The public interest disclosure scheme — what is it and how does it work?

On 15 January 2014 the Public Interest Disclosure Act 2013 quietly commenced, heralding a new era in Commonwealth public sector whistleblowing.

The aim of the legislation is to promote the integrity and accountability of the Commonwealth by encouraging and facilitating public interest disclosures, supporting and protecting people who make disclosures and properly investigating disclosures once they are made.

So what has that got to do with me, we hear you say?

If you are a current or former APS employee, current or former employee of a Commonwealth company or a statutory body or a current or former contractor or employee of a contractor to the Commonwealth, then you are a “public official” for the purposes of the Act and you can make a public interest disclosure if you see any serious wrongdoing in the Commonwealth public sector. Being a public service town, there are a lot of people in Canberra who are potentially covered by the Act.

On the flip side, if you are a public official up to no good (and that includes contractors), then you may be the subject of a public interest disclosure investigation.

The type of conduct covered by the Act includes anything illegal, perverting the course of justice, corruption or maladministration, abuse of public trust or position as a public official and breaching the APS Code of Conduct.

So what are the protections for disclosers? If you make a public interest disclosure in accordance with the requirements of the Act, then you will be:

  1. Immune from civil, criminal, contractual or administrative liability (such as disciplinary action) for making a public interest disclosure in accordance with the Act. However, the immunity does not extend to wrongdoing by the discloser themselves.
  2. Protected from reprisals – it is now an offence to take reprisal action against a discloser and a discloser can also apply to the Federal courts or for compensation for any detriment caused to them because they have made a disclosure.
  3. Protected from having your identity disclosed – it is a criminal offence to deliberately disclose the identity of the discloser. In reality there will be situations where the identity of the discloser is easily deduced so agencies will need to take steps to maintain the confidentiality of the discloser as best they can.

Agencies will also need to keep the discloser informed of what is happening with the disclosure at each step of the process.

It will be interesting to see how the scheme works out in practice. There are a few instances of Commonwealth conduct in the recent past which may have turned out differently had the scheme been in place – the home insulation scheme is one that springs to mind.

Agencies and heads of Commonwealth companies and statutory bodies have obligations to support and promote the scheme, including setting up policies and educating and training staff. Contractors should also educate their staff in relation to the scheme so if your organisation requires any assistance in becoming PID ready, please contact Jennifer Wyborn. We can conduct training programs and workshops for staff and PID policy and procedure reviews.

For further information, the Commonwealth Ombudsman also has some comprehensive resources available in relation to the Public Interest Disclosure (or PID) Scheme on their website.

Jennifer Wyborn — Partner — Employment & Workplace Relations
(02) 6279 4328
jennifer.wyborn@meyervandenberg.com.au

Deborah Mackenzie — Associate — Employment & Workplace Relations
(02) 6279 4441
deborah.mackenzie@meyervandenberg.com.au