or proposed expenditure
limited circumstances.
related to such policy or action (s 31).
Disclosable conduct also does not include judicial
Your own agency – an internal disclosure
conduct, that is, the conduct of judicial officers,
You can report suspected wrongdoing either
the judicial functions of court staff, tribunal
to your current supervisor or manager, or an
staff or tribunal members, or any other conduct
authorised officer of your agency or the agency
related to a court or tribunal unless it is of an
to which you last belonged. Authorised officers
administrative nature and does not relate to
are the agency head and officers they appoint
matters before the court or tribunal (s 32).
under the PID Act (s 36).
Disclosable conduct also does not include the
Each agency must have procedures for dealing
proper performance of the functions and proper
with public interest disclosures, and you should
exercise of the powers of an intelligence agency
consult these. Your agency may set out in its
or its officials (s 33).
procedures how a disclosure should be made.
The conduct of members of parliament is not
Making a disclosure internally gives the agency
covered by the PID Act.
the chance to investigate the matter and remove
A disclosure made before the commencement of
any danger or correct any wrong practices as
the PID Act on 15 January 2014 is not covered by
quickly as possible.
the Act. However, if you make a disclosure after
Supervisors can be a strong source of support
that date, it can relate to conduct that occurred
if you are considering making a disclosure.
at any time before then. In other words, it is the
However, there may be reasons to choose to
date you make the disclosure, not the date of
speak to someone else – for example, you
the conduct, that determines whether the PID
may suspect your supervisor knows about the
Act applies.
wrongdoing and has allowed it to continue, your
A report of wrongdoing in an Australian Public
supervisor may not have an appropriate security
Service agency made before 15 January 2014
clearance, or you may feel more comfortable
may be covered by the whistleblower provisions
talking to an authorised officer.
of the
Public Service Act 1999. You should
cons
ult www.apsc.gov.au (see Circular 2013/08
Other government agencies –
APS whistleblowing scheme and public
an internal disclosure
interest disclosures).
If you have information about suspected
wrongdoing in another public sector agency, you
can make a disclosure to an authorised officer
in that agency. This is also known as an ‘internal
disclosure’.
If the agency has ceased to exist since the
suspected wrongdoing took place, the
appropriate agency is generally the agency that
has taken over its functions (s 35(3)). If you are in
any doubt, seek advice from an authorised officer.
4
If the matter involves an intelligence agency
External disclosure
or intelligence-related information, you have
If you made an internal disclosure under the PID
two options: you can make a disclosure to the
Act, you may later make an ‘external disclosure’
intelligence agency, or to an authorised officer
to any person if:
of the Inspector-General of Intelligence and
Security (IGIS) if you believe on reasonable
» the internal investigation under the PID Act
grounds that it would be appropriate for the
was not completed within 90 days or within
IGIS to investigate (see
www.igis.gov.au).
a timeframe approved by the Ombudsman
or IGIS (an investigation is completed when
For matters that do not concern an intelligence
the report of investigation is finalised), or
agency or intelligence related information, you
» you believe on reasonable grounds
can also make a disclosure to an authorised
that the investigation under the
officer of the Commonwealth Ombudsman,
PID Act was inadequate, or
if you believe on reasonable grounds that
it would be appropriate for the Ombudsman
» you believe on reasonable grounds that
to investigate (ss 26(1), 34).
the agency took inadequate action after
the investigation, whether under the
The PID Act also allows for agencies with
PID Act or other legislation such as the
separate investigative powers under other laws
Ombudsman Act, was completed,
to be prescribed under PID rules as ‘investigative
and
agencies’. If one of those investigative agencies has
the power to investigate the type of wrongdoing
» it is not on balance contrary to
you are reporting, you may make your disclosure
the public interest for an external
directly to them (ss 26(1), 34).
disclosure to be made (s 26).
The PID Act extends to individuals and
You should note that the first two grounds (the
entities that provide goods or services under a
time limit was exceeded or the investigation was
contract with the Commonwealth, concerning
inadequate) only apply to investigations under
wrongdoing related to entering into or giving
the PID Act. If the investigation was carried out by
effect to the contract. If you are concerned
the Ombudsman, IGIS or an investigative agency
about their wrongdoing, you should report those
under another law, those grounds are not available
concerns to the agency that is the principal
reasons for making an external disclosure.
beneficiary of the contract.
If you make an external disclosure, you
must ensure that you do not disclose more
Other people – external and
information than is reasonably necessary to
emergency disclosures
identify the wrongdoing. You must not disclose
intelligence information, including sensitive
You can make a public interest disclosure
law enforcement information. Sensitive law
to other people, including people outside
enforcement information is information
government, in limited circumstances set out
whose disclosure is reasonably likely to
below. In addition to the conditions outlined
prejudice Australia’s law enforcement interests,
below, two restrictions apply to such disclosures:
including interests in avoiding disruption to
» The matter must not include intelligence
law enforcement and criminal investigation,
information or sensitive law enforcement
protecting informants and witnesses, and
information (as defined in s 41) or
protecting the technologies and methods
concern an intelligence agency.
used in dealing with criminal intelligence and
investigation (see the full definition of this
» You may not make a disclosure
to a foreign public official.
and ‘intelligence information’ in s 41).
5
The Act specifies various factors that must
Emergency disclosure
be taken into account in determining that a
If you believe on reasonable grounds that the
disclosure is not contrary to the public interest
information you have concerns a substantial
(s 26(3)). These are:
and imminent danger to the health or safety of
» whether the disclosure would promote
one or more people or to the environment, you
the integrity and accountability of
may make an emergency disclosure to anyone,
the Commonwealth public sector
provided you meet certain requirements:
» the extent to which the disclosure
» The extent of the information you disclose
would expose a failure to
must be only what is necessary to alert the
address serious wrongdoing
recipient of the substantial and imminent
danger. The danger would need to be
» the extent to which it would help to
protect the person who made the
substantial and imminent in the sense that
disclosure from adverse consequences
the physical impact on safety or to the
environment was imminent, and would not
» the principle that disclosures should be
include matters that are not disclosable
properly investigated and dealt with
conduct under the PID Act (such as
» the nature and seriousness of
disagreement with government policy).
the disclosable conduct
» If you have not previously made an
» any risk that the disclosure could damage the
internal disclosure about the matter, or
security or defence of the Commonwealth,
if you have done so and the investigation
or its relations with a state or territory,
is not yet completed, there must be
Norfolk Island or another country
exceptional circumstances justifying
your action. This might include, for
» the principle that Cabinet information
should remain confidential unless it is
example, if investigation was taking too
already lawfully publicly available
long to complete having regard to the
risk to a person’s health and safety.
» if any information was communicated in
confidence by a foreign government or
» As noted above, you must not disclose
authority or an international organisation,
intelligence information, including
the principle that such information should
sensitive law enforcement information.
remain confidential unless consent is given
» any risk that disclosure could prejudice
Lawyers
the proper administration of justice
You may make a disclosure to a lawyer for the
» the principle that legal professional
purposes of seeking legal advice or professional
privilege should be maintained
assistance about a public interest disclosure you
have made or propose to make, but you must
» any other relevant matter.
not disclose intelligence information, including
sensitive law enforcement information (s 26).
If the information you wish to disclose is not
intelligence information (including sensitive
law enforcement information) but you know,
or should reasonably have known, that it is
nonetheless covered by a national security
or other protective security classification,
the lawyer must hold an appropriate security
clearance. You should ask the lawyer about this
before you disclose such information.
It is an offence for the lawyer to disclose the
information or use it for any purpose other than
providing you with advice or assistance (s 67).
6
WHAT HAPPENS IF I DISCLOSE
Making a public
THE INFORMATION OUTSIDE
THESE CIRCUMSTANCES?
interest disclosure
You must use one of the proper avenues to
gain the protections available under the PID
Act. The protections include confidentiality
WHAT SHOULD I DO BEFORE
and immunity from criminal and civil liability
MAKING A DISCLOSURE?
or disciplinary action.
The PID Act requires each public sector agency
This means that you will not receive these
to develop procedures for facilitating and dealing
protections if you give the information to
with public interest disclosures relating to the
someone outside government like a journalist
agency (s 59). You should make your disclosure
or union representative, unless the conditions
in accordance with your agency’s procedures,
for an external or emergency disclosure are met.
which should be published on the intranet and
You may be in breach of your duty to maintain
agency website.
appropriate confidentiality in relation to official
information you have gained in the course of
Before you decide to go ahead, you may want
your work, or be subject to other civil, criminal
to find out more about what you can expect
or disciplinary action.
from the process, what protection and support
are available to you and whether there may be
The limitations on protection under the PID
more appropriate ways to address the matters
Act are there to encourage people to make a
that concern you. You can seek advice from
disclosure to the people and agencies that have
your agency.
the responsibility to take action and have proper
processes in place to manage an investigation
If you believe it is appropriate to make a public
and remedy problems.
interest disclosure to another agency such as
the Ombudsman or IGIS, you can contact them
for similar information.
CAN I DISCUSS THE MATTER
WITH A LAWYER?
You can disclose information to a lawyer for the
purpose of obtaining legal advice or professional
assistance about a public interest disclosure
you have made or propose to make, provided
the information does not include intelligence
information, including sensitive law enforcement
information (s 26). The lawyer may also need
to have an appropriate security clearance
(see p. 6 for further details).
7
CAN I DISCLOSE ANONYMOUSLY?
It is the agency’s responsibility to keep a record
of your disclosure. It is also a good idea to keep
Yes. You do not have to identify yourself when
your own records of what you disclosed and
making a public interest disclosure (s 28(2)).
when, and any responses you received from the
You may want to initially approach the agency
agency. This may assist you later in establishing
anonymously to discuss your concerns about
that you are entitled to protection under the
confidentiality.
PID Act, if that becomes necessary.
You should be aware, however, that anonymous
disclosures, like anonymous complaints, are
often more difficult to investigate.
WHAT INFORMATION
SHOULD I PROVIDE?
Agencies will not be able to seek further
information from you or advise you of any
No particular information is specified. The
action they take if you remain anonymous and
onus is not on you to prove the disclosure; you
uncontactable. They also have the discretion not
only need to put the agency on notice that you
to investigate if you do not provide your name
honestly believe on reasonable grounds that
and contact details or are unable to give them
there has been wrongdoing.
further information or assistance if they need it
(s 48(1)(i)).
Depending on your circumstances, you should
think about covering as many of these matters
If you do identify yourself to an authorised
as possible in your disclosure so as to help the
officer when making your public interest
agency to determine how to proceed:
disclosure, the agency must make every effort
» your name and contact details
to keep your identity confidential (ss 20, 21).
» the nature of the wrongdoing
If you plan to make a disclosure anonymously,
» who you think committed the wrongdoing
ask yourself:
» when and where the wrongdoing occurred
» Have I included all the information I believe
» relevant events surrounding the issue
is relevant so that the authorised officer
would have reasonable grounds to suspect
» if you did anything in response
the disclosable conduct has occurred?
to the wrongdoing
» others who know about the wrongdoing
» Can the information I have provided
be understood without clarification
and have allowed it to continue
or further explanation from me?
» whether you believe your information is a
public interest disclosure under the PID Act
» Is my identity likely to be apparent
when this information is received
(you do not have to describe it that way for it
or an investigation is begun?
to be treated as a public interest disclosure,
but it will assist the agency if you do)
» Should I provide an anonymous
contact method, such as an email
» if you are concerned about possible reprisal
account that does not identify me?
as a result of making your disclosure.
Be clear and factual. Avoid speculation, personal
attacks and emotive language as they divert
DO I HAVE TO DISCLOSE IN WRITING?
attention from the real issues. If you have
information in supporting correspondence or
No. You may make a disclosure orally or in
other documents, such as file notes or a diary of
writing (s 28(1)). You may do this in person, by
events, you should provide that to the authorised
telephone, by letter or email, or via the internet
officer. You can also include the names of
if the agency has an online form for receiving
any people who witnessed the conduct or
disclosures. You should check the agency’s
who may be able to verify what you are saying.
procedures, as they may prefer a written
disclosure.
You should not investigate a matter yourself
before making the disclosure – you may hinder
a future investigation if you do. You should
also be aware that the sooner you raise your
concerns, the easier it may be for the agency
to take action.
8
Even if the information you provide turns out to
In such circumstances, the agency may seek your
be incorrect or unable to be substantiated, your
consent to provide your identifying information
disclosure is protected by the PID Act, provided
to relevant people. You should also recognise
that you:
that even if the staff involved in handling your
» made the disclosure to your supervisor, an
disclosure take the utmost care to protect your
authorised officer, the Ombudsman, the IGIS
identity, they may not be able to prevent your
or other prescribed investigative agency
identity from becoming known.
» honestly believe on reasonable
If it is necessary or highly likely that your identity
grounds that the information tends
will be revealed, the agency should discuss this
to show disclosable conduct.
with you before proceeding. They may seek your
consent to disclose your identity, and they should
take steps to protect you against reprisal (for
WILL MY NAME BE KEPT
example, by making staff aware that criminal or
CONFIDENTIAL?
disciplinary action may be initiated if detrimental
action is threatened or taken against you).
Agencies will make every reasonable effort
to protect your identity.
It is a criminal offence for a public official who
WHAT ARE MY OBLIGATIONS?
is involved in handling your disclosure to reveal
After making a disclosure, you should not
your identifying information to anyone else
discuss the details with anyone who does not
without your consent or use it for another
need to know. Discussions with them will not
purpose unless it is for:
be covered by the protections in the PID Act.
»
the purposes of the PID Act
You should be discreet about the fact that
»
an investigation by the
you have made a public interest disclosure,
Ombudsman or the IGIS
the information in your disclosure and any
»
another Commonwealth law
information that would identify someone you
or prescribed law
allege has acted wrongly. The investigator must
or
make sure that everyone involved is treated
fairly and impartially.
» the information has already lawfully
been published (s 20).
You should also be prepared to provide further
Your identifying information must also not be
information to help the investigator as the
disclosed to a court or tribunal except when
investigation proceeds, as this will often be
necessary to give effect to the PID Act (s 21).
required. All public officials must use their best
endeavours to assist in any investigation (s 61).
In addition, agencies are bound by obligations
under the
Privacy Act 1988 in relation to storing
You must not knowingly provide false or
personal information securely and limiting its use
misleading information, as your liability for doing
and disclosure.
so will not be covered by the protections under
the PID Act (s 11).
You should be aware, though, that the protection
the PID Act provides is not absolute. For
example, your identity, or information that would
effectively identify you, may need to be disclosed
to certain other people if that is necessary:
» to investigate the disclosure effectively
(for example, if the wrongdoing you are
reporting was directed solely against you), or
» to protect you against reprisals (for example,
if there are concerns that it is impossible for
you to remain in your current workplace).
9
DEALING WITH AN INTERNAL DISCLOSURE
Disclosure to the
Disclosure
Disclosure to
Ombudsman, IGIS or
to supervisor
authorised offi cer
prescribed investigative
agency if appropriate
Supervisor passes on
Authorised offi cer
May allocate to
to authorised officer
can make inquiries
appropriate agency
Conduct investigation
(can use own
investigative powers)
No reasonable basis
to consider it is an
internal disclosure
Decide not to investigate
Allocate to principal officer
of own agency and/or other
Advise discloser
agency for investigation
Advise discloser
Conduct investigation within
Decide not to investigate
90 days (Ombudsman/
IGIS may extend time)
Advise Ombudsman/
Advise discloser
Copy of report to discloser
IGIS with reasons
with reasons
Principal officer to take
appropriate action
10
After a disclosure
AFTER THE INVESTIGATION
is made
After a public interest disclosure has been
investigated under the PID Act, the principal
officer must prepare a report that sets out the
matters considered, how long the investigation
ALLOCATION AND INVESTIGATION
took, any findings that were made, any action
either recommended or taken, any claims or
The first step is that an authorised officer will
evidence of detrimental action to you, and the
examine the information you have supplied and
agency’s response to those claims (s 51).
decide whether it is a disclosure covered by the
PID Act. An authorised officer is the agency head
Detriment means any disadvantage to you,
and people they appoint to that role. They may
including dismissal, injury, discrimination between
make preliminary inquiries and may ask you for
you and other employees or alteration of your
further information.
position to your disadvantage (s 13(3)). It does
not include administrative action that is reasonable
Unless there is no reasonable basis for
to protect you from detriment (s 13(3)).
considering the matter to be a public interest
disclosure, the matter will then be allocated for
You will be given a copy of the investigative
investigation. This will normally occur within
report within a reasonable time (provided
14 days. The matter may be allocated within the
that contacting you is reasonably practicable)
same agency, or to one or more other relevant
(s 51(4)). Some material may be deleted from
agencies, including the Ombudsman or IGIS.
the copy you receive, if it is likely to identify
If you consent, your name and contact details
any person, is intelligence information, would
will be provided to the person receiving the
be exempt under the Freedom of Information
allocation.
Act 1982 or would contravene a publication
restriction or protective security classification.
The principal officer (agency head) or their
delegate must investigate the disclosure,
If the investigation is conducted under
unless one of the exemptions in s 48 apply.
another law by the Ombudsman, IGIS or
For example, if the matter does not relate to
investigative agency, you will be informed that
serious disclosable conduct, or it is already under
the investigation is complete (s 49(3)). The
investigation, or your disclosure is frivolous
information that you can receive about the
or vexatious. It may also be impracticable to
outcome will depend on the law under which
investigate because of the age of the disclosure,
the investigation was conducted.
or because you have not disclosed your name
or contact details or have failed to give the
investigator the information or assistance they
HOW LONG WILL THE
requested.
PROCESS TAKE?
If the matter is investigated by the Ombudsman,
While a straightforward matter may be
IGIS or a prescribed investigative agency, they
completed quickly, more complex issues, where
may use their separate investigative powers
significant evidence needs to be gathered, may
rather than conducting the investigation under
take months to complete. Investigations must be
the PID Act (s 49). For example, the Ombudsman
completed (that is, an investigation report must
has powers to investigate complaints under
be completed) within 90 days of the date the
the
Ombudsman Act 1976, and may exercise
matter was allocated for investigation (s 52(1)).
the discretion not to investigate, or investigate
further, under that Act.
However, the Ombudsman, or the IGIS in the
case of intelligence agencies, may grant one
More details on the investigation process are
or more extensions of time. If an extension is
in the Agency Guide to the
Public Interest
granted, the Ombudsman or the IGIS will inform
Disclosure Act 2013.
you and give you reasons for the extension
(s 52(5)). The principal officer will also let you
know about the progress of the investigation
(s 52(5)). Failing to complete an investigation
within time does not invalidate the investigation
(s 52(6)).
11
WILL I BE KEPT INFORMED?
Such information may also be deleted from the
reasons you are given if an agency decides not
The agency will notify you at various stages in
to investigate your disclosure.
the process, provided they have your contact
details. You will be advised:
If the investigation is conducted under other
»
when your disclosure is
legislation, the information you will receive at
allocated for investigation
the end of the investigation will depend on
that legislation.
»
if the agency decides to investigate
»
if the investigation is under the PID Act,
It is important to remember that you do not
the estimated length of the investigation
‘own’ the public interest disclosure. It is up to
agencies to determine how best to resolve
» if the agency decides not to investigate,
matters by identifying problems and taking
the reasons for the decision and any
corrective action.
action that might be available to you
under other Commonwealth laws
» if an investigation is conducted under
WHAT HAPPENS IF THE DISCLOSURE
the PID Act and an extension of time
is granted by the Ombudsman or IGIS,
IS SUBSTANTIATED?
the progress of the investigation
What happens at the end of an investigation will
» after the investigation report is completed.
vary with the circumstances. The principal officer
must take appropriate action in response to
You may be advised of the allocation decision
recommendations and other matters contained
and the decision not to investigate in the same
in the investigation report. Actions might include:
document (for example, if the two decisions
are made very close together).
» commencing Code of Conduct
proceedings under the
Public Service
The agency should keep you up to date with
Act 1999 or other disciplinary process
reasonable information on what is being done
» mediation or conciliation of
in response to your disclosure. If you have not
a workplace conflict
heard anything within a reasonable period, ask
the agency for an update. You may not be given
» an internal audit or other review of an issue
certain information if, for example, it would
or the operations of a particular unit
jeopardise an ongoing investigation.
» implementing or changing policies,
procedures or practices
After an investigation under the PID Act is
» referral of the matter to the police or
completed, you will be given a copy of the
another body that can take further action.
investigation report (s 51). The version you
receive may have some information deleted
if including it would cause the document:
» to be exempt under the
Freedom
of Information Act 1982 (exempt
material includes commercially valuable
information, material obtained in
confidence, Cabinet information, personal
information whose disclosure would be
unreasonable and contrary to the public
interest, and information that could
prejudice an investigation or affect the
effectiveness of agency audit procedures)
»
to have a national security or
protective security classification, or
»
to contain intelligence information, including
sensitive law enforcement information.
12
WHAT HAPPENS IF THE DISCLOSURE
You may also have the right to release the
IS NOT SUBSTANTIATED?
information publicly if doing so is not contrary
to the public interest and it does not include
There may be a number of reasons why your
intelligence or sensitive law enforcement
public interest disclosure is not substantiated,
information (see p. 5–6 for the conditions
including insufficient evidence to find on the
for making external disclosures).
balance of probabilities that any disclosable
conduct has occurred. It does not mean that
making a disclosure was not worthwhile. The
HOW AM I PROTECTED?
information you provide may be useful in making
your agency aware of possible gaps in its policies
If you make a public interest disclosure under
or procedures, or lead to consideration of how
the Act (even if an investigation subsequently
to prevent similar issues in the future. Keeping
determines that there was no wrongdoing),
silent about problems can lead to bigger issues
you are protected in two ways.
in the longer term.
If you do not know what happened after you made
Liability
your disclosure or the reasons you were given are
You cannot be subject to any civil, criminal or
not clear to you, you are entitled to ask. Talk to the
administrative liability, including disciplinary
authorised officer who handled your disclosure.
action, for making a disclosure in accordance
Regardless of the outcome, you will still be
with the PID Act, and no contractual or other
protected under the Act for making a public
remedy can be enforced against you on the basis
interest disclosure. Your agency should continue
of your disclosure. This means, for example, that
to support you for having done the right thing
you would not be committing an offence against
by bringing the matter to their attention.
the official secrets provisions of the
Crimes
Act 1914, or be liable for defamation. Nor can a
contract to which you are a party be terminated
on the basis that your disclosure is a breach of
WHAT IF I AM NOT SATISFIED
contract.
WITH THE AGENCY’S ACTION?
This protection does not apply if you knowingly
If you are unhappy with an agency’s decision
make a statement that is false or misleading. It
not to investigate a matter, you can approach
also does not apply if you knowingly contravene,
the agency. The agency procedures may give
without a reasonable excuse, certain publication
you a right to an internal review of the decision.
restrictions listed in the PID Act (these generally
Similarly, if you believe on reasonable grounds
concern protecting the identity of people by
that an investigation was inadequate or the
such means as court or tribunal orders that
agency’s response to the investigation was
information not be published, witness protection
inadequate, you may wish to raise the matter with
and law enforcement mechanisms).
the agency. Consult the agency’s public interest
disclosure procedures, or talk to an authorised
Making a disclosure about matters that include
officer about your options.
your own wrongdoing also does not protect
you from liability for your wrongdoing.
If you are not satisfied with the explanation
and believe that the agency has not acted
appropriately, you may be able to have the
Ombudsman (or the IGIS in the case of
intelligence agencies) consider the matter by
making a complaint about the agency. The
Ombudsman or the IGIS may investigate your
complaint or may refer it back to the agency for
further action. The Ombudsman’s office or the
IGIS will let you know what it decides to do.
13
Reprisal
If you are considering legal action in relation
to reprisal, you should first make sure that the
You are also protected against reprisal. It is
agency knows your concerns so that they can
an offence for any person to cause you any
take any appropriate action to protect you. It
detriment because they suspect or believe
is a good idea to talk the matter over with an
that you made or will make a public interest
authorised officer or your supervisor. Taking
disclosure (s 19).
legal action is expensive and can be a stressful
Detriment includes any disadvantage to you,
process, and you should consider whether you
including dismissal, injury, discrimination
will be able to prove your case and the possible
between you and other employees or alteration
adverse effects on you (financial and emotional)
of your position to your disadvantage (s 13(3)).
if your action fails.
It does not include administrative action that
You should also be aware that making a
is reasonable to protect you from detriment
disclosure does not exclude you from reasonable
(s 13(3)), for example, moving you temporarily
management action for any unsatisfactory
to another work area.
performance or wrongdoing on your part –
If you believe you are being or may be subject
such action is not a reprisal.
to a reprisal, you should let your agency know.
Each agency head has a responsibility to put
procedures in place for assessing risks that
WHERE CAN I GET SUPPORT?
reprisals might be taken, and to ensure that
public officials who belong to the agency
Even when an agency handles the public interest
are protected from detriment or threats of
disclosure process well, making a disclosure can
detriment related to public interest disclosures
be a stressful experience. You should be prepared
(s 59). The agency head’s responsibility to
for this, and make sure you seek support from
protect public officials belonging to their agency
appropriate people.
applies even if the public official has made
a disclosure relating to another agency, or a
You are entitled to support from your agency
different agency (such as the Ombudsman or
when making and after you have made a public
IGIS) is investigating the disclosure.
interest disclosure. The head of your agency
must take reasonable steps to protect public
You also have the right to apply to the Federal
officials who belong to the agency (including
Court for compensation for loss, damage or
staff of contracted service providers) from
injury you suffer from a reprisal or threat of
detriment and threats of detriment.
reprisal (s 14). Your claim can be not only against
the person causing the reprisal but also their
Although an investigator may be able to provide
employer. The employer has a defence if they
general information about the process, they are
took reasonable precautions and exercised due
not the most appropriate person to support you.
diligence to avoid the reprisal (s 14(2)).
Their role is to investigate matters objectively
and impartially, and they may sometimes reach
You also have the right to seek an injunction
a conclusion that you were not expecting, based
from the Federal Court to prevent a reprisal or
on the evidence they have.
order an apology, or to make other appropriate
orders (s 15). If your employment was terminated
Your agency should be able to link you to
as a result of a reprisal you may apply to the
appropriate people you can trust. They may
Federal Court for reinstatement (s 16).
have established an internal network of support
people you can talk to. Larger agencies may
Making a public interest disclosure is recognised
have professional staff such as welfare officers.
for the purposes of the
Fair Work Act 2009
Many agencies provide access for their staff
(s 22), which protects employees from any
to counselling services. Remember that while
unlawful adverse action based on their workplace
your discussions with people authorised under
rights. However, to avoid duplication, you cannot
the PID Act (including a lawyer) are protected,
seek remedies under the PID Act if you have
discussions with other people are not. You
sought remedies under the
Fair Work Act 2009
should not disclose any confidential information
arising from the same circumstances (s 22A).
to them, including identifying people you allege
have committed wrongdoing, but you may find it
helpful to talk about what you are going through.
14
Some key points
Further information
to remember
Have a look at your agency procedures on
handling public interest disclosures – these
Disclosures under the PID Act are about matters
should be available on the agency’s website
that it is in the public interest to investigate
and intranet. More information on the PID
and correct where problems are found. You
scheme, including fact sheets and guides,
must have a reasonable belief in what you are
is on the Ombudsman’s website at
reporting – this is an objective test based on
www.pid.ombudsman.gov.au.
what a reasonable person would believe. You
should be able to provide information to support
You may also like to look at the PID Act, PID rules
an allegation, but you do not need to prove it.
and standards made by the Ombudsman under
Nor should you investigate the matter yourself,
the PID Act – go t
o www.comlaw.gov.au for the
as this may prejudice a future investigation.
most up-to-date version, or follow the links from
the Ombudsman’s website.
Remember that disagreement with government
policy or expenditure is not a public interest
For information about the IGIS, se
e www.igis.gov.au.
disclosure.
For information about breaches of the APS Code
of Conduct, se
e www.apsc.gov.au. Information
Remember also that there are further
about Australian workplace rights and rules
restrictions on who you can make a public
and the role of the Fairwork Ombudsman is
interest disclosure to where intelligence
at www.fairwork.gov.au.
information or sensitive law enforcement
information is concerned.
Your identity will be kept confidential, subject
to the requirements of the PID Act. You are
protected from reprisals and from civil and
criminal liability if you follow the procedures
in the Act and disclose information only to the
people who need to be involved.
Your agency should have authorised officers
who can receive your disclosure, but you may
report to your supervisor if you prefer. Your
agency will have procedures to deal with public
interest disclosures, and you should make
yourself familiar with those. The agency must
respond to your disclosure, and if the matter
is investigated under the PID Act you have
a right to a copy of the investigation report and
to know what action is being taken, with the
exception of any material that must remain
in confidence.
15
Document Outline
