The Commonwealth Public Interest Disclosure Act 2013 (PID Act) commenced operation on 15 January 2014. The PID Act establishes the first stand-alone whistleblower protection scheme at a federal level and is designed to further promote integrity and accountability of the Commonwealth public sector.
Scope of the PID Act
Like existing State based whistleblower legislation, the PID Act encourages and facilitates the making of public interest disclosures by Commonwealth public officials and operates to protect those officials from adverse consequences relating to a disclosure.
Under the PID Act, specific roles and powers are conferred on the office of the Commonwealth Ombudsman and Inspector-General of Intelligence and Security (IGIS) to ensure robust protections are afforded to public officials who report wrongdoing in the public sector. Importantly, protections are extended beyond employees of the Australian Public Service (APS) to include persons with a relevant connection to the Commonwealth public sector.
What is Disclosable Conduct?
Disclosable conduct is defined in the legislation as conduct that:
- contravenes a law of the Commonwealth, a State or a Territory
- perverts the course of justice or amounts to corruption
- amounts to wastage of public funds or property
- is an abuse of public trust or the public official’s position
- unreasonably endangers health and safety or the environment
- constitutes misconduct relating to scientific research, analysis or advice, or
- is maladministration.
Disclosable conduct does not include, however, conduct of Ministers, the Speaker of the House of Representatives and/or the President of the Senate, and cannot be used to challenge government policy, action or expenditure.
A Significant Step Forward
The PID Act represents a significant expansion for whistleblower protection in the Commonwealth public service. Prior to the introduction of the PID Act, regulation of public interest disclosures was contained in section 16 of the Public Service Act 1999 (PS Act) and Division 2.2 of the Public Service Regulations 1999. The PS Act limited protection to APS employees in respect of breaches (or alleged breaches) of the Code of Conduct. Disclosures made under the PS Act could be made to an Agency Head, the Australian Public Service Commissioner or the Merit Protection Commissioner.
Under the PID Act, a disclosure may be made internally or externally, to either an authorised internal recipient (ie the ‘principal officer’ of an Agency), or to a supervisor of the discloser. A disclosure can also in certain circumstances, be made to a lawyer or to any person other than a foreign public official.
The PID Act sets out strict requirements on how agencies are to allocate the handling of disclosures, when a disclosure must be investigated and by whom (ie whether the investigation is to be carried out by the principal officer, the Ombudsman, or the IGIS). Investigations of a disclosure must be completed within 90 days after the disclosure has been made.
Interaction With the Fair Work Act 2009 and Other Laws
The PID Act contains an additional level of protection, being characterised as a ‘workplace law’ within the meaning of the Fair Work Act 2009. The right to make a public interest disclosure is therefore now a workplace right for employees, in respect of which employees are protected from adverse action.
The PID Act also has extraterritorial application, covering qualifying disclosures relating to conduct by Australian public agencies or officials where that conduct occurs outside Australia and contravenes a foreign law applicable to that agency or official and there is a corresponding Australian law in force.
Implications for Government Agencies
The PID Act creates a far more complex regime for disclosures than previously existed. It is important therefore to educate staff on the purpose of the legislation and in particular those officers to whom a public interest disclosure is likely to be made. This includes Agency Heads and those with delegable authority, managers and human resource teams, to ensure the handling of a disclosure is in accordance with legislative requirements.
Clearly, agencies will need to review existing policies or develop a new policy if they have not already done so. This policy should, among other things, identify what is disclosable conduct, how a disclosure can be made and what the implications are for doing so.
If a public interest disclosure concerns the conduct of APS employees and is also capable of being investigated as a suspected breach of the APS Code of Conduct, an agency may have two courses of action available. Implementing the most correct course of action requires a comprehensive understanding of the PID Act regime, with any determination not to investigate under the PID Act supported by sound reasons for the decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Reprinted with permission by K&L Gates, Sydney, Australia www.klgates.com