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Sect 4.17 Whistleblowing

As of 15 January 2014 the APS whistleblowing scheme has been replaced by the Public Interest Disclosure Act 2013 (PID Act). The PID Act aims to:

  • encourage and facilitate disclosure of information by public officials about suspected wrongdoing in the public sector
  • ensure that public officials who make public interest disclosures are supported and protected from adverse consequences
  • ensure that disclosures by public officials are properly investigated and dealt with.

The Commonwealth Ombudsman is responsible for promoting awareness and understanding of the PID Act and more information on this Act can be found on the Ombudsman's website at www.ombudsman.gov.au.

By 15 January 2014, each agency needs to have available information on how people can make a protected disclosure about suspected wrongdoing within that agency.

Agencies may continue to use the guidance provided in this guide (APS Values and Code of Conduct – In Practice) for reference, but should be aware that it may not reflect current legislative requirements.

Relevant Values and elements of the Code of Conduct

APS Values

  • The APS is apolitical, performing its functions in an impartial and professional manner.
  • The APS has the highest ethical standards.

APS Code of Conduct

  • An APS employee must act with honesty and integrity in the course of APS employment.
  • 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 at all times behave in a way that upholds the APS Values and good reputation of the APS.

Public Service Regulations

2.1

  1. This regulation is made for subsection 13 (13) of the Act.
  2. This regulation does not affect other restrictions on the disclosure of information.
  3. An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.
  4. An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if the information:
    1. was, or is to be, communicated in confidence within the government; or
    2. was received in confidence by the government from a person or persons outside the government;
  • whether or not the disclosure would found an action for breach of confidence.
  1. Subregulations (3) and (4) do not prevent a disclosure of information by an APS employee if:
    1. the information is disclosed in the course of the APS employee's duties; or
    2. the information is disclosed in accordance with an authorisation given by an Agency Head; or
    3. the disclosure is otherwise authorised by law; or
    4. the information that is disclosed:
      1. is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law; and
      2. can be disclosed without disclosing, expressly or by implication, other information to which subregulation (3) or (4) applies.
  2. Subregulations (3) and (4) do not limit the authority of an Agency Head to give lawful and reasonable directions in relation to the disclosure of information.

Public Service Act provisions

Whistleblowing refers to the reporting of information which alleges a breach of the APS Code of Conduct by an employee or employees within an agency. Section 16 of the PS Act provides legislative protection for whistleblowers29 within the APS.

Regulation 2.4(1) of the Public Service Regulations 1999 requires agency heads to establish procedures to manage whistleblowing reports that must meet the minimum requirements set out in regulation 2.4(2).

The Public Service Commissioner's Direction 2.5, which relates to the APS having the highest ethical standards (s. 10(1)(d)), reinforces the requirement for agency heads to ensure that procedures are in place to manage whistleblowing disclosures. The direction also requires agency heads to put in place measures to ensure that APS employees are aware of the procedures and are encouraged to make appropriate disclosures.

Avenues for whistleblowing

The whistleblowing scheme is based on the expectation that most whistleblowing reports will be made and investigated within the relevant agency.

However, whistleblowers who are not satisfied with the outcome of an investigation conducted by their agency can refer the matter to the Public Service Commissioner or the Merit Protection Commissioner (regulation 2.4(2)(g)).

A disclosure made by an APS employee directly to the Public Service or the Merit Protection Commissioners would only be considered where the Commissioner agrees that the matter is so sensitive that it would be inappropriate to report it to the relevant agency head. For example, the employee may allege the agency head personally breached or was complicit in another person breaching the APS Code (regulation 2.4(2)(c)). In all other cases, a report should be made in the first instance to the agency head or a person nominated by the agency head.

Protection of whistleblowers

Section 16 of the PS Act provides that 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 to an authorised person.

Because the PS Act prohibits victimisation and discrimination by persons performing functions 'in or for an Agency', contractors as well as APS employees are prohibited from taking retaliatory action against whistleblowers.

The whistleblower scheme is not designed to resolve personal grievances about employment decisions, which are the subject of other agency review processes and promotion review committees.

Although there is no specific reference to whistleblowers, the Fair Work Act and the OH&S (CE) Act also provide some protection.

Sub-section 772(1)(e) of the Fair Work Act states that employment cannot be terminated for: 'the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.'

The OH&S Act includes a similar provision where an employee who complains about a work-related health, safety or welfare matter cannot be dismissed (s. 76).

Unauthorised disclosures

Public Service Regulation 2.1 creates a duty for the purposes of section 70 of the Crimes Act 1914, which makes it an offence for an APS employee to publish or communicate information, obtained in the course of their duties, that they have a duty not to disclose. However, a disclosure that is made in accordance with the PS Act and regulations (that is, to the relevant agency head, the Public Service Commissioner, the Merit Protection Commissioner or persons authorised by them) is not considered an unauthorised disclosure of information or an offence under s. 70 of the Crimes Act.

In addition, the Code (s. 13(6)) requires APS employees to maintain appropriate confidentiality about dealings with any Minister or Minister's member of staff. This is an important obligation. Because there are various processes in the APS for raising concerns, including the whistleblower scheme, there is no justification for employees to 'leak' information, which can only undermine the essential relationship of trust, particularly with Ministers and the Government.

Confidential and anonymous disclosures

Sometimes people may not wish to disclose their identity when they report a breach of the Code. An anonymous disclosure, supported by sufficient evidence to justify an investigation, should be dealt with in accordance with the agency's whistleblowing procedures.

Under the Privacy Act, a whistleblower's identity is considered 'personal information' and therefore protected. 'Personal information' can only be disclosed without the individual's consent in certain circumstances prescribed under the Privacy Act, such as to protect public revenue or enforce criminal law.

However, the person or agency to which the personal information is disclosed shall not use it for a purpose other than that for which it was provided.

The agency head, the Public Service Commissioner or the Merit Protection Commissioner may refer information provided by a whistleblower to another appropriate agency, such as the Australian Federal Police, the State Police, or the Commonwealth Director of Public Prosecutions, should they consider it necessary. If this occurs, it is likely that the substance of the whistleblower's complaint, and so perhaps their identity, will become public. The agency head, and Public Service or Merit Protection Commissioners cannot direct or control how other agencies may investigate the complaint. However, the whistleblower remains protected under s. 16 of the PS Act.

Defamation

The regulations do not protect a whistleblower from liability for defamation. Common law protection applies, as modified by state or territory legislation where applicable. At common law, the defence of qualified privilege applies to a whistleblower sued for defamation by the person who has allegedly breached the Code, as long as the statements alleged to be defamatory were made in good faith and to an authorised person.

It should be emphasised that the protection of qualified privilege is unlikely to be available if the disclosure is made to the media.

As mentioned above, a disclosure that is made in accordance with the PS Act and regulations is not considered an unauthorised disclosure of information or an offence under s. 70 of the Crimes Act.

Frivolous or vexatious allegations

Agency heads, the Public Service or Merit Commissioners or other authorised persons do not have to investigate reports that are considered frivolous or vexatious.

The Commonwealth Ombudsman

Whistleblowing provisions do not affect an APS employee's right to complain to the Commonwealth Ombudsman about actions taken or decisions made by an agency. However, the Commonwealth Ombudsman cannot investigate complaints about actions taken or decisions made by:

  • politicians
  • private individuals or companies
  • courts or tribunals
  • state or local governments
  • government Ministers
  • some government business enterprises or
  • employment related matters, except in certain cases in the Australian Defence Force.

More information about the Commonwealth Ombudsman's functions can be found on the Ombudsman's website at: www.ombudsman.gov.au.

Inspector-General of Intelligence and Security

The Inspector-General of Intelligence and Security oversees activities of the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Signals Directorate (DSD), Defence Intelligence Organisation (DIO), the Office of National Assessments (ONA) and Defence Imagery and Geospatial Organisation (DIGO). Complaints relating to illegality or impropriety by employees in these agencies may be referred to the Office of the Inspector-General.

29 For the purposes of the PS Act a whistleblower is an APS employee who reports a breach (or alleged breach) of the code of Conduct to an authorised person.