Circular No 2001/4 : Whistleblowers' reports

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The purpose of this Circular is to clarify:

the interaction of an agency's investigation of whistleblowers' reports and procedures to determine whether misconduct has occurred, highlighting the two-staged approach required by the legislation;
the role of the Public Service Commissioner and the Merit Protection Commissioner ('the Commissioners') when a whistleblower's report is made to them, either directly or following consideration of the report within an agency; and
the extent of an agency's obligation to inform a person making a whistleblower's report ('whistleblower') about any misconduct action that may arise from an investigation of their report.

Interaction of an Agency's inquiry into a whistleblower's report and misconduct procedures

2. Public Service Regulation 2.4 requires Agency Heads to establish procedures for dealing with whistleblowers' reports. If a report is made to an Agency Head, or to an authorised person, he or she is required to inquire into it, unless he or she considers the report to be frivolous or vexatious (regulations 2.4(2)(d),(e)). An Agency Head may also authorise another person to investigate the report (regulation 2.4(2)(d)(ii)).

3. Section 15 of the Public Service Act 1999 sets out the requirements for dealing with breaches of the Code of Conduct. Subsection 15(3) requires Agency Heads to establish procedures for determining whether an employee has breached the Code and subsection 15(1) provides that an Agency Head may impose a sanction where an employee has been found to have breached the Code.

4. Whether a report is being dealt with in an agency or by the Commissioners, the legislative framework envisages a separation between the processes for inquiring into the report and the processes for investigating and determining whether an employee or employees have breached the Code of Conduct.

5. Where an APS employee makes a report alleging a breach of the Code of Conduct to an Agency Head or a person authorised by the Agency Head to receive the report:

the Agency Head must, unless the report is considered to be frivolous or vexatious, inquire into the allegations and determine whether or not there is sufficient evidence to justify an investigation under the Agency Head's procedures for dealing with breaches of the Code of Conduct. In appropriate cases, where the report alleges what amounts to criminal conduct, the matter should be referred to the Australian Federal Police. The person making the inquiry must make a decision, either that the procedures to determine whether a breach of the Code of Conduct by a particular employee or employees has occurred will be invoked, or that such an investigation is not warranted. When this decision is made, the inquiry under the whistleblowing procedures is complete, unless the whistleblower chooses to exercise any right he or she may have to make a report to the Commissioners.
if the decision is that an investigation to determine whether a breach of the Code of Conduct by a particular employee or employees has occurred is warranted, the Agency Head is required to appoint a person to conduct the investigation in accordance with the agency's misconduct procedures established under subsection 15(3). The matter is then dealt with as any other investigation of misconduct initiated by management would be.

Commissioners' functions

6. The functions of the Public Service Commissioner are set out in section 41(1) of the Act and those of the Merit Protection Commissioner are set out in section 50(1). Included in these functions for both Commissioners is inquiring into whistleblowers' reports made to the Commissioner (or to a person authorised by the Commissioner) (s. 41(1)(c) and s. 50(1)(a) of the Act). Also relevant is Division 2.2 of Part 2 of the Public Service Regulations. Whistleblowers' reports may be made to the Commissioners in two circumstances:

where the Commissioner agrees that whistleblowers' reports relates to an issue that would be inappropriate to report to the employee's Agency Head (regulation 2.4(2)(c)); or
where an employee who has made a report within their agency and is not satisfied with the outcome of the investigation of the report (regulation 2.4(2)(g)).

7. Where the Commissioners receive a report under the above circumstances, the regulations require that, unless they consider the report to be frivolous or vexatious, the Commissioners must investigate the report or authorise another person to investigate it (regulations 2.5(2) and 2.6(2)). In appropriate cases, where the report alleges what amounts to criminal conduct, the Commissioners will refer the matter to the Australian Federal Police.

8. Experience with cases handled by the Commissioners has brought to light a need to clarify their functions and powers, particularly in relation to any misconduct action that may follow a Commissioner's consideration of a report. When the Commissioners inquire into the allegations made in whistleblowers' reports, their task is to determine whether a recommendation should be made to the Agency Head to commence action under the Agency Head's procedures for determining breaches of the Code of Conduct. The Commissioners do not have the power to reach any determination about whether the alleged misconduct has actually occurred. Any such determination must only be made under procedures established under subsection 15(3) of the Act by an Agency Head. An Agency Head, as provided by subsection 15(1) may impose a sanction, where the employee or employees have been found to have breached the Code of Conduct. The Commissioners do not have the power to impose a sanction.

Advising a whistleblower about subsequent misconduct action

9. A further issue relates to the extent of an agency's obligation to advise a whistleblower of misconduct action arising from their original report. A whistleblower is essentially an informant, assisting management in the performance of its function to maintain the standards of conduct set out in the Code of Conduct and, as such, should be advised whether or not action will be taken to determine whether there has been a breach of the Code of Conduct. This will allow them to exercise their right under regulation 2.4(2)(g) to determine whether they are satisfied with the outcome of the whistleblowing inquiry.

10. There is no obligation on the Agency Head to advise the whistleblower of the actual outcome of the misconduct action. In addition, there is no capacity for the whistleblower to re-open consideration of the misconduct action (short of a further whistleblowers' reports related to the actions of those undertaking the investigation of the alleged breach of the Code of Conduct).

11. It would be appropriate to draw the attention of your staff to the contents of this circular.

Further information

12. If you have any questions about the Circular, please contact the PSMPC Helpline on telephone (02) 6202 3859 or email employmentadvice@apsc.gov.au.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

October 2001