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6: Whistleblowing

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Section 16 of the Public Service Act 1999 prohibits the victimisation of, or discrimination against, an APS employee because the employee has reported a breach or an alleged breach of the Code of Conduct to a person authorised to receive the report (that is, an agency head, the Public Service Commissioner or the Merit Protection Commissioner, or persons they authorise).

Regulation 2.4 of the Public Service Regulations 1999 (Public Service Regulations) requires agency heads to establish procedures for dealing with reports of breaches or alleged breaches of the Code of Conduct. Clause 2.5(1)(d) of the Public Service Commissioner's Directions 1999 provides that an agency head must put in place measures directed at ensuring that APS employees are aware of the procedures, and are encouraged to make reports in appropriate circumstances.

If a report is made to an agency head in accordance with the procedures he or she must, unless he or she considers the report to be frivolous or vexatious (regulation 2.4(2)(d) and (e)), inquire into it and determine whether or not there is sufficient evidence to justify an investigation under the procedures for dealing with breaches of the Code of Conduct, established under section 15(3) of the Public Service Act. The agency head may also authorise another person to inquire into the report (regulation 2.4(2)(d)(ii)).

Once it is decided that an investigation under misconduct procedures is warranted, 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 Public Service Commissioner or Merit Protection Commissioner). If the decision is that an investigation into a suspected breach of the Code of Conduct is warranted, the agency head may appoint a person to conduct the investigation in accordance with the agency’s misconduct procedures.

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