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Appendix 3 - Interaction between the Australian Public Service Code of Conduct and the Public Interest Disclosure Act

1. Introduction

1. 1 On 15 January 2014 the Public Interest Disclosure Act 2013 (PID Act) came into effect, repealing the whistleblower scheme that had previously existed under the Public Service Act 1999 and introducing a new framework for the making of public interest disclosures across the Commonwealth public sector.

1.2 This appendix provides information on the connection between the PID Act and the Australian Public Service (APS) misconduct framework in relation to internal disclosures made by public officials about the conduct of APS employees. Information on the general operation of the PID scheme, including on external, emergency and legal practitioner disclosures can be found on the Commonwealth Ombudsman's website www.pid.ombudsman.gov.au or by contacting the Ombudsman at PID [at] ombudsman.gov.au.

1.3 The Commonwealth Ombudsman, and the Inspector-General of Intelligence and Security (IGIS) in respect of intelligence agencies, oversee the PID Scheme. The Commonwealth Ombudsman has issued an Agency Guide to the Public Interest Disclosure Act 201352 explaining how the PID Act works, setting out the Commonwealth Ombudsman's statutory obligations, and suggesting best practice in handling public interest disclosures.

1.4 The PID Act creates a framework for facilitating the disclosure of suspected wrongdoing in the Commonwealth public sector, for protecting disclosers from adverse consequences of making a disclosure, and for timely and effective investigation of disclosures of suspected wrongdoing.

2. Internal disclosures that may also be allegations of breaches of the APS Code of Conduct

2.1 Disclosable conduct is defined in s29 of the PID Act to cover a broad range of inappropriate conduct within the Commonwealth public sector, including conduct that is contrary to law, or could otherwise give reasonable grounds for disciplinary action. Disclosures could therefore contain material that alleges a breach of the APS Code of Conduct (the Code) by an APS employee or employees.

2.2 Internal disclosures are those made in accordance with the PID Act to an appropriate 'authorised officer' in a Commonwealth agency. A current or former public official can make an internal disclosure to an authorised officer within their agency or the last agency in which they were employed. A current public official may also make a disclosure under the PID Act to their supervisor, who is then obliged to pass it on to an authorised officer in their agency. If a public official wishes to make an internal disclosure about the conduct of an employee in a different agency, it can be made to an authorised officer in that employee's agency.53 The Commonwealth Ombudsman and the IGIS may also receive disclosures about the conduct of officials in other agencies within their respective jurisdictions.

2.3 Once an authorised officer receives a disclosure under the PID Act, they must notify the principal officer of the disclosed information. For APS agencies the 'principal officer' is the agency head. When a public interest disclosure alleges a breach of the Code, the agency head54 will need to manage the disclosure under the terms of the PID Act in the first instance.

2.4 Under that Act, unless there are grounds not to investigate, the agency head must investigate the disclosure. The agency head may:

  • conduct an investigation in accordance with that agency's s15(3) procedures and simultaneously investigate the disclosure under the terms of the PID Act, or
  • consistent with sections 47(3) and 51 of the PID Act, decide whether or not it would be appropriate to deal with the matters raised by the disclosure as a suspected breach of the Code in accordance with the agency's s15(3) procedures.

3. Investigations of allegations of breaches of the Code under the PID Act

3.1 Disclosures under the PID Act that allege a breach of the Code must be considered in accordance with the PID Act.

3.2 It is open to agencies to carry out an investigation simultaneously under their s15(3) procedures and the PID Act. Where this option is chosen, agencies will need to exercise great care to ensure that they meet all of their obligations under both the PID Act and their s15(3) procedures. A failure to do so may lead to an invalid determination by the breach decision-maker.

3.3 Alternatively, an agency may choose to conduct a PID investigation separately. At the conclusion of that investigation, which may be of relatively short duration and focus on whether there is sufficient substance to the allegation to merit investigation as a suspected breach of the Code under their agency's s15(3) procedures, the agency head is required to prepare a report as required under s51 of the PID Act.

3.4 The PID investigation report could include a recommendation, or a decision, where appropriate, as to whether or not a Code investigation is to be conducted under the agency's s15(3) procedures. A 'decision' rather than a 'recommendation' may be more likely to assure the person making the disclosure that their disclosure has been considered and dealt with appropriately. The person making that decision must be authorised to do so consistent with that agency's procedures. If the agency head decides that further inquiry in accordance with the agency's s15(3) procedures is not appropriate, then he or she needs to record the reasons for reaching this conclusion and their recommendation or decision as to what other action, if any, would be appropriate.

3.5 A copy of the report made under s51 of the PID Act must be given to the discloser. Section 51 sets out provisions relating to providing that report and the limits on material that may be included as part of the report given to the discloser.

3.6 An investigation under an agency's s15(3) procedures is a discrete and separate investigation, not a continuation of the PID investigation.

Discretion not to investigate or investigate further under the PID Act

3.7 The agency head may decide not to investigate a disclosure or, if the investigation has started, not to investigate the disclosure further, for any of the reasons listed in s48 of the PID Act. This includes where an investigation into the same, or substantially the same, disclosable conduct is already underway or has been concluded under the agency's s15(3) procedures (see ss48(1)(f) and (g) of the PID Act).

3.8 The agency head is required to notify the discloser of the decision not to investigate, or investigate further, and to provide reasons for the decision (ss48, 50(1) and 50(3) of the PID Act). These reasons could include, for example, that the matters that form the subject of the disclosure are being investigated, or have been investigated, as a suspected breach of the Code under the agency's s15(3) procedures.

4. Protection of disclosers including confidentiality

4.1 A person who makes a public interest disclosure covered by the PID Act has immunities from legal liability and protection from reprisals.55 The discloser's identity has special protection under s 20 of the PID Act. These protections will continue to apply to the discloser where an investigation under an agency's s15(3) procedures arises from a PID disclosure.

4.2 It is an offence to disclose information obtained in the course of a PID investigation, or in connection with the performance of a function under the PID Act unless the information is used for the purposes of the PID Act or taking action in response to a disclosure investigation. Such an offence could result in imprisonment and/or a fine.56 While an investigation conducted under an agency's s15(3) procedures following a decision or recommendation of a PID investigation is an action taken in response to a disclosure investigation, agencies will need to consider carefully the disclosure of information obtained in the course of the PID investigation.

4.3 Agency heads will need to ensure appropriate arrangements are in place to protect the identity of the discloser and to protect them from reprisals for making the disclosure. To assist agencies, the Commonwealth Ombudsman's Agency Guide to the Public Interest Disclosure Act 2013 includes information on supporting and protecting the discloser. Chapter 6 of that guide is particularly relevant.

4.4 It may be necessary to reveal the identity of a complainant (including a person who has made a disclosure under the PID Act) or a witness in conducting a misconduct investigation for procedural fairness reasons. Even where the agency adopts measures to avoid revealing identities of complainants and witnesses during the course of its own inquiry, the identities may be revealed on review by the Merit Protection Commissioner, the Fair Work Commission, in related criminal proceedings, or in the context of a legal challenge to the decision. It is appropriate for agencies to let disclosers and witnesses know that while their identities will be kept confidential so far as the law allows, they may be revealed during the investigation or subsequently. In that context, it may be useful to provide advice on the arrangements in place to protect the discloser and witnesses from possible reprisals in the event that identities are disclosed.


Footnotes

52 See http://www.ombudsman.gov.au/pages/pid/pid-resources/.

53 If the disclosure relates to conduct in another agency, in whole or in part, the disclosure may be allocated to that agency for handling (see ss43 to 45 of the PID Act).

54 Under s77 of the PID Act, an agency head who is a principle officer for the purposes of the PID Act can delegate any of his or her powers under that Act to a public official who belongs to their agency.

55 See ss9 to 24 of the PID Act.

56 See ss65(1) and (2) of the PID Act.