Public Service Act 1999 Advice No. 19: Public interest whistleblowing

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Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.

2 The purpose of this advice is to outline changes under the new Act which may affect the reporting of breaches of the APS Code of Conduct (Public Interest Whistleblowing).

Background

3 Old Public Service Regulation 9 provided for protection against victimisation and discrimination for APS staff who report breaches (or alleged breaches) of the APS Code of Conduct.

4 Old Regulation 10 required Agency Heads to establish procedures for dealing with reports referred to in regulation 9 and regulation 11 set minimum requirements for these procedures. Regulation 11 also provided an avenue for potential whistleblowers and those who are not satisfied with the outcome of an investigation to refer the matter to the Public Service Commissioner.

Changes under the new legislation

5 Section 16 of the new Act continues the protection of APS employees who report breaches (or alleged breaches) of the Code of Conduct. It is expected that the new Public Service Regulations will continue the requirement for Agency Heads to establish procedures for dealing with reports and will set similar minimum requirements for these procedures as applied previously.

6 The Public Service Commissioner and the Merit Protection Commissioner have indicated that unless there are special circumstances, eg. personal involvement of an Agency Head, they would expect that the concerns would have been raised first with the Agency Head.

7 The Public Service Commissioner and the Merit Protection Commissioner will be putting in place coordinated arrangements for dealing with matters reported to either Commissioner.

8 In addition, the new Act (section 16(b)) extends protection to those APS employees who report breaches (or alleged breaches) of the Code of Conduct to the Merit Protection Commissioner or a person authorised by the Merit Protection Commissioner. Previously, protection applied only to those reporting breaches to the Agency Head, the Public Service Commissioner or a person authorised by them.

9 It is expected that the Commissioner's Direction issued in relation to the APS Value in section 10(1)(d), the APS has the highest ethical standards, will reinforce the requirement for Agency Heads to ensure that procedures are in place for dealing with whistleblowing disclosures.

10 It is also expected that the Direction will require Agency Heads to put in place measures to ensure that APS employees are aware of the procedures for dealing with whistleblowing disclosures, and that they are encouraged to make such disclosures in appropriate circumstances.

Implications for agencies

11 Agencies will need to amend their procedures to cover those employees who make a whistleblowing report to the Merit Protection Commissioner (or a person authorised for the purposes of the section by the Merit Protection Commissioner). In addition, Agency Heads will need to ensure that APS employees are informed about and understand the procedures and are encouraged to report breaches of the Code of Conduct using the procedures.

Further advice

12 This advice should be read in conjunction with the related advices:

The APS Values and the Code of Conduct; and
Breaches of the Code of Conduct.

13 PSMPC contact is our hotline on (02) 6202 3859.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

19 November 1999