Commission Advice 2013/08: Legislative changes affecting whistleblowing in the APS

Last updated: 07 Feb 2014

This page is: archived

The Australian Public Service Commission has developed a series of Advices to assist APS agencies to implement the changes made by the Public Service Amendment Act 2013 (the Amendment Act) to the Public Service Act 1999 (the Act) and subordinate legislation. The Advices are available on the Circulars and advices page of the Commission’s website.

This Advice informs agencies of changes to the APS whistleblowing framework in the Act and the Public Service Regulations 1999 (the Regulations) and the action that agencies will need to take to implement the changes.

The commencement date for the changes is 1 July 2013. The changes to the Act and Regulations will become Commonwealth law on that date. Agencies will need to take action to prepare for these changes before the commencement date.

Why are these changes being made?

Whistleblowing, in the APS context, is the reporting by an APS employee of an alleged breach of the Code of Conduct to a person authorised to receive such a report. Section 16 of the Act explicitly prohibits victimisation of, or discrimination against, an employee who has made a whistleblower report.

The changes to the APS whistleblowing framework aim to:

  1. clarify the operation of the APS whistleblowing scheme by including in the Act a specific regulation-making power to prescribe how the scheme will operate
  2. provide for some matters to be excluded from inquiry as whistleblower reports, which will help to ensure that any complaint made by an APS employee is handled under the framework that is best able to provide an appropriate outcome
  3. make a number of operational improvements to the scheme, as outlined in this advice.

What changes are being made?

Details of the amendments to the Act and Regulations are provided in the Appendix to this Advice.

Changes in summary

The main changes made by the Amendment Act to section 16 of the Act are as follows:

  • Agency heads are required to establish procedures—which must comply with certain procedural requirements—for dealing with whistleblower reports. This requirement will now be contained in the Act, rather than the Regulations.
  • The Act, as amended, provides that the Regulations may prescribe minimum standards with which the Australian Public Service Commissioner (Commissioner) and the Merit Protection Commissioner (MPC) must comply in dealing with whistleblower reports.
  • The Act, as amended, also provides for the Regulations to prescribe circumstances in which agency heads, the Commissioner, or the MPC may decline to conduct, or may discontinue, inquiries into whistleblower reports.

Amendments have been made to Division 2.2 of the Regulations to reflect the changes in the Act.

Changes in detail

A. Agency heads’ whistleblowing procedures

New subsection 16(2) of the Act requires agency heads to establish procedures for:

  • employees to make a whistleblower report to the agency head or to a person authorised by the agency head to receive whistleblower reports, and
  • the agency head to deal with whistleblower reports.

It is not necessary for the person to whom a whistleblower report is made also to be the person who inquires into the report.

These procedures must comply with the basic procedural requirements prescribed by the Regulations. Both sets of procedures may be in a single document (i.e. one set of procedures can cover both requirements).

Regulation 2.4, as amended, sets out the basic procedural requirements with which agencies’ whistleblowing procedures must comply. These are as follows:

  1. The procedures must require that when a whistleblower report is made to an agency head, or to a person authorised by the agency head to receive whistleblower reports, the agency head or authorised person must:
    1. accept the report, and
    2. tell the whistleblower about the protections available under subsection 16(1) of the Act. (Subsection 16(1) prohibits discrimination against, or victimisation of, an APS employee on the basis of having made a whistleblower report.) This may be done orally or in writing.
  2. The procedures must require an agency head to inquire into a whistleblower report unless the agency head reasonably believes that there are grounds on which to decline or discontinue inquiry (see Part C below—Declining or discontinuing whistleblower inquiries).
  3. The procedures must require that where an agency head has inquired into a whistleblower report, they must let the whistleblower know the outcome (including whether it is proposed to decline or discontinue inquiry into the report), and must ensure that the outcome of the inquiry is dealt with as soon as practicable.
  4. The procedures must require the agency head to consider, having regard to all the circumstances, whether to give the person about whom the whistleblower report has been made an opportunity to be heard in relation to the report.

What this means for agencies

Receiving a whistleblower report

It is expected that the recipient of a whistleblower report will advise the whistleblower of the prohibition on discrimination or victimisation in subsection 16(1) of the Act, and will inform the whistleblower of the proper channels for reporting victimisation or discrimination if it occurs. It is expected that if a whistleblower raises concerns about the risk of victimisation or discrimination, these concerns will be discussed with the whistleblower, and addressed, having regard to all the circumstances. It is expected that information about the prohibition will be provided to a person making a whistleblower report at the time the report is made. If the agency head decides subsequently to decline to conduct an inquiry, or to discontinue inquiry (see part C below—Declining or discontinuing whistleblower inquiries), the prohibition on discrimination or victimisation remains in force, as it applies to discrimination or victimisation on the basis of making the report, irrespective of any further action.

Under the revised framework, an APS employee may make a whistleblower report to any agency head (or authorised person). While it is expected that most whistleblower reports will be made to the whistleblower’s own agency head, in some circumstances—for example, where an APS employee witnesses an employee of another agency engaging in suspected misconduct—it may be more appropriate for a whistleblower to make their report to another agency head. Agencies are advised to allow for this eventuality in their whistleblowing procedures.

It is no longer the case that a person who is authorised to receive a whistleblower report is also required to investigate it. Whistleblower reports must be inquired into by the relevant agency head, or their delegate.

Providing information to a whistleblower

The scope of the information that is to be given to a whistleblower about the outcome of their report will be a matter of judgement for the agency head, having regard to all the circumstances (including the requirements of the Privacy Act 1988). At a minimum, it would generally be expected that the whistleblower would be given enough information to be able to make an informed decision about any further steps they may wish to take. In particular:

  • as under the existing framework, a whistleblower may make a report to the Commissioner or MPC if they are not satisfied with the outcome of their report at the agency level. A whistleblower therefore needs to be given enough information by the agency to be able to make an informed choice as to whether to refer their report to one of the Commissioners, and
  • an agency head may decline or discontinue an inquiry into a whistleblower report if (among other things) they reasonably believe that the matter would be dealt with more appropriately by different means. Such cases may include, for example, matters that are better dealt with as reviews of action under section 33 of the Act. In these circumstances, it would be appropriate for the agency head to inform the whistleblower of their view so that the whistleblower could pursue the matter under that framework if they wished.

In deciding whether to give the whistleblower any additional detail about the outcome of their report—including the reasons for any decision—an agency head would need to have regard to the circumstances of each case, taking into account, for example, the public interest in providing that detail, as well as the reasonable protection of employees’ privacy (see also Advice 14—Use and disclosure of employee information).

Providing the right to be heard

The existing whistleblowing framework requires agency procedures to ‘have due regard to procedural fairness’. Under the amended framework, it is expected that the person about whom a whistleblower report has been made will have the opportunity to make a statement (orally and/or in writing) about their views of the matter, before any adverse findings or any recommendations are made. It is expected that this opportunity would be withheld only in exceptional circumstances. In accordance with the general principles of procedural fairness in administrative law, the opportunity to be heard must be provided to a person whose direct interests are likely to be affected adversely by the findings of an administrative inquiry.

In addition to providing the opportunity to be heard to the person alleged to have breached the Code of Conduct, it is expected that an agency head would consider whether to provide that opportunity to any other person whose interests may be adversely affected by the outcome of an inquiry. For example, if in the course of conducting a whistleblowing inquiry it becomes apparent that another person may be complicit in the alleged misconduct, and the inquiry proposes to make findings that are adverse to that person, then that person would need to be given the opportunity to be heard before any findings or recommendations are made.

In most cases, it is expected that the whistleblower would not need to be given the opportunity to be heard, as their role is essentially that of informant and witness. Cases may arise, however, in which findings or recommendations may be made that have an adverse effect on the whistleblower’s direct interests—for example, if the whistleblower is believed to be complicit in the alleged misconduct, or is otherwise suspected of behaving improperly in relation to the matter under inquiry. Generally in these cases, and consistent with the principles of procedural fairness, the whistleblower would need to be given the opportunity to be heard before any decision was made concerning possible action on that matter. The whistleblower’s interest in the outcome of their report would not normally be considered a direct interest for the purposes of providing the opportunity to be heard.

There may be cases where an agency head may choose not to provide an opportunity to be heard to the person against whom allegations have been made. This may apply in cases where, for example:

  • a whistleblower report has been made that alleges misconduct by an APS employee, and
  • the report is found to be without substance and an inquiry is not pursued, and
  • advising the employee of the report made against them may seriously disrupt workplace harmony, or may affect adversely the health of that employee to a serious degree.

However, it is expected that in most cases the opportunity to be heard will be provided to the person against whom allegations have been made.

The outcome of a whistleblowing inquiry

An inquiry into a whistleblower report is intended to establish whether there is sufficient substance to the report to warrant starting a Code of Conduct inquiry under the relevant agency’s procedures, established in accordance with subsection 15(3) of the Act, for determining whether an APS employee in the agency has breached the Code of Conduct. As such, an inquiry into a whistleblower report generally would have one of three possible outcomes. The decision maker in the matter would:

  • make a decision that no Code of Conduct inquiry be started, or
  • make a decision that a Code of Conduct inquiry should be started, or
  • note that a Code of Conduct inquiry has started.

B. Commissioners’ inquiries into whistleblower reports

Regulations 2.4 and 2.5, as amended, set out the basic procedural requirements with which the Commissioners must comply in dealing with whistleblower reports. These are as follows:

  1. When a whistleblower report is made to the Commissioner or the MPC (or to a person authorised by one of the Commissioners to receive whistleblower reports), the relevant Commissioner or authorised person must accept the report if they consider it would be inappropriate for the whistleblower to make their report to an agency head, or if the whistleblower has already made their report to an agency head and is not satisfied with the outcome (including the agency head’s decision to decline or discontinue inquiry into the report).
  2. The Commissioner or MPC must inquire into a whistleblower report unless they reasonably believe there are grounds on which to decline or discontinue inquiry (see part C below—Declining or discontinuing whistleblower inquiries).
  3. Where the Commissioner or MPC has inquired into a whistleblower report they must let the whistleblower know the outcome (including whether they propose to decline or discontinue inquiry into the report), and must inform the relevant agency head of the outcome. The Commissioners will have regard to privacy considerations in deciding the level of detail that will be provided about the outcome of an inquiry.
  4. The Commissioner or MPC must consider, having regard to all the circumstances, whether to give the person about whom the whistleblower report has been made an opportunity to be heard in relation to the report.

What this means for agencies

The whistleblowing framework will continue to operate as a two-tier system, in which the majority of reports will be considered at the agency level in the first instance, and may then be made to the Commissioner or MPC if the whistleblower is dissatisfied with the outcome of their report within the agency.

As is the case under the existing whistleblowing scheme, it will not be the role of the Commissioners to review agencies’ inquiries into whistleblower reports; rather, the Commissioner or MPC will undertake a new inquiry into the matter and make a recommendation to the relevant agency head as to whether a misconduct investigation should be started under the agency’s procedures established under subsection 15(3) of the Act.

C. Declining or discontinuing whistleblower inquiries

Regulation 2.7, as amended, provides that an agency head, the Commissioner, or the MPC may decline to conduct, or may discontinue, inquiry into a whistleblower report if they reasonably believe any of the following:

  1. the report would be dealt with more appropriately by different means,
  2. the report is vexatious, frivolous, misconceived, or lacking in substance,
  3. insufficient detail has been provided, or
  4. undertaking an inquiry would not otherwise be justified in all the circumstances.

It is open to a whistleblower to make their report to the Commissioner or the MPC if they are not satisfied with an agency head’s decision to decline or discontinue inquiry into their report.

Additional discretion for Commissioners

In addition, the Commissioners may decline or discontinue inquiry into a whistleblower report if they reasonably believe any of the following:

  1. the matter has not already been considered appropriately by an agency head, or
  2. the matter is being considered, or has already been considered, by the other Commissioner.

What this means for agencies

The existing whistleblowing framework requires a decision-maker to conduct an inquiry into a whistleblower report unless they consider the report to be frivolous or vexatious. By contrast, the new provisions give decision-makers the discretion to decline to conduct, or to discontinue, an inquiry in a range of circumstances.

The APS whistleblowing scheme is not intended or well suited to address matters of personal grievance or to provide personal redress to APS employees. The range of possible outcomes of a whistleblowing inquiry is very limited, and it may not be appropriate or useful in dealing with, for example, broader workplace disagreement. Where a report is made concerning matters of this kind, it may be more appropriate to deal with it under, for example, the review of action scheme set out in section 33 of the Act and Part 5 of the Regulations.

Paragraph 2.7(2)(a) of the Regulations, as amended, allows decision-makers to decline or discontinue inquiry into reports they reasonably believe would be addressed by other means in a way that is more suitable, or which may provide a more appropriate outcome. However, in exercising this discretion, decision-makers need to be mindful of any time limits that apply to other frameworks. The review of action scheme, for example, requires that applications for review be submitted within a certain timeframe following the action at issue.

The whistleblowing framework, as amended, continues to allow matters considered ‘frivolous or vexatious’ to be excluded from inquiry. However, in order to provide greater clarity to agencies and whistleblowers, the revised framework allows decision-makers to exercise their discretion to decline or discontinue an inquiry if they reasonably believe that the report is frivolous, vexatious, misconceived, or lacking in substance. This discretion may be exercised by a decision-maker if, for example, no practical outcome could be achieved by conducting an inquiry into the matter—perhaps if it became apparent that the misconduct alleged by the whistleblower would not, if proved, amount to a breach of the Code of Conduct.

Decision-makers may also decline or discontinue inquiry into reports that do not include sufficient detail relevant to the allegations(s), such that the decision-maker is unable, on the basis of the information provided, to make a reasonable decision or recommendation as to whether a misconduct investigation should be started. Before exercising this discretion, it is recommended that the decision-maker ask the whistleblower to supply further relevant information, within a reasonable timeframe, to substantiate the allegations.

There may be other circumstances in which an agency head or Commissioner may come to the view that an inquiry into a whistleblower report would not be justified, and the revised framework includes a broad discretion to decline or discontinue inquiry into matters where ‘inquiry is not otherwise justified in all the circumstances’. Such cases may include, for example, a matter that is also the subject of an application by the employee before a Court or Tribunal, or an allegation which may be true but would not be of sufficient gravity to warrant inquiry under procedures established by an agency head under s.15(3) of the Act. In coming to such a view, a decision-maker would need to have regard to the circumstances of the individual case, and document the reasons for their decision.

What do agencies need to do?

Agencies must do the following before the legislation commences on 1 July 2013:

1. Revise their policies and procedures to reflect the changes to the Act

Agencies must revise their policies, procedures, and publications as appropriate to ensure they reflect the changes to the whistleblowing framework.

2. Communicate the changes to their employees

A whistleblowing scheme is an important part of the integrity framework of an agency, and of the APS as a whole. Employees need to know about the options available to them for reporting suspected misconduct—including under the APS whistleblowing scheme. It is important that agencies communicate the changes to the scheme to their employees.

What transition arrangements need to be put in place?

Part 1 and Part 7 of Schedule 4 of the Amendment Act outline the transitional arrangements for dealing with whistleblower reports. Agencies must consider the following when applying their whistleblowing procedures after 1 July 2013:

Alleged breaches of the Code of Conduct that occur before and after commencement

For the purposes of Parts 4, 6 and 7 of Schedule 4 of the Amendment Act, if a breach of the Code is alleged to have occurred between two dates, one before and one after 1 July 2013, the breach is alleged to have occurred before 1 July 2013.

Whistleblowing inquiries in progress

If, before 1 July 2013, an agency head or Commissioner had begun, but not completed, a whistleblowing inquiry, the old Act, Regulations, and procedures continue to apply after 1 July 2013 in relation to the inquiry.

Whistleblower report made, but inquiry not yet commenced

If, before 1 July 2013, a whistleblower report has been made, but an inquiry has not yet started, then the new whistleblowing legislation and procedures apply, but any reference in these to the Code of Conduct must be taken to be a reference to the pre-commencement Code of Conduct.

Whistleblower report made after commencement time in relation to breach before commencement time

If, after 1 July 2013, a whistleblower report is made about an alleged breach of the Code that occurred before commencement time, then the new whistleblowing legislation and procedures will apply, but any reference in these to the Code of Conduct must be taken to be a reference to the pre-commencement Code of Conduct.

Further information

The Amendment Act, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner’s Directions 2013 are available on the Comlaw website.

Enquiries from agencies’ corporate services staff can be made by email at ethics@apsc.gov.au or by telephone on 02 6202 3737.

APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.

This Advice should be read in conjunction with

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission

April 2013

Appendix

Section 16 of the Public Service Act 1999, as amended by the Public Service Amendment Act 2013

16 Whistleblower reports

Protection for whistleblowers
  1. A person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct to:
    1. the Commissioner or a person authorised for the purposes of this section by the Commissioner; or
    2. the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner; or
    3. an Agency Head or a person authorised for the purposes of this section by an Agency Head.
Whistleblower reports made to Agency Heads etc.
  1. An Agency Head must establish procedures for:
    1. an APS employee to make a report (a whistleblower report) of a breach (or an alleged breach) of the Code of Conduct to the Agency Head or to a person authorised for the purposes of this section by the Agency Head; and
    2. an Agency Head to deal with a whistleblower report made to the Agency Head or to a person authorised for the purposes of this section by the Agency Head.

      Note: The procedures may be in a single document.

  2. Procedures established under subsection (2) must comply with basic procedural requirements (if any) prescribed by the regulations.
  3. Procedures established under subsection (2) are not legislative instruments.
Whistleblower reports made to the Commissioner or Merit Protection Commissioner etc.
  1. The regulations may prescribe either or both of the following:
    1. procedures for an APS employee to make a report (also a whistleblower report) of a breach (or an alleged breach) of the Code of Conduct to the Commissioner or the Merit Protection Commissioner or to a person authorised for the purposes of this section by the Commissioner or the Merit Protection Commissioner;
    2. basic procedural requirements that the Commissioner and the Merit Protection Commissioner must comply with in dealing with a whistleblower report.
Circumstances for declining to inquire, or discontinuing an inquiry, into a whistleblower report
  1. The regulations may prescribe circumstances in which the Commissioner, the Merit Protection Commissioner or an Agency Head may:
    1. decline to conduct an inquiry into a whistleblower report; or
    2. discontinue an inquiry into a whistleblower report.

Division 2.2 of the Public Service Regulations 1999, as amended by the Public Service Amendment Regulation 2013

Division 2.2—Whistleblower reports

2.4 Basic requirements for procedures for Agency Heads dealing with whistleblower reports
  1. For subsection 16(3) of the Act, this regulation prescribes basic requirements for procedures for dealing with a whistleblower report made to an Agency Head or a person authorised for the purposes of section 16 of the Act by the Agency Head.
  2. The procedures must require the Agency Head or authorised person to:
    1. accept the whistleblower report; and
    2. give information to the whistleblower about the protections available under subsection 16(1) of the Act.
  3. The procedures must require the Agency Head to commence an inquiry into the whistleblower report unless the Agency Head reasonably believes that there are circumstances in which to decline to conduct an inquiry.

    Note: For the circumstances in which an Agency Head can decline to conduct an inquiry, see subregulation 2.7(2).

  4. The procedures must require the Agency Head to:
    1. complete an inquiry into the whistleblower report unless the Agency Head reasonably believes that there are circumstances in which to discontinue the inquiry; and
    2. report the outcome of the inquiry to the whistleblower; and
    3. ensure that the outcome of the inquiry is dealt with as soon as practicable

      Note: For the circumstances in which an Agency Head can discontinue an inquiry, see subregulation 2.7(2).

  5. The procedures must require the Agency Head to consider, having regard to all the circumstances, whether to give the person about whom the whistleblower report has been made an opportunity to be heard in relation to the report.
  6. The procedures must require the Agency Head to advise the whistleblower if the Agency Head:
    1. decides to decline to conduct an inquiry into the whistleblower report; or
    2. commences an inquiry into the whistleblower report, and then decides that there are circumstances in which the inquiry should be discontinued.

    Note: For the circumstances in which an Agency Head can decline to conduct, or discontinue, an inquiry, see subregulation 2.7(2).

2.5 Basic requirements for Australian Public Service Commissioner dealing with whistleblower reports

  1. For paragraph 16(5)(b) of the Act, this regulation prescribes basic procedural requirements that the Australian Public Service Commissioner must comply with in dealing with a whistleblower report.
  2. The Australian Public Service Commissioner must accept the whistleblower report if:
    1. the Australian Public Service Commissioner considers that it would be inappropriate for the whistleblower to make the whistleblower report to the relevant Agency Head; or
    2. the whistleblower has made a whistleblower report to the relevant Agency Head and is not satisfied with:
      1. the Agency Head’s decision to decline to conduct an inquiry into the whistleblower report; or
      2. the Agency Head’s decision to discontinue an inquiry into the whistleblower report; or
      3. the outcome of the Agency Head’s inquiry into the whistleblower report.
  3. The Australian Public Service Commissioner must commence an inquiry into the whistleblower report unless the Australian Public Service Commissioner reasonably believes that there are circumstances in which to decline to conduct an inquiry.

    Note: For the circumstances in which the Australian Public Service Commissioner can decline to conduct an inquiry, see subregulations 2.7(2) and (3).

  4. The Australian Public Service Commissioner must:
    1. complete an inquiry into the whistleblower report unless the Australian Public Service Commissioner reasonably believes that there are circumstances in which to discontinue the inquiry; and
    2. report the outcome of the inquiry to the whistleblower and the relevant Agency Head.

    Note: For the circumstances in which the Australian Public Service Commissioner can discontinue an inquiry, see subregulations 2.7(2) and (3).

  5. The Australian Public Service Commissioner must consider, having regard to all the circumstances, whether to give the person about whom the whistleblower report has been made an opportunity to be heard in relation to the report.

2.6 Basic requirements for Merit Protection Commissioner dealing with whistleblower reports

  1. For paragraph 16(5)(b) of the Act, this regulation prescribes basic procedural requirements that the Merit Protection Commissioner must comply with in dealing with a whistleblower report.
  2. The Merit Protection Commissioner must accept the whistleblower report if:
    1. the Merit Protection Commissioner considers that it would be inappropriate for the whistleblower to make the whistleblower report to the relevant Agency Head; or
    2. the whistleblower has made a whistleblower report to the relevant Agency Head and is not satisfied with:
      1. the Agency Head’s decision to decline to conduct an inquiry into the whistleblower report; or
      2. the Agency Head’s decision to discontinue an inquiry into the whistleblower report; or
      3. the outcome of the Agency Head’s inquiry into the whistleblower report.
  3. The Merit Protection Commissioner must commence an inquiry into the whistleblower report unless the Merit Protection Commissioner reasonably believes that there are circumstances in which to decline to conduct an inquiry.

    Note: For the circumstances in which the Merit Protection Commissioner can decline to conduct an inquiry, see subregulations 2.7(2) and (4).

  4. The Merit Protection Commissioner must:
    1. complete an inquiry into the whistleblower report unless the Merit Protection Commissioner reasonably believes that there are circumstances in which to discontinue the inquiry; and
    2. report the outcome of the inquiry to the whistleblower and the relevant Agency Head.

    Note: For the circumstances in which the Merit Protection Commissioner can discontinue an inquiry, see subregulations 2.7(2) and (4).

  5. The Merit Protection Commissioner must consider, having regard to all the circumstances, whether to give the person about whom the whistleblower report has been made an opportunity to be heard in relation to the report.

2.7 Circumstances in which Agency Head, Australian Public Service Commissioner or Merit Protection Commissioner may decline to conduct, or may discontinue, an inquiry

  1. For subsection 16(6) of the Act, this regulation prescribes circumstances in which an Agency Head, the Australian Public Service Commissioner or the Merit Protection Commissioner may:
    1. decline to conduct an inquiry into a whistleblower report; or
    2. discontinue an inquiry into a whistleblower report.
  2. A circumstance is that the Agency Head, the Australian Public Service Commissioner or the Merit Protection Commissioner reasonably believes that:
    1. the whistleblower report would be dealt with more appropriately by different means; or
      Example: When other action is being undertaken under the Act or another Commonwealth law.
    2. the whistleblower report is vexatious, frivolous, misconceived or lacking in substance; or
    3. insufficient detail has been provided; or
    4. undertaking the inquiry would not otherwise be justified in all the circumstances.
  3. A circumstance for the Australian Public Service Commissioner is that the whistleblower report:
    1. has not already been considered by the relevant Agency Head; or
    2. is being, or has already been, considered by the Australian Public Service Commissioner.
  4. A circumstance for the Merit Protection Commissioner is that the whistleblower report:
    1. has not already been considered by the relevant Agency Head; or
    2. is being, or has already been, considered by the Australian Public Service Commissioner.