This circular provides agencies with advice on aspects of the Australian Public Service (APS) whistleblower framework established under section 16 of the Public Service Act 1999 and Division 2.2 of the Public Service Regulations 1999. In particular, it advises agencies about:

• recognising a whistleblower report,
• procedural fairness obligations in relation to whistleblower reports,
• dealing with requests for anonymity from a whistleblower, and
• appropriate reference to procedural fairness in agency procedures.

Legislative framework

2. Under section 16 of the Public Service Act 1999 (the Act), a person making a whistleblower report is protected from victimisation or discrimination for having made the report.

3. Regulation 2.4 of the Public Service Regulations 1999 (the Regulations) requires agency heads to establish procedures for dealing with whistleblower reports, and states that these procedures must ‘have due regard to procedural fairness’.

4. Public Service Regulations 2.5–2.7 set out the roles of the Public Service Commissioner (the Commissioner) and the Merit Protection Commissioner (the MPC) in the context of whistleblower reports.

What is a whistleblower report under the APS scheme?

5. A whistleblower report is a report of a suspected breach of the Code of Conduct made by an APS employee to an authorised person.

6. Not every report of a suspected breach of the Code of Conduct is necessarily a whistleblower report. For example, a report to a supervisor about a colleague’s behaviour may in effect be a report of a suspected Code breach, but would not generally be dealt with under the whistleblowing framework.

7. However, an APS employee may choose to make a whistleblower report, and, if they do, it must be dealt with under the whistleblowing regime. In particular:

• the agency must investigate the report, unless it is considered frivolous or vexatious,
• agency procedures for investigating whistleblowing complaints must be followed, and
• the whistleblower must not be victimised or discriminated against for having made the report.

8. For a report of suspected misconduct to be treated as a whistleblower report it must be made by an APS employee to a person who is authorised by the agency to receive whistleblower reports. The employee needs to make it clear to that person that they believe an employee¹ of the agency has acted inappropriately and that they would like the agency to take misconduct action against that person. An agency must treat the employee’s complaint as a whistleblower report even if the employee does not refer to s.16 of the Act, or say they are making a whistleblower report. If in doubt, agencies should seek clarification from the employee making the complaint.

9. An investigation that takes place as a result of a whistleblower report does not establish whether there has been a breach of the Code of Conduct. Instead, the purpose of the investigation is to determine whether there is sufficient substance to the report to justify starting an investigation under an agency’s procedures for investigating alleged breaches of the Code of Conduct. (More information is available in Circular 2001/4: Whistleblowers’ reports.)

What is procedural fairness?

10. The rules of procedural fairness require that:

• the person appointed to make the decision must be impartial and free of actual or apparent bias (for example, it is likely to be inappropriate for a decision-maker to be someone who has previously inquired into a closely related matter), and
• a person whose interests are directly affected by the decision is entitled to know the case against them and must be given a reasonable opportunity to present their side of the story and respond to any adverse information relevant to their case, and
• the decision-maker must make their decision only after having considered the evidence.

Who is entitled to procedural fairness?

11. Generally speaking, procedural fairness:

• must be provided to the person who is the subject of an investigation that takes place as a result of a whistleblower report, and
• does not always need to be provided to the whistleblower, but may in certain circumstances.

a. The person under investigation

12. A person who is under investigation as a result of a whistleblowing report is entitled to procedural fairness.

13. This means that they are entitled to be heard on the question of whether misconduct action should be taken against them under agency misconduct procedures.² The whistleblowing investigation cannot be finalised until the person has had this opportunity. This is because the person under investigation has a direct interest in the outcome—their reputation, employment, or financial position may be compromised as a result of an adverse finding.

What do agencies need to do?

14. Meeting the requirements of procedural fairness in relation to the person being investigated will usually amount to:

• providing the person with the substance of the material that the decision-maker is considering, and
• providing a reasonable opportunity for the person to be heard on whether any reports about their behaviour are true or false and whether misconduct action should be taken concerning those reports,

before final findings or recommendations are made.

15. There is no obligation to inform the person immediately that a whistleblowing investigation has commenced, and an agency may choose not to inform them during the course of the investigation, subject to anything to the contrary in the agency’s procedures. This is acceptable as long as the investigation is not concluded, or a decision made, before the person under investigation is given a reasonable opportunity to put their side of the case.

b. The whistleblower

16. In most circumstances, the whistleblower is not entitled to procedural fairness in the course of an investigation, unless the whistleblower themselves might be the subject of adverse findings that may harm their interests materially and directly.

17. There is no general obligation for agencies to provide whistleblowers with the opportunity to comment on whether Code of Conduct action should be taken against the person under investigation. This is because the whistleblower generally does not have a direct interest in whether or not Code of Conduct action is taken as a result of their complaint.³

18. The whistleblower has several opportunities to have their say, namely:

• in making the report,
• if interviewed, as a witness, and
• where relevant, in referring the complaint to the Commissioner or MPC (who, like an Agency Head, must investigate it unless they consider it to be frivolous or vexatious).

When are whistleblowers entitled to procedural fairness?

19. There may be limited circumstances where a whistleblower is entitled to procedural fairness—namely, when their interests are materially and directly affected by the investigation. This can arise when adverse findings or recommendations may be made about the whistleblower that could harm their reputation or some other interest. For example, if an agency is considering whether a whistleblower has made a report in bad faith, or the alleged wrongdoer implicates the whistleblower in the wrongdoing, the agency is required to provide the whistleblower with procedural fairness as an adverse finding could affect the whistleblower directly.

20. Generally, a whistleblower’s desire to have their complaint upheld is not enough to entitle them to procedural fairness, though an Agency Head may choose to include such an entitlement in their agency’s whistleblowing procedures.

21. Where an agency is considering a finding or recommendation that may be adverse to the whistleblower, the whistleblower should be given an opportunity to be heard on the specific question of whether any adverse findings or recommendations should be made about them.

Can whistleblowers insist on anonymity?

22. A person making a whistleblowing complaint can ask to remain anonymous, but it will not always be possible for the agency to guarantee anonymity.

23. It is not possible for whistleblowers to provide no identifying information at all, because the whistleblowing scheme applies only to APS employees. Anyone who makes a complaint under the whistleblowing framework will need to provide enough information to assure the person receiving the report that they are an APS employee.

24. The person who receives the report can undertake to protect the whistleblower’s identity as far as is reasonably possible, but complete and ongoing anonymity cannot be guaranteed. There may, for example, be cases where procedural fairness would require the whistleblower’s identity to be disclosed to the person under investigation. For instance, if a whistleblower has alleged that another employee has harassed them, the person investigated as a result of the complaint may be entitled to know the identity of the person they are alleged to have harassed, in order to be given a fair opportunity to put their side of the case.

25. Whistleblowers also need to provide enough information about themselves to enable the agency to advise them of the outcome of the investigation, so that the whistleblower can refer the complaint to the Commissioner or MPC if they are dissatisfied.

26. An individual may, of course, make a completely anonymous report of suspected misconduct (that is, make a report without identifying themselves to the agency as an APS employee). Such complaints should not be characterised as whistleblower reports, and whether they are investigated or not is a matter for each agency head (or their delegate) to decide.

What should agency procedures include?

27. To ensure compliance with the requirements of the Regulations, agencies may care to include in their procedures on whistleblowing an acknowledgement that procedural fairness will usually be owed to the person who is under investigation, and a reference to the requirement to give the person under investigation the opportunity to be heard on the question of whether misconduct action should be taken against them. It is recommended that the procedures recognise that this opportunity should be given before the investigation is finalised.

28. It is recommended, too, that agency procedures recognise that in some cases it will be necessary to provide procedural fairness to whistleblowers where their interests are directly affected—such as when there is the possibility of an adverse finding or recommendation being made against the whistleblower, or where the whistleblower’s credibility may be called into question.

29. In general, the risk of harm to a person’s direct interests carries with it that person’s right to be heard, and agency procedures should reflect this principle.

Handling of reports by the Commissioner or the MPC

30. Subregulation 2.4(2)(g) enables employees who have made a whistleblower report in their agency, and are not satisfied with the outcome of the investigation, to refer the report to the Commissioner or the MPC, who will investigate the report unless they consider it to be frivolous or vexatious. When such reports come to the Commissioner or the MPC, procedural fairness is given to the person who is investigated as a result of the complaint. This person is given the opportunity to respond to the allegations made about them and put their side of the case. Procedural fairness is not routinely given to whistleblowers unless the whistleblower’s interests are directly affected by the investigation.

Further information

31. The legislative framework for the APS whistleblowing scheme is set out at Attachment A.

32. Further information can be obtained from the Ethics Advisory Service (EAS) in the Australian Public Service Commission on (02) 6202 3737 or by email at ethics@apsc.gov.au.

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission

October 2011

Attachment A

The APS whistleblowing framework

Section 16 of the Public Service Act 1999 (the Act) states:

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:

• the Commissioner or a person authorised for the purposes of this section by the Commissioner; or
• the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner.
• an Agency Head or a person authorised for the purposes of this section by an Agency Head.

Public Service Regulation 2.4 states:

1. An Agency Head must establish procedures for dealing with a report made by an APS employee under section 16 of the Act.
2. The procedures must:
   • have due regard to procedural fairness and comply with the Privacy Act 1988; and
   • provide that an APS employee in the Agency may report breaches (or alleged breaches) of the Code of Conduct to the Agency Head, or a person authorised by the Agency Head; and
   • provide that if the Commissioner or the Merit Protection Commissioner agrees that a report relates to an issue that would be inappropriate to report to the Agency Head, the APS employee may make the report to:
   • the Commissioner, or a person authorised by the Commissioner; or
   • the Merit Protection Commissioner, or a person authorised by the Merit Protection Commissioner; and
   • ensure that if a report is made to the Agency Head, the Agency Head will, unless he or she considers the report to be frivolous or vexatious:
   • investigate it; or
   • authorise another person to investigate it; and
   • ensure that if a report is made to a person authorised by the Agency Head, the person will investigate the report, unless the person considers it to be frivolous or vexatious; and
   • provide information about the protection available under section 16 of the Act to persons making reports; and
   • enable an APS employee who has made a report, and who is not satisfied with the outcome of the investigation of the report, to refer the report to:
   • the Commissioner, or a person authorised by the Commissioner; or
   • the Merit Protection Commissioner, or a person authorised by the Merit Protection Commissioner; and
   • ensure that the findings of an investigation are dealt with as soon as practicable.

1. Or any other person who is bound by the Code of Conduct.

2. That is, an agency’s procedures, established under s.15(3) of the Act, for determining whether an employee has breached the Code of Conduct.

3. Good practice on managing the expectations of complainants who could be whistleblowers is contained in the Merit Protection Commissioner's Reviews of actions and complaints handling—A guide for HR practitioners.