Public interest disclosures: Agency procedures
1.1 These procedures set out how the Australian Institute of Family Studies (AIFS) facilitates and deals with public interest disclosures.
1.2 These procedures are established under the Public Interest Disclosure Act 2013 (PID Act) and the Public Interest Disclosure Rules (the Rules) made under s 83 of that Act and the Public Interest Disclosure Standards (the Standards) made under s 74 of that Act. These procedures must be applied and interpreted in a manner not inconsistent with the Act, the Rules and the Standards.
1.3 The Commonwealth Ombudsman's Agency Guide to the Public Interest Disclosure Act 2013 (PDF 750 KB), forms part of these procedures to the extent expressly stated in these procedures.
2 AIFS commitment
2.1 AIFS is committed to complying with all applicable laws and with best practice. Corrupt practices, breaches of the law and other conduct disclosable under the Act are contrary to our values. If they occur, reporting them is encouraged so they can be addressed properly.
2.2 The objective of these procedures is to promote the integrity and accountability of the administration of AIFS in accordance with the Act, consistent also with the APS Values and Code of Conduct, and to provide a framework for effective public interest disclosures.
2.3 Each public interest disclosure made will be handled confidentially, and the discloser protected in accordance with the Act.
2.4 These procedures apply to all AIFS employees (current and former) as well as people and bodies providing services under a Commonwealth contract, including subcontractors.
3 Background and context
3.1 The PID Act creates a public interest disclosure scheme that promotes internal reporting of suspected wrongdoing in public sector agencies by providing a framework and protection for public officials who make qualifying disclosures under the scheme.
3.2 A disclosure must be made to an appropriate person in order to gain the protection available under the PID Act (s 26). This is explained in more detail in sections 8 and 9 of these procedures.
3.3 The PID Act complements existing notification, investigation and complaint handling schemes in the Commonwealth public sector.
4 What is a public interest disclosure?
4.1 A public interest disclosure may be an internal disclosure, an external disclosure or an emergency disclosure, as set out in section 26(1) of the PID Act.
4.2 An internal disclosure is made when:
- a person who is or has been a public official
- discloses to their supervisor or manager, or an authorised officer of an agency
- information which tends to show, or the discloser believes on reasonable grounds tends to show, one or more instances of disclosable conduct.
4.3 In limited circumstances a public official may disclose such information to a person outside government - this is known as an external disclosure or emergency disclosure.
5 Who can make a disclosure?
5.1 An individual must be a current or former "public official", as defined in s 69 of the PID Act, to make a public interest disclosure. This is a broad term that includes Australian Government public servants, members of the defence force, staff and directors of Commonwealth companies, statutory office holders and staff of Commonwealth service providers. A person may also be deemed by an authorised officer to be a public official.
6 What can be disclosed?
6.1 A public official can disclose information that they believe, on reasonable grounds, tends to show "disclosable conduct".
6.2 Disclosable conduct is conduct by the agency, a public official in connection with their position or a contracted Commonwealth service provider if that conduct:
- contravenes a Commonwealth, state or territory law;
- in a foreign country, contravenes a foreign law that applies to the agency, official or service provider;
- is corrupt;
- perverts the course of justice;
- results in wastage of public money or public property;
- is an abuse of public trust;
- unreasonably endangers health and safety;
- endangers the environment;
- is misconduct relating to scientific research, analysis or advice; or
- constitutes maladministration, including conduct that is unreasonable, unjust, oppressive or negligent.
6.3 Disclosable conduct also includes conduct by a public official that involves or is engaged in for the purposes of abusing their position as a public official, and conduct that could give reasonable grounds for disciplinary action against the public official.
6.4 For further information refer to the section ‘What can be disclosed’ in the Agency Guide that forms part of these procedures.
7 What is not disclosable conduct?
7.1 It is not disclosable conduct just because a person disagrees with:
- a government policy or proposed policy;
- expenditure or proposed expenditure related to such policy or action; or
- an action or proposed action by a minister, the Speaker of the House of Representatives or the President of the Senate.
7.2 Disclosable conduct by a public official must be conduct in connection with their position as a public official. In other words, conduct that is wholly private and has no bearing on their position as a public official is not disclosable conduct.
8 To whom can a public interest disclosure be made?
8.1 A disclosure must be made to an appropriate person in order to gain the protection available under the PID Act (s 26).
8.2 A public interest disclosure may be made as an internal disclosure within AIFS to the Director, to a person’s current supervisor or to an authorised officer appointed by the Director.
8.3 The following people have been authorised to receive disclosures and are authorised persons for this purpose:
- the AIFS Deputy Director (Corporate and Strategy); and
- the AIFS Deputy Director (Research).
8.4 Additional authorised persons may be appointed where necessary. The Act sets out other people or bodies to whom, or which, public interest disclosures may be made and the circumstances in which such disclosures may be made.
8.5 A public official may make a public disclosure to their "supervisor" (s 26). A supervisor includes any public official who supervises or manages the discloser.
8.6 If the supervisor or manager believes that the information given to them concerns, or could concern, disclosable conduct, they must give that information to an authorised officer of AIFS as soon as reasonably practicable. A manager or supervisor should also seek the consent of the discloser to pass on their personal information.
8.7 Managers and supervisors also play a key role in ensuring that the AIFS workplace culture supports the making of public interest disclosures.
8.8 In certain circumstances, a disclosure may also be made as an external disclosure to an outside person or body, such as the Ombudsman. For further information refer to the section ‘Who can a public interest disclosure be made to’ in the Agency Guide that forms part of these procedures.
9 Protection under the PID Act
9.1 If a public interest disclosure is made in accordance with the PID Act, the discloser will receive the following protections:
- the discloser’s identity will be kept confidential as reasonably practicable;
- the discloser will be immune from civil, criminal or administrative liability;
- no contractual or other remedy may be enforced or sanction imposed on the discloser on the basis of making the disclosure;
- a contract to which the discloser is a party must not be terminated on the basis that the public interest disclosure constitutes a breach of the contract; and
- a discloser will have legal protection from reprisals through relevant criminal offences, a right to apply for an injunction and a right to apply for compensation for loss damage or injury due to a reprisal.
10.1 Public officials who wish to make a public interest disclosure relating to AIFS can do so orally or in writing.
10.2 If the disclosure is made orally, a record will be made of what is said and the discloser will be asked to sign the record as being correct.
10.3 Disclosers are encouraged to provide as much information as possible to assist an authorised officer to deal with a public interest disclosure appropriately and promptly.
10.4 Disclosers are advised that they should be as clear and factual as possible. The discloser should not investigate the matter themselves before making the disclosure as doing so may hinder any future investigation.
10.5 All disclosures will be given a unique reference number that will be provided to the discloser.
10.6 A discloser may make a public interest disclosure anonymously. Anonymous disclosures will be acted on wherever possible.
10.7 It should be noted that there are a range of reasons why staff may consider identifying themselves to an authorised officer, or at the least providing a means of contact. These include that 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 information, the matter may not proceed.
10.8 The PID Act requires agencies to keep a discloser's identity confidential, subject to limited exceptions, including the discloser's consent (ss 20, 21). Agencies are also bound by obligations under the Privacy Act 1988 in relation to storing personal information securely and limiting its use and disclosure.
10.9 AIFS will make every reasonable effort to protect a discloser's identity.
10.10 The discloser's identity or information that would effectively identify them may, however, need to be disclosed to certain other people if that is necessary, including to investigate the disclosure effectively or protect them against reprisals. In cases such as these, this will be discussed with the discloser before proceeding.
10.11 Disclosers should not discuss the details of their disclosure with anyone who does not need to know. Discussions with these people are not covered by the protections of the PID Act.
11 Support under the PID Act
11.1 If a public interest disclosure is made in accordance with the PID Act, the discloser will receive support from AIFS throughout the disclosure process. This may include:
- offering information and support about what options are available;
- providing the discloser with any information about the support networks available (e.g., employee assistance program, work health and safety officers, friends and family); and
- providing the discloser with information about the reasonable steps AIFS will take to protect them.
12 Role and responsibilities
12.1 The Director is the principal officer under the PID Act. The Director has specific responsibilities under the PID Act, including:
- establishing procedures for facilitating and dealing with public interest disclosures;
- ensuring appropriate systems and strategies are in place to provide support to a person who makes a disclosure and minimises any risks of detrimental action against them; and
- ensuring disclosures are properly investigated.
12.2 Authorised officers are officers of an agency authorised in writing by the principal officer for the purposes of the PID Act (s 36). They have a range of decision-making, notification and other responsibilities under the PID Act, including:
- receiving disclosures from current or former public officials about disclosable conduct (s 26);
- deeming a person to be a public official to facilitate the making of a public interest disclosure (s 70);
- informing a person who may be unaware of the PID Act requirements that information that the authorised officer reasonably believes could concern disclosable conduct could be treated as an internal disclosure, explaining the requirements of the PID Act and advising the person of any designated publication restrictions (as defined in s 8) that may affect disclosure (s 60);
- assessing reported information to determine if there are no reasonable grounds to believe the information could be considered to be a public interest disclosure (s 43(2));
- making any preliminary inquiries necessary to make an allocation decision (s 43(4));
- allocating all or part of the disclosure to the principal officer of their agency and/or another agency, with that agency’s consent (ss 43(1), (6));
- informing the principal officer of each relevant agency, and the Ombudsman or Inspector General of Intelligence and Security (IGIS), as appropriate, of allocation decisions and associated information (ss 44(1), 44(1A);
- informing the discloser of the allocation decision (s 44(2));
- consenting to the allocation of a disclosure by an authorised officer of another agency (s 43(6)); and
- advising the discloser of a decision not to allocate, the reasons why and any other course of action that may be available under Commonwealth law (s 44(3)).
Managers and supervisors
12.3 Managers and supervisors are responsible for receiving public interest disclosures made to them by their staff. If a manager or supervisor receives information that concerns, or could concern, disclosable conduct, they must give that information to an authorised officer as soon as reasonably practicable. A manager or supervisor must seek the consent of the discloser to pass on their personal information.
12.4 Managers and supervisors play a key role in ensuring that the AIFS workplace culture supports the making of public interest disclosures. Managers and supervisors should have an understanding of the PID Act and be approachable to staff wishing to raise concerns.
12.5 The Director is responsible for investigating disclosures received and assessed in accordance with the PID Act. The Director may delegate this function to an officer within AIFS (Investigation Officer) on a case-by-case basis. The Investigation Officer will not be appointed to undertake an investigation if it is considered that they have an actual or perceived conflict of interest in relation to the disclosure.
13 Risk assessment
13.1 When a public interest disclosure is received, the risk of reprisals being taken against the discloser will be assessed. This assessment involves assessing the specific behaviour and circumstances that may result in reprisals and then putting appropriate strategies to prevent or contain them.
13.2 The risk assessment will be undertaken as soon as possible after a disclosure is received.
13.3 If a disclosure is made to a manager or supervisor and the discloser wishes their identity to remain anonymous, the manager or supervisor will conduct the risk assessment.
13.4 The risk assessment should, at a minimum, cover the following four steps:
- identify: the risks of reprisals or workplace conflicts;
- assess: the likelihood and consequence of reprisals or related workplace conflict;
- control: have strategies in place to prevent or contain reprisals or related workplace conflict; and
- monitor and review: the implementation and effectiveness of the strategies.
13.5 For further information, refer to the section on Risk Assessment in the Agency Guide that forms part of these procedures.
14 Investigating a public interest disclosure
14.1 If an authorised officer determines that the disclosure is in fact a public interest disclosure, the matter must be allocated for investigation. In most instances, the matter will be allocated to AIFS.
14.2 An authorised officer must notify the principal officer and the discloser of their decision to allocate the matter for investigation. At this stage, the discloser should also be notified of an Investigation Officer’s powers to:
- decide not to investigate the disclosure; and
- decide not to investigate the disclosure once it has commenced.
14.3 The Investigation Officer may decide not to investigate, or may discontinue an investigation, only on a ground set out in s 48; that is if:
- the discloser is not a current or former public official;
- the information does not to any extent concern serious disclosable conduct;
- the disclosure is frivolous or vexatious;
- the disclosure is the same or substantially the same as another disclosure which has been or is being investigated under the PID Act;
- the disclosure is the same or substantially the same as a disclosure already investigated or currently being investigated under Commonwealth law and:
- it would be inappropriate to conduct another investigation at the same time; or
- the Director/Investigation Officer is reasonably satisfied that there are no matters that warrant further investigation;
- the discloser has advised the Investigation Officer that they do not wish the investigation to be pursued, and the Director/Investigation Officer is reasonably satisfied that there are no matters that warrant further investigation; or
- it is impracticable for the disclosure to be investigated because:
- of the age of the information;
- the discloser has not revealed their name and contact details; or
- the discloser refuses or fails, or is unable, to give the Investigative Officer the information or assistance they requested.
14.4 The Investigation Officer must, as soon as reasonably practicable, inform the discloser whether the disclosure will be investigated. The discloser will also be advised of the estimated time the investigation is likely to take.
14.5 If the disclosure will not be investigated, the Investigation Officer will inform the discloser the reasons for deciding not to investigate and other courses of action that might be available to the discloser under other Commonwealth laws.
14.6 The Investigation Officer must also notify and provide their reasons not to investigate a disclosure to the Ombudsman.
14.7 An Investigation Officer must ensure that a person against whom allegations are made is accorded procedural fairness.
14.8 AIFS will also provide support to an AIFS staff member who is subject to an allegation made in a public interest disclosure. This may include:
- offering information and support about what options are available; and/or
- providing the discloser with any information about the support networks available (e.g., employee assistance program, work health and safety officers, friends and family).
14.9 An Investigation Officer must complete an investigation (including the investigation report) within 90 days of the disclosure allocation.
14.10 If more time is needed, the Investigation Officer may seek an extension of time from the Ombudsman in advance of the 90-day expiry period. If the Ombudsman grants an extension, the Investigation Officer must notify the discloser, as soon as reasonably practicable after the extension is granted and provide an update about the progress of the investigation.
14.11 An investigation report must include the following information:
- the matters considered in the course of the investigation;
- the duration of the investigation;
- the Investigation Officer’s findings (if any);
- the action (if any) that has been, is being, or is recommended to be taken;
- any claims made about, and any evidence of, detrimental action taken against the discloser, and AIFS response to those claims and that evidence;
- whether there have been one or more instances of disclosable conduct;
- any regulations, rules, administrative requirements or similar matters to which the disclosable conduct relates;
- an explanation of the steps taken to gather evidence; and
- a summary of the evidence, as well as any findings and recommendations made based on the evidence.
14.12 The discloser must be provided with a copy of the final investigation report (with specified material omitted if necessary (s 51(5)) within a reasonable time.
Conclusion of investigation
14.13 Any action that AIFS may undertake (if any) will depend on the circumstances of each investigation.
14.14 The Director is responsible for taking appropriate action in response to recommendations and other matters contained in the investigation report. These actions might include but are not limited to:
- commencement of Code-of-Conduct proceedings under the Public Service Act 1999 or another disciplinary process;
- referral of the matter to the police or another body that can take further action;
- mediation or conciliation of a workplace conflict;
- an internal audit or other review of an issue or the operations of a particular unit;
- implementing or changing policies, procedures or practices; and/or
- conducting training and awareness sessions for staff.
14.15 For further information, refer to the section After the Investigation in the Agency Guide that forms part of these procedures.
14.16 If a discloser is not satisfied with AIFS’ decisions relating to their disclosure, they may raise this with the Ombudsman.
Record of allocating the handling of a disclosure
15.1 When an authorised officer of AIFS allocates the handling of a disclosure to one or more agencies (including AIFS), an appropriate written record is to be kept 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 agency to which the allocation is made.
Records of the discloser being informed of the allocation decision
15.2 Appropriate records must be kept of whether the discloser was notified of the decisions set out in paragraphs 14.4 and 14.6 of these procedures. Those records should include:
- the day and time the discloser was notified;
- the means by which the discloser was notified; and
- the content of the notification.
15.3 Detailed records should be kept throughout the disclosure, investigation and post investigation process.
15.4 Public interest disclosure records must be kept in a secure place.
16 Assistance to the Ombudsman
16.1 AIFS will provide information requested by the Ombudsman for the purposes of preparing the Ombudsman’s annual report.
16.2 Any information provided to the Ombudsman shall be consistent with any standards set by the Ombudsman.
16.3 AIFS staff will use their best endeavours to assist the Ombudsman to perform its functions under the PID Act.
- Commonwealth Ombudsman Guide: Speaking Up About Wrongdoing (December 2013, version 1) (PDF 174 KB) <www.ombudsman.gov.au/docs/Speaking_up_about_wrongdoing.pdf>
- Commonwealth Ombudsman website <www.ombudsman.gov.au>
- Public Interest Disclosure Act 2013 <http://www.comlaw.gov.au/Details/C2013A00133>