Public Interest Disclosure Act 2012
The Public Interest Disclosure Act 2012 (the Act) places the onus on the ACTPS entity to which the disclosure relates to take action to resolve a problem.
The Act clarifies the types of wrongdoing that fall within the definition of disclosable conduct; establishes a clear reporting pathway for the receipt and handling of disclosures; and provides specific circumstances under which a disclosure can be made to a third party.
The Justice and Community Safety Directorate is applying Australian Capital Territory Public Interest Disclosure Guidelines 2017 which can be found at http://www.legislation.act.gov.au/
Sometimes matters raised are of a nature that is very serious and sit outside the normal complaint or feedback system. Certain concerns trigger a special framework put in place to handle serious and/or substantial issues and are called a ‘Public Interest Disclosure’ (PID).
In broad terms, a PID might arise when someone reports substantial wrongdoing in the ACT Public Sector. The PID scheme aims to encourage those in a position to report such wrongdoing and protect them when they come forward.
A PID might relate to events which are happening now, in the past, or that may happen in the future.
A PID can be about the actions of staff and employees of the Public Sector and ACT Legislative Assembly, including Members of the Legislative Assembly.
It can also be about the actions of contractors, sub-contractors and volunteers. This might include not-for-profit or other non-governmental organisations providing a public service to the community under a contract with an ACT Public Sector entity.
Disclosable conduct includes activity by an individual or an ACT Public Sector entity that:
- Is conduct of a person that could, if proved
- be a criminal offence;
- give reasonable grounds for termination of employment, ending an appointment or terminating the person’s contract for services
- is action of a public sector entity or public official that is
- maladministration that adversely affects a person’s interest in a substantial and specific way
- a substantial misuse of public funds
- a substantial and specific danger to public health or safety
- a substantial and specific danger to the environment.
Any person with information that indicates substantial mismanagement or misuse of public resources can make a PID. This includes members of the public, contractors who work with ACTPS entities and ACTPS employees.
A person may make a PID even if they are not able to identify a particular person who is responsible for the activity.
The Directorate will also accept anonymous disclosures. However, where an anonymous disclosure is made, the discloser should be aware that it will not be possible to keep them informed about the way the disclosure is handled nor will the ACTPS entity be able to provide them with protection.
A PID can be made by anyone in any way - orally or in writing. It does not have to be a formal complaint or report.
ACT Public Sector employees are able to make a PID to their supervisor or manager.
A PID can also be made to a public official of an ACT Public Sector entity, for example:
- the Chief Financial Officer in relation to a disclosure about the substantial misuse of public funds by an employee of the entity;
- a Workplace Health and Safety representative of an ACTPS entity in relation to a disclosure about an employee of the entity threatening physical violence against another employee; and
- an ACTPS employee on a clinical standards committee for a public hospital in relation to a disclosure about medical malpractice at the hospital that was causing or likely to cause a substantial danger to public health.
Once the PID is disclosed, the supervisor or other public official becomes a Receiving Officer. The Receiving Officer does not have the authority to make decisions about a PID. They must forward the PID to the Designated Disclosure Officer.
Whether a person has witnessed disclosable conduct personally or someone has told them about it, they should pass that information to a Designated Disclosure Officer (DDO). This is especially important for those receiving second hand information that indicates potential disclosable conduct, including supervisors and managers receiving information from their staff.
The DDO is the person in the respective ACTPS entity who will make a decision relating to a PID.
The role of the DDO is to:
- receive a PID;
- support and notify the discloser as appropriate;
- ensure appropriate action is taken in relation to the PID; and
- maintain the effective administration of the process.
The JACS DDOs are:
- Chief Operating Officer
- Chief Human Resources Officer
- Executive Branch Manager, Governance and Business Improvement and Senior Executive Responsible for Business Risk and Integrity.
Insert hyperlink to notified instrument https://www.legislation.act.gov.au/View/ni/2018-465/current/PDF/2018-465.PDF
For PIDs which relate to the head of an ACTPS entity the DDO could be any of the following:
- the Commissioner for Public Administration; or
- the Head of Service; or
- the ACT Auditor-General; or
- the ACT Ombudsman; or
For a PID which relates to the Legislative Assembly, a DDO is any of the following:
- the clerk of the Legislative Assembly;
- the ACT Auditor-General; or
- the ACT Ombudsman.
Employees in the Public Sector who have information which is so serious that they cannot discuss it with someone within their entity should inform the Commissioner for Public Administration, ACT Ombudsman or the ACT Auditor-General.
Under the Act, a person who acts honestly and reasonably in making a PID receives protection from attacks or reprisal that results from the disclosure (reprisal is called detrimental action in the Act).
If a person retaliates against the discloser by directly or indirectly punishing them for reporting information; that person will be held accountable for their behaviour. Under Section 40 of the Act, the person who has undertaken detrimental action has committed an offence. This person may be disciplined or pursued for damages in court (section 41).
For more information regarding what happens after making a disclosure please refer to the Guidelines
If you are concerned that you have information that should be investigated under the Public Interest Disclosure Act, or have any other queries about the legislation, these should be directed in the first instance to the Justice and Community Safety (JACS) Senior Executive Responsible for Business Integrity and Risk (SERBIR).
JACS SERBIR contact details
Liz Beattie, Acting Executive Branch Manager
Governance and Business Improvement
Justice and Community Safety
Mail: GPO Box 158 CANBERRA ACT 2601
Telephone: (02) 6207 4813
Facsimile: (02) 6207 0499