Who can make a public interest disclosure?
A person must be a current or former ‘public official’, as defined in ss69-70 of the PID Act, to make a public interest disclosure (s26(1)(a)).
In general, a person can make a disclosure if they belong, or previously belonged, to one of the agencies covered by the PID Act. This includes Commonwealth public servants, members of the Defence Force, appointees of the Australian Federal Police, Parliamentary Service employees, directors or staff of Commonwealth companies, statutory office holders or any other person who exercises powers under a Commonwealth law.
Individuals and organisations that provide goods or services under a Commonwealth contract (defined in s 30(3)) and their officers or employees, are also public officials for the purposes of the PID Act. This includes subcontractors who are responsible for providing goods or services, either directly or indirectly, to an agency covered by the PID Act for the purposes of a Commonwealth contract (s30(2)).
The PID Act specifically excludes some individuals from being public officials under the Act. Public official does not include a Member of Parliament, staff employed under the Members of Parliament (Staff) Act 1984 (MOP(S) Act employees), a judicial officer, a member of a Royal Commission or grant recipients.
A public official whose ordinary functions include sharing information about wrongdoing in the agency with their supervisor or an Authorised Officer (for example, those working in internal fraud control, case management, or protective security) will not meet the requirements for making an internal disclosure if the disclosure is made in the course of performing the discloser’s ordinary functions as a public official (s26(1) − see 4.1.3.1 of this guide). If a public official in such a role intends to make a public interest disclosure, they will need to clearly express that intent when making the disclosure.
Deeming individuals to be public officials
An Authorised Officer may deem an individual to be a public official if they reasonably believe the individual has information about wrongdoing and proposes to make a disclosure (s 70). Authorised officers are the Principal Officer of an agency (i.e., the agency head) and officers that the Principal Officer appoints as Authorised Officers under the PID Act (s 36). It is not necessary for the disclosing individual to request that they be deemed a public official, but the Authorised Officer must provide the individual with a written notice of the determination.
An Authorised Officer might consider it appropriate to deem an individual to be a public official if the individual is not a public official, but nevertheless has ‘inside information’ about the agency’s wrongdoing. Examples might include:
- a current or former volunteer with an agency
- a member of an advisory body to a Commonwealth agency (where the member’s terms of engagement do not meet the definition of a public official)
- an employee of an organisation that receives grant funding from the Australian Government, or
- state and territory department officials who work alongside Commonwealth officials.
An Authorised Officer may also decide to deem a person to be a public official if they do not know, or cannot be certain, whether the person is a public official. For example, the person may be unwilling to provide identifying information for fear of reprisal. The relevant test is that the person was not a public official at the time the information they are disclosing was obtained (s70(1)(b)). If the Authorised Officer is otherwise satisfied that the person is or has been a public official, then deeming is not required.
An Authorised Officer’s power to deem a person to be a public official operates only for the purposes of allowing that person to make a disclosure under the PID Act (s 70). An Authorised Officer cannot extend the reach of the PID Act by deeming a person to be a public official for the purposes of allowing a second person to make a disclosure about that first person’s conduct. Additionally, a judicial officer, member of Parliament, member of a Royal Commission or a person employed under the Members of Parliament (Staff) Act 1984 cannot be deemed a public official for the purposes of making a disclosure (s70(3A)).
What can be disclosed?
A public official can disclose information that they believe, on reasonable grounds, tends to show 'disclosable conduct'.
Disclosable conduct covered by the PID Act has to be conduct on the part of one of the following:
- an agency
- a public official in connection with their position
- a contracted Commonwealth service provider in connection with entering into or giving effect to the contract
The kinds of conduct that a disclosure can be made about are listed in the table to s29(1) of the PID Act. They are conduct that:
- contravenes a Commonwealth, State or Territory law
- in a foreign country, contravenes a foreign law that applies to the agency, official or service provider
- perverts the course of justice
- is corrupt
- constitutes maladministration, including conduct that is based on improper motives or is unreasonable, unjust, oppressive or negligent
- is an abuse of public trust
- involves fabrication, falsification, plagiarism or deception relating to scientific research, or other misconduct in relation to scientific research, analysis or advice
- results in wastage of public money or public property
- unreasonably endangers health and safety
- endangers the environment
- is prescribed by the PID rules (s29(1)).
Disclosable conduct also includes conduct by a public official that:
- involves or is engaged in for the purposes of abusing their position as a public official; or
- could give reasonable grounds for disciplinary action resulting in the termination of the public official's engagement or appointment (s29(2)).
What is not disclosable conduct?
Personal work-related conduct
The PID Act provides that personal work-related conduct (s 29A) is not disclosable conduct. Personal work-related conduct is conduct engaged in by one public official in relation to another public official that has personal implications for the second official. The conduct must have occurred in relation the second official’s engagement or appointment and/or in the course of their employment or exercise of their functions and powers as a public official. It includes, but is not limited to, conduct relating to:
- interpersonal conflict, such as bullying or harassment
- changing a person’s duties
- disciplinary action
- adverse decisions about promotion or temporary acting arrangements
- terms and conditions of employment or engagement
- suspension or termination
- actions that could be reviewed under s33 of the Public Service Act 1999, or comparable review processes relating to terms or conditions of engagement or appointment
Excluding personal work-related conduct from the scope of disclosable conduct recognises that personal work-related conduct is often dealt with more effectively under other frameworks, as distinct from the PID Act, which is focused on significant integrity wrongdoing.
Personal work-related conduct will be disclosable conduct where the personal work-related conduct:
- amounts to reprisal action
- is of such a significant nature that it would undermine public confidence in an agency, or
- has other significant implications for an agency.
Personal work-related conduct that could be considered to be of a significant nature or have such significant implications for an agency as to affect public confidence in the agency, would depend on the circumstances of each case.
Disclosures of solely personal work-related conduct will not, unless an exception applies, constitute an internal disclosure for the purposes of the PID Act. Disclosures of information that tends to show both personal work-related conduct and disclosable conduct will still need to be allocated as an internal disclosure under the PID Act.
Conduct relating to courts, tribunals and the Parliament
The PID Act has limited application to courts and tribunals. The following aspects of court and tribunal operations are excluded from the categories of disclosable conduct in the PID Act (s32):
- the conduct of judicial officers (defined in s32(1))
- the judicial functions of court staff, tribunal staff or tribunal members
- the conduct of tribunal members or tribunal staff when exercising a power of the tribunal
- any other conduct related to a court or tribunal unless it is of an administrative nature and does not relate to the management or hearing of matters before the court or tribunal.
The conduct of members of parliament or of MOP(S) Act employees is not covered by the PID Act (because they are not ‘public officials’ as defined in s69). However, the departments of the Parliament and their employees are covered.
Disagreement with government policy or actions
It is not disclosable conduct just because a person disagrees with:
- a government policy or proposed policy
- action or proposed action by a minister, the Speaker of the House of Representatives or the President of the Senate
- expenditure or proposed expenditure related to such policy or action (s31).
Disclosable conduct also does not include judicial conduct, that is, the conduct of judicial officers, the judicial functions of court staff, tribunal staff or tribunal members, or any other conduct related to a court or tribunal unless it is of an administrative nature and does not relate to matters before the court or tribunal (s32).
The conduct of members of Parliament is not covered by the PID Act. However, the departments of the Parliament and their employees are covered.
Intelligence agencies
Disclosable conduct also does not include the proper performance of the functions and proper exercise of the powers of an intelligence agency or its officials (s33).
Making a disclosure
In order to gain the protections available under the PID Act, a disclosure must be made to an authorised recipient (s26). The PID Act focuses on the reporting and investigating of wrongdoing within government (internal disclosures) but allows for reporting outside government in specified circumstances.
Making an internal disclosure
Under the PID Act, a public official can make an internal disclosure to their current supervisor or an Authorised Officer in:
- their current agency, or
- the agency to which they previously belonged, or
- the agency to which the disclosure relates.
Authorised officers are the Principal Officer of an agency (i.e. the agency head), and officers that the Principal Officer appoints as Authorised Officers under the PID Act (s36). If a public official has information about suspected wrongdoing in an agency other than the one in which they work, they can choose to make their disclosure directly to an Authorised Officer in that other agency. However, if the conduct disclosed relates to an intelligence agency, the public official must disclose it to an Authorised Officer in that agency (or the IGIS) and not to their own agency.
A public official can also make a disclosure to Authorised Officers of the Commonwealth Ombudsman, if they believe on reasonable grounds that it would be appropriate for the Ombudsman to investigate (ss26(1), 34). This could include, but would not be limited to, circumstances where the discloser believes that the agency will not take appropriate action to deal with the conduct disclosed.
If the matter involves an intelligence agency or agency with intelligence functions (see s8 definition), there are 2 options. Either the public official can make a disclosure to an Authorised Officer in the intelligence agency or, if they believe on reasonable grounds that it would be appropriate for the IGIS to investigate, the public official may make a disclosure to an Authorised Officer of the IGIS (see Inspector-General of Intelligence and Security ).
The PID Act also allows for agencies with special investigative powers to be prescribed under PID rules. If the matter concerns their functions and powers, a disclosure may be made to those special investigative agencies. However, at the time of publication there are no prescribed investigative agencies.
Making a disclosure internally gives the agency the chance to investigate the matter and remove any danger or correct any wrong practices as quickly as possible.
Making other disclosures
A public official must use one of the proper avenues to gain the protections available under the PID Act. This means that a public official will not receive these protections if they give the information to someone outside government, for example a journalist or union representative, unless the conditions for an external or emergency disclosure are met. If these conditions are not met, they may be in breach of their duty to maintain appropriate confidentiality in relation to official information they have gained in the course of their work, or be subject to other civil, criminal or disciplinary action.
External disclosures
A public official who has already made an internal disclosure under the PID Act may in some circumstances subsequently make a disclosure to any person (except a foreign public official), if (s 26(1) item 2):
- the final report of the internal PID investigation has not been prepared within 90 days of allocation, or the extended investigation period approved by the Ombudsman or the IGIS (this condition does not apply to Ombudsman/IGIS investigations under their respective legislation)
- the PID investigation has been completed and the discloser believes on reasonable grounds that the investigation was inadequate
- an investigation has been completed (whether the investigation was conducted under the PID Act or under other legislation) and the discloser believes on reasonable grounds that the response to the investigation was inadequate.
Additional restrictions apply to external disclosures (s26):
- the public official must not disclose more information than is reasonably necessary to identify the wrongdoing
- all of the externally disclosed information must have been the subject of at least part of a prior internal disclosure
- on balance, making that external disclosure must not be contrary to the public interest.
The external disclosure must not include intelligence information, including sensitive law enforcement information, and none of the information disclosed can concern the conduct of an intelligence agency. Further, the definition of ‘disclosable conduct’ excludes conduct that an intelligence agency, or one of its officials, engages in as part of the proper exercise of the intelligence agency’s functions.
If the agency decides not to allocate or investigate the official’s disclosure (i.e., by making a decision under s 43 or s 48 of the PID Act, including a decision not to allocate or investigate because the conduct would be better investigated under another law or power), this will not meet the criteria for an official to make an external disclosure. The official may complain to the Ombudsman about the agency’s decision not to allocate or investigate their disclosure. If the disclosure relates to one of the intelligence agencies or the intelligence functions of the ACIC or AFP, the official may complain to the IGIS.
Emergency disclosure
If a public official believes on reasonable grounds that the information they have involves a substantial and imminent danger to the health or safety of one or more people or to the environment, they may make an emergency disclosure to any person except a foreign public official (s26(1) item 3), provided they meet certain requirements:
- The extent of the information they disclose must be only what is necessary to alert the recipient of the substantial and imminent danger.
- If they have not previously made an internal disclosure about the matter, or if they have done so and the investigation is not yet completed, there must be exceptional circumstances justifying their decision to make an external disclosure. This might include, for example, if the investigation was taking too long to complete having regard to the risk to a person’s health and safety.
An emergency disclosure must not include intelligence information, including sensitive law enforcement information.
Legal practitioner disclosure
An official may make an emergency or external disclosure to a legal practitioner (noting these disclosures may be made to any person other than a foreign public official in the circumstances discussed above).
There is also a specific category of public interest disclosure under the PID Act – ‘a legal practitioner disclosure’ - which allows a public official to disclose information to an Australian legal practitioner for the purposes of seeking legal advice or professional assistance in relation to the official’s actual or proposed disclosure elsewhere (i.e., an internal disclosure, an emergency disclosure or an external disclosure).
An Australian legal practitioner is an Australian lawyer admitted to the legal profession by a Supreme Court of an Australian State or Territory and who holds a practicing certificate under a law of an Australian State or Territory (s 8 PID Act). In order to make a ‘legal practitioner disclosure’, the disclosure by the public official to the lawyer must be made for the purpose of obtaining legal advice or professional assistance from the lawyer in relation to a disclosure that the discloser has made or proposes to make.
For a ‘legal practitioner disclosure’, the official must not disclose intelligence information including sensitive law enforcement information (s26(1) item 4).
Disclosures to the NACC
A public official may make a public interest disclosure directly to the NACC. The NACC Commissioner has discretion to investigate a corruption issue raised through a disclosure if they are of the opinion that the issue could involve serious or systemic corrupt conduct. If the disclosure is made to the NACC and the Commissioner decides not to investigate it, the Commissioner may refer it back to the relevant agency for consideration or investigation.
The NACC Act and the PID Act offer different protections to disclosers. The NACC Act protections are available to any person who provides information or evidence related to a corruption issue to the Commission. Importantly, a public official will be able to access protections under both schemes where the information or evidence disclosed to the Commission also constitutes disclosable conduct under the PID Act.