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Public interest whistleblowing

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

Procedures issued under the Public Service Regulations

The following procedures, issued in accordance with the Public Service Regulations, set out the procedures that will be adopted when an APS employee reports a breach (or alleged breach) of the APS Code of Conduct to the Public Service Commissioner, either in circumstances where the Public Service Commissioner agrees that the report relates to an issue that would be inappropriate to report to the Head of the agency where the breach is alleged to have occurred (regulation 11(c)), or where an employee refers the report to the Public Service Commissioner because they are not satisfied with the outcome of an investigation conducted by their agency (regulation 11(f)).

Helen Williams
Public Service Commissioner

5 November 1998

Procedures adopted by the PSMPC to deal with Whistleblowing Disclosures

made to the Public Service Commissioner by APS staff, in accordance with Public Service Regulations 11(c) and 11 (f)

While the whistleblowing scheme, introduced via recent amendments to the Public Service Regulations, is based on the expectation that most whistleblowing reports will be made and investigated within the agency concerned, one of the options open to potential whistleblowers, and to those who are not satisfied with the outcome of an investigation conducted by their own agency, is to refer the matter to the Public Service Commissioner. (See paragraphs (c) and (f) of regulation 11, which is included in attachment B).

The purpose of this notice

The purpose of this notice is to set out the procedures that will be adopted when an APS employee makes a report to the Public Service Commissioner, alleging a breach of the Code of Conduct (the Code). Where the person making the report is not directly affected by the conduct concerned, the report would generally be taken to be 'whistleblowing', whereas if the person is the subject of the conduct or is directly affected by the conduct, the report may more appropriately be dealt with as a grievance. A report from an APS employee, expressing dissent with his or her agency over a policy issue, would not be treated as a whistleblowing disclosure.

Public Interest Whistleblowing

Whistleblowing refers to the reporting, in the public interest, of information which alleges a breach of the APS Code of Conduct (set out at attachment A) by APS staff.

Legislative protection for whistleblowers within the APS has been introduced via amendments to the Public Service Regulations. Regulation 9 provides protection against victimisation and discrimination for staff who report breaches or alleged breaches of the Code.The regulations also set minimum requirements for the procedures that an Agency Head must establish for the reporting and investigation of whistleblowing disclosures (regulation 11).

When may a report be made directly to the Public Service Commissioner?

It should be noted that a report made by an APS employee directly to the Public Service Commissioner would only be considered by the Commissioner, or a person she or he authorises, where the Commissioner agrees that the matter is of such sensitivity that it would be inappropriate to report it within the employee's agency, e.g. if the person making the report believed that his or her Agency Head was directly involved in the alleged breach of the Code (paragraph (c) of regulation 11). Otherwise a report should be made first to the Agency concerned and only to the Public Service Commissioner where the employee is not satisfied with the outcome of the Agency's investigation (paragraph (f) of regulation 11).

Procedures

When a whistleblowing report has been received by, or referred to, the Public Service Commissioner1 in circumstances referred to in paragraph (c) or (f) of Regulation 11, the following procedures will be adopted. It should be noted that in cases where an employee wishes to report on conduct which has occurred in an agency other than their own employing agency, the report should, in most circumstances, be made to the Head of the agency concerned.

Protections available

It should be emphasised that the protections provided in regulation 9 are available only to persons who make a whistleblowing disclosure to their Agency Head or a person the Agency Head has authorised to receive reports, or to the Public Service Commissioner or a person the Commissioner has authorised to receive reports.

Establishing the nature of the allegations

The initial procedures for establishing the nature of the allegations are as follows:

• All allegations of breaches of the Code of Conduct received by staff of the PSMPC are to be referred to the Public Service Commissioner.
• The Public Service Commissioner initially considers these allegations to determine:
  • whether the conduct referred to is alleged to have occurred on or after 15 March 1998 (the whistleblowing procedures can only concern conduct that occurred after the amended regulations took effect);
  • whether the conduct referred to fits the definition of a breach of the Code of Conduct;
  • whether the matter should be dealt with under the whistleblowing provisions or is in the nature of a grievance and should be dealt with under the grievance provisions in the Public Service Regulations;
  • whether the report is of some different nature and should be referred elsewhere, such as to:
    • the Australian Federal Police;
    • the Ombudsman;
    • the Auditor-General; or
    • the Inspector-General of Intelligence and Security;
  • if it fits the definition of 'whistleblowing', whether, on the basis of the material presented, the report appears to be vexatious or frivolous, and therefore should not be investigated;
  • whether, because it would be inappropriate for the matter to be reported to the Agency Head, it is an issue that should be dealt with by the Public Service Commissioner; and
  • whether the Commissioner should agree to inquire into or investigate the matter under regulation 72A which enables the Commissioner to inquire into any matter. (The full text of regulation 72A is in attachment B).
• The Public Service Commissioner, having made a determination in relation to the above issues, will advise the person making the report as to whether the report is thought to be in the nature of whistleblowing and, if so, whether the Commissioner will consider it. If the matter is one that is thought to come, more properly, under the responsibility of some other agency or is one for consideration by the Agency Head of the person making the report, or by the Head of the agency where the conduct occurred, the Commissioner will advise the person making the report accordingly. If the person agrees, the Commissioner will refer the allegation to the head of the other agency concerned, except in the case of an allegation involving criminal activity. In that case the matter may be referred to the AFP, without first obtaining the agreement of the person making the report. Except in cases involving criminal activity, if the person making the report does not agree, in the circumstances described above, that the report should be referred for consideration to some other agency or to the Agency Head of the person making the report, the Commissioner will take no further action under these procedures.
• If a report is considered to be frivolous or vexatious, the Commissioner will inform the person making the initial report that no further action will be taken under these procedures. Provided the report has not previously been made to the Agency Head, it is open to the person making the allegation to take it to his or her Agency Head.

Investigating the allegations

Where the allegation is to be investigated by the Public Service Commissioner, the Commissioner may authorise another person, usually from within, but where needed, from outside the Commission, to undertake the investigation.

The following principles will apply where the person authorised to undertake the investigation is investigating the alleged breach of the Code of Conduct.

Principles

• The matter will be discussed with the person alleging the breach of the Code of Conduct to determine the nature of the allegations. The scope of the investigation and the way in which it will be conducted will also be clarified with the person making the allegation.
• The investigation will comply with all relevant legislation, eg, the Privacy Act.
• Where appropriate, the Commissioner may delegate to an impartial investigating officer some or all of her or his powers under section 19 of the Public Service Act (which provides a range of powers to the Commissioner, including the power to compel officers to provide documents or to take evidence on oath, and the power to enter any Department for the purpose of carrying out the Commissioner's functions).
• The investigating officer should make it clear to people providing information voluntarily that they are not obliged to answer questions or supply information if they do not wish to do so. Where they are directed to answer questions or the investigation is being carried out under section 19 of the Public Service Act then they should be advised that they are not compelled to answer any question which could incriminate2 them
• . The investigating officer will decide whether there is substance to the allegation and recommend action that the Public Service Commissioner may take, for example, whether a discipline process should be commenced. In preparing a report, the investigating officer will have regard to the principles of procedural fairness, which include an unbiased decision maker and allowing the person(s) against whom the allegations have been made an opportunity to put their case and to know the case against them. This must occur within a reasonable time to allow the person's response to be taken into account before a conclusion is reached.

Outcome of investigation

Upon receipt of the report, the Public Service Commissioner will consider the recommendations in the report and advise the person making the allegation and the person(s) against whom the allegation has been made of the Commissioner's decision on the matter, including whether to recommend to the Agency Head concerned that an appropriate discipline process be commenced. If the matter involves allegations against an Agency Head, the outcome of the investigation will be referred to the appropriate Minister.

Notes

The following points should be borne in mind:

• Employees should be reminded that the regulations do not provide specific protection from liability for defamation in respect of disclosures made under whistleblowing provisions.3 Common law protection applies, as modified by State or Territory legislation where applicable. At common law, the defence of qualified privilege4 would be available to a whistleblower who was sued for defamation by a person about whom a disclosure alleging misconduct is made, provided that the statement alleged to be defamatory was made in good faith and to a person authorised to receive those statements.
• There are also statutory protections in s.89A (see attachment B) of the Public Service Act in relation to reports made in good faith in connection with the conduct of APS staff. The details of disclosures will be kept confidential as far as possible and will be released only to those who have a need to know, including to meet the requirements of procedural fairness.
• Applications for access to any material received by the Commissioner at the start of, or during the investigation, will be handled under the provisions of the Freedom of Information (FOI) Act. Certain documents are exempted from the access provisions of the FOI Act, and the Act also provides protections from certain legal actions5, for those who grant access, as well as for authors and suppliers of documents. (Sections 91 and 92 of the FOI Act refer; see attachment B).

State of the Service Report

The State of the Service Report will include commentary on usage and on any major issues and trends emerging through public interest whistleblowing.

If you would like more information on these arrangements, you may contact Mary Reid, Diversity, Values and Conduct Team, on (02) 6202 3500.

Attachment A - Australian Public Service Code of Conduct

The requirements of the Code of Conduct, as set out in Public Service Regulation 7, are:

• An APS employee must behave honestly and with integrity in the course of APS employment.
• An APS employee must act with care and diligence in the course of APS employment.
• An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
• An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws.
• An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.
• An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff.
• An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
• An APS employee must use Commonwealth resources in a proper manner.
• An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment.
• An APS employee must not make improper use of:
  • inside information; or
  • the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
• An APS employee must at all times behave in a way that upholds the APS values and the integrity and good reputation of the APS.
• An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
• An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

Attachment B - Extracts from relevant legislation

The following extracts of legislation have been referred to in the main text.

Public Service Regulations

Protection for whistleblowers

9. 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 Agency Head or a person authorised by the Agency Head; or
2. the [Public Service] Commissioner or a person authorised by the Commissioner.

Procedures for dealing with reports

10. An Agency Head must establish procedures for dealing with reports referred to in regulation 9.

[NOTE: For disciplinary action that may be taken for breaches of the Code of Conduct, see section 61 of the Act.]

Minimum requirements for procedures

11. The procedures must:

1. have due regard to procedural fairness and comply with the Privacy Act 1988; and
2. provide that Agency employees may report breaches (or alleged breaches) of the Code of Conduct to the Agency Head, or a person authorised by the Agency Head; and
3. provide that if the Commissioner agrees that a report relates to an issue that would be inappropriate to report to the Agency Head, the employee may make the report to the Commissioner, or a person authorised by the Commissioner; and
4. ensure that all reports made by Agency employees of breaches (or alleged breaches) of the Code of Conduct are investigated, unless the Agency Head or Commissioner considers that a particular report is frivolous or vexatious; and
5. provide information about the protection available under regulation 9 to persons making reports; and
6. enable agency employees who are not satisfied with the outcome of an investigation by the Agency to refer the issue to the Commissioner, or a person authorised by the Commissioner; and
7. ensure that the findings of an investigation are dealt with as soon as practicable.

Public Service Act 1922, s. 89A

Protection of persons in respect of work reports on officers or employees

(1) An action or proceeding does not lie against a person for or in respect of any oral or written report made in good faith by the person on or in connection with:

1. work performed, or proposed to be performed, by an officer or employee; or
2. conduct of an officer or employee.

(2) A report shall be deemed to have been made in good faith if the person by whom the report was made was not actuated by ill will to the officer or employee affected or by any other improper motive.

(3) Subsection (1) does not apply in relation to a report unless:

1. the person who made the report believed on reasonable grounds that it was the function or duty of the person to whom the report was made to receive the report; and
2. in the case of a report containing matter that was false or misleading in a material respect, the person who made the report did not know, and could not with reasonable diligence have ascertained, that the report contained matter that was so false or misleading.

Public Service Regulation 72A

It shall be the duty of the Board [the Commissioner] to inquire into or investigate any matter in relation to the Public Service, which, in the opinion of the Board [the Commissioner], should be inquired into or investigated.

Freedom of Information Act 1982, s. 91

Part VIII-Miscellaneous Protection against certain actions

(1) Where access has been given to a document and:

1. the access was required by this Act to be given or would, but for the operation of subsection 12(2) or of that subsection as modified by regulations made in pursuance of subsection 12(3), have been so required to be given; or
2. the access was authorised by a Minister, or by an officer having authority, in accordance with section 23 or 54, to make decisions in respect of requests, in the bona fide belief that the access was required by this Act to be given;

no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, an agency, a Minister or an officer by reason of the authorising or giving of the access, and no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of the access lies against the author of the document or any other person by reason of that author or other person having supplied the document to an agency or Minister.

(1A) Subsection (1) applies in relation to the giving of access to a document even if, in giving access, there has been a failure to comply with section 26A, 27 or 27A.

(1B) No action lies against the Commonwealth, an agency, a Minister or an officer merely because of a failure to comply with section 26A, 27 or 27A in relation to giving access to a document.

(1C) If a document has been shown to a person, organisation or proprietor for any of the following purposes: consultation with a State under subsection 26A(1);

1. enabling the person, organisation or proprietor to make a submission under subsection 27(1);
2. enabling the person or the person's legal personal representative to make a submission under subsection 27A(1); then:
3. no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, an agency, a Minister or an officer because of the showing of the document; and
4. no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the showing of the document lies against the author of the document or any other person because of that author or other person having shown the document.

(2) The giving of access to a document (including an exempt document) in consequence of a request shall not be taken to constitute an authorisation or approval:

1. for the purposes of the law relating to defamation or breach of confidence of the publication of the document or its contents by the person to whom access is given;
2. for the purposes of the law of copyrightof the doing, by the person to whom access is given, of any act comprised within the copyright in:
   1. .any literary, dramatic, musical or artistic work;
   2. any sound recording, cinematograph film, television broadcast or sound broadcast; or
   3. a published edition of a literary, dramatic, musical or artistic work;

   contained in the document.

(2A) If a document has been shown to a person, organisation or proprietor for any of the following purposes:

1. consultation with a State under subsection 26A(1);
2. enabling the person, organisation or proprietor to make a submission under subsection 27(1);
3. enabling the person or the person's legal personal representative to make a submission under subsection 27A(1);
   the showing of the document is not taken to constitute an authorisation or approval:
4. for the purposes of the law relating to defamation or breach of confidence of the publication of the document or its contents by the person, organisation or proprietor to whom the document is shown; and
5. for the purposes of the law of copyrightof the doing, by the person, organisation or proprietor to whom the document is shown, of any act comprised within the copyright in:
   any literary, dramatic, musical or artistic work; or
   1. any sound recording, cinematograph film, television broadcast or sound broadcast; or
   2. a published edition of a literary, dramatic, musical or artistic work;

   contained in the document.

(3) Expressions used in paragraph (2)(b) or (2A)(e) have the same meaning as in the Copyright Act 1968.

Freedom of Information Act 1982, s. 92

Protection in respect of offences

(1) Where access has been given to a document and:

1. the access was required by this Act to be given or would, but for the operation of subsection 12(2) or of that subsection as modified by regulations made in pursuance of subsection 12(3), have been so required to be given; or
2. the access was authorised by a Minister, or by an officer having authority, in accordance with section 23 or 54, to make decisions in respect of requests, in the bona fide belief that the access was required by this Act to be given;

neither the person authorising the access nor any person concerned in the giving of the access is guilty of a criminal offence by reason only of the authorising or giving of the access.

(2) If a document has been shown to a person, organisation or proprietor for any of the following purposes:

1. consultation with a State under subsection 26A(1); or
2. enabling the person, organisation or proprietor to make a submission under subsection 27(1); or
3. enabling the person or the person's legal personal representative to make a submission under subsection 27A(1);

neither the person showing the document nor any person concerned in showing it is guilty of a criminal offence only because of the showing of the document.

 

1 A number of Acts, eg the Taxation Administration Act 1953, and the Auditor-General's Act 1996, contain provisions relating to secrecy or confidentiality of information. A person who is subject to an Act containing such a provision may be limited in their capacity to make a disclosure outside their own Agency. It would be necessary for the person to consider whether the disclosure included information, the release of which would be in breach of the secrecy or confidentiality provisions of the relevant Act.

2 the term 'incriminate' may extend beyond an exposure to a criminal penalty to the imposition of a civil penalty, including that flowing from APS disciplinary proceedings.

3 It should be noted that the Public Service Bill 1997 does not provide these protections either.

4 Statements which attract qualified privilege include: a statement made in the performance of some public or private duty, legal or moral, provided that the statement is communicated to a person who has a reciprocal interest in receiving it; or a statement made in defence of an attack against the person making the statement. Qualified privilege is not available where: the statement is excessive for the purpose which attracts the privilege; or the communication is activated by malice. In summary, any communication which a Government officer has to make for the purpose of good government will not result in liability in defamation, provided that the communication is made in good faith for that purpose and the communication is limited to a need-to-know basis.

5 Section 91 of the FOI Act says that no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, an agency, a Minister, or an officer by reason of the authorising or giving of access to a document under the relevant provisions of the Act. Section 92 provides protection against prosecution from criminal offences to a person who gives or authorises access to documents under the relevant provisions of the Act.