Public Interest Disclosure Procedures


Public Interest Disclosure

All ACT government agencies have responsibilities under the Public Interest Disclosure Act 2012(‘PID Act’) to investigate suspected wrongdoing and take appropriate action.

What is a public interest disclosure?

A person who suspects serious wrongdoing within a government agency can make a public interest disclosure (‘PID’), as long as they reasonably believe that their information reveals a wrongdoing by the agency or an official in the ACT public sector.

A PID can be about the actions of permanent, temporary or casual staff and employees of the ACT public sector entities, including the ACT Legislative Assembly. It can also be about the actions of contractors, sub‐contractors, consultants and volunteers working on ACT Government sponsored projects or on programs funded by the ACT Government.

Disclosable conduct under the Public Interest Act 2012

A disclosable conduct under the PID Act includes:

  • an action of a public sector entity or public official that is
    • maladministration that adversely affects a person’s interest in a substantial 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.
  • a conduct of a person that could
  • be a criminal offence;
  • give reasonable grounds for termination of employment, ending an appointment or terminating the person’s contract for services

The following examples are not within the scope of the PID Act.

  • Making false or misleading allegations knowingly, and vexatious disclosures;
  • Matters that affect only personal or private interests;
  • Complaints relating to individual employment and industrial matters, isolated allegations of bullying or harassment, personnel matters, individual performance management concerns and individual workplace health or safety concerns.

How should a public interest disclosure be made?

A disclosure may be made orally or in writing. There is no prescribed form.

A disclosure can be made anonymously e.g. an anonymous phone call or letter. If adequate information is provided, anonymous reports may be inquired into. However, it will not be possible to keep the discloser protected or informed about the status of their disclosure.

Where a disclosure is made in‐confidence, the discloser’s identity will not be revealed without their consent, unless required by law.

Protection for people who make a disclosure

A person who acts honestly and reasonably in making a disclosure pursuant to the PID Act receives protection from reprisal (detrimental action) that results from the disclosure. The person who takes detrimental action commits an offence.

Examples of detrimental action include:

  • intimidating or harassing the discloser;
  • damaging or taking the discloser’s property;
  • disadvantaging the discloser in relation to their career, employment, trade or business;
  • threats of any of the above; or
  • deliberately causing financial loss to the discloser.

If a disclosure is made in good faith but turns out to be untrue, the discloser is still entitled to protection.

Disclosure Officer

The disclosure officer receives the disclosure, determines if it is within the correct entity, and assesses the allegations to determine if it qualifies as a PID.

A disclosure officer for a PID that relates to an ACT public service entity (‘PS entity’) may be the Public Sector Standards Commissioner (‘PSS Commissioner’), the Head of Service, the Auditor-General, the ACT Ombudsman, the Integrity Commissioner, the Head of the PS entity, or a person appointed by the Head of the PS entity to be a disclosure officer for PIDs for the said entity. For matters that relate to the ACT Legislative Assembly, a disclosure can also be made to the Clerk of the Legislative Assembly.

The Director of Public Prosecutions has appointed his Executive Officer to be a disclosure officer at the ACT ODPP.

If you feel that the matter is so serious that you cannot discuss it with the relevant PS entity, you should inform the PSS Commissioner, ACT Auditor‐General or the ACT Ombudsman.

Investigating entity

The investigating entity must investigate a PID which relates to their entity as soon as possible after receiving the disclosure.

The investigating entity for a PID is the Head of the PS entity to whom the disclosure relates. The Head of the PS entity may elect to delegate all or part of their responsibilities as investigating entity to the disclosure officer.

If an investigation is warranted, the investigating entity will determine the terms of reference for the investigation, decide who will conduct the investigation, monitor progress of the investigation, and provide periodic updates to the discloser and the PSS Commissioner.

The Head of a PS entity may not be responsible for investigating a disclosure that involves them, the Head of Service, or the PSS Commissioner.

Where a PID relates to the Head of a PS entity, the Head of Service must investigate the disclosure. Similarly, where a PID relates to the PSS Commissioner, the Head of Service must investigate the disclosure.

If a disclosure relates to the Head of Service, however, the ACT Ombudsman may investigate the disclosure or refer it to the Head of another entity.

What happens after a disclosure is made

Upon receiving a disclosure, the disclosure officer will have to

  1. acknowledge receipt of the disclosure.
  2. refer the disclosure to the Head of another PS entity if the matter is more appropriately investigated by the other entity.
  3. decide whether the disclosure qualifies as a PID.
  4. if the disclosure is assessed to be a PID, give a copy of the disclosure to the Head of the PS entity to which the disclosure relates, and to the PSS Commissioner.
  5. update the discloser and the PSS Commissioner within three months after the day the disclosure is made on whether the disclosure will be investigated. Should this three-month time frame not be met, a discloser may make their disclosure known to a Member of the Legislative Assembly (‘MLA’) or a journalist.
  6. advise the discloser if the disclosure does not qualify as a PID, provide reasons why it was determined not to be disclosable conduct, and what further action may be taken regarding the complaint. The disclosure officer should also provide the PSS Commissioner with a copy of the disclosure and the communication informing the discloser of this decision.

Before an investigation is undertaken

Before an investigation is undertaken, the investigating entity must:

  • decide whether the investigation is to be conducted internally or externally. The investigating entity must inform the discloser about a referral of the disclosure to another entity.
  • develop clear terms of reference, including timeframes.
  • refer the PID to the Chief Police Officer if the disclosable conduct involves a criminal offence.

If a disclosure is investigated, the investigating entity must inform the discloser and PSS Commissioner of the progress of the investigation at least once every three months.

The investigating entity may decide not to investigate a PID, or may end the investigation of the disclosure, if:

  • the discloser has withdrawn the PID and there is nothing that warrants an investigation; or
  • the discloser has not disclosed their name and contact details and this makes it impracticable for the disclosure to be investigated; or
  • the discloser’s failure to provide assistance makes it impracticable for the disclosure to be investigated; or
  • the disclosed information is wrong in a material way and investigation is not warranted; or
  • the age of the disclosed information makes it impracticable for the disclosure to be investigated; or
  • the substance of the disclosure has already been investigated; or
  • there is a more appropriate way to deal with the disclosure.

If the investigating entity declines to investigate a disclosure, the discloser and the PSS Commissioner will have to be informed of this decision and its reasons.

Determination and action from an investigation

Upon completion of the investigation, the investigating entity will determine whether they believe that the disclosable conduct has occurred, is likely to have occurred, or is likely to occur and what action will be reasonably necessary to:

  • prevent the disclosable conduct continuing or occurring in the future; and
  • discipline any person responsible for the disclosable conduct.

The discloser and the PSS Commissioner will be informed of the outcome of the investigation as well as any action taken or proposed in relation to the disclosure.

What happens if you think your disclosure is not handled properly

If you are not satisfied with how your disclosure was handled, you should raise this with the disclosure officer or the Head of the relevant PS entity. The disclosure officer will address your concerns and explain how your disclosure was handled.

If you remain dissatisfied with the outcome of an investigation, you may report your concerns to the PSS Commissioner, who may review an investigation or any aspect of the handling of a disclosure.

Alternatively, you may complain to the ACT Ombudsman about an action taken by the investigating entity in relation to —

  • the adequacy of the investigating entity’s PID procedures; or
  • whether the investigating entity has followed its PID procedures.

If a complaint is made to the ACT Ombudsman, the Ombudsman may exercise any function of the PSS Commissioner under the PID Act.

Review by Public Sector Standards Commissioner

The PSS Commissioner may, at any time, review -

  • the investigating entity’s decision to refuse to investigate a PID, or to end the investigation of the disclosure; and
  • an action taken, or proposed to be taken, by a PS entity in relation to a PID

After reviewing a decision, the PSS Commissioner may:

  • amend the decision; or
  • set aside the decision and substitute a new decision; or
  • take no action.

After reviewing an action, or proposed action, the PSS Commissioner may direct an entity or public official to take or cease action in relation to the disclosable conduct.

Investigation by the Ombudsman

The ACT Ombudsman may investigate complaints about the actions and decisions of entities to determine if they are wrong, unjust, unlawful or discriminatory.

The ACT Ombudsman will not, however, investigate a complaint unless the concern has been raised with the entity concerned and an attempt has been made to solve the problem.

Public interest disclosure to third parties

A disclosure may be made to a MLA or journalist where:

  • an investigating entity has refused or failed to investigate the disclosure; or
  • the discloser has not been told within three months after the day the disclosure is made whether or not the disclosure will be investigated; or
  • the discloser has been told the disclosure will be investigated but has not been told about the progress of the investigation for a period of more than three months; or
  • there is clear evidence that one or more instances of disclosable conduct mentioned in the disclosure has occurred or was likely to have occurred, but the discloser has been told that no action will be taken in relation to the disclosable conduct.
  • a person honestly believes on reasonable grounds that:
    • they have information that tends to show disclosable conduct; and
    • there is a significant risk of detrimental action to them or someone else if a disclosure is made through the usual process; and
    • it would be unreasonable to make a disclosure through the usual process.

If you approach a MLA or journalist:

  • you must disclose only sufficient information, and not more than is reasonably necessary, to show that the conduct is disclosable conduct; and
  • if a PID was made through the usual process — you may inform the MLA or journalist about the progress and outcome of any investigation.

A disclosure made to a journalist or MLA, other than in the above circumstances, may constitute an unauthorised release of official information and render the individual liable to misconduct proceedings under the Public Sector Management Act 1994 and/or prosecution under the Crimes Act.

Relevant links

Public Interest Disclosure Act 2012

Public Interest Disclosure Factsheet

Public Interest Disclosure Guidelines 2019

Contact

If you think you have information that should be investigated under the PID Act, you are advised to get in touch with us. Our contact details are provided below.

Executive Officer
Mail: GPO Box 595 Canberra City ACT 2601
Telephone: (02) 6207 5399
Email: Feedbackactdpp@act.gov.au