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Public Interest Disclosure Standard 2013

Authoritative Version
  • - F2013L02146
  • In force - Superseded Version
  • View Series
Standards/Other as made
This instrument sets a number of standards in relation to specific matters covered by the Public Interest Disclosure Act 2013.
Administered by: Attorney-General's
Registered 18 Dec 2013
Tabling HistoryDate
Tabled HR11-Feb-2014
Tabled Senate11-Feb-2014

EXPLANATORY STATEMENT

Public Interest Disclosure Standard 2013

Issued by the Commonwealth Ombudsman

The primary purpose of the Public Interest Disclosure Act 2013 (the Act) is to establish a legislative scheme for the investigation of allegations of wrongdoing in the Commonwealth public sector, and to provide protections for both current and former public officials who make certain types of ‘disclosures’. The Act is due to commence no later than 15 January 2014.

Under the Act, a number of individuals are given discrete functions. These include the principal officers of those agencies to which the Act applies, public officials who make disclosures under the Act, supervisors of public officials and those individuals who are ‘authorised officers’ under the Act.

The Act also confers special functions on the Commonwealth Ombudsman (the Ombudsman) and the Inspector-General of Intelligence and Security (the IGIS). These functions include assisting principal officers of agencies (‘intelligence agencies’ in the case of the IGIS), authorised officers and current and former public officials in relation to the operation of the Act.  The Ombudsman and the IGIS also have responsibility for conducting education and awareness programs relating to the Act, and for assisting one another in relation to the performance of their respective statutory functions.

In addition to these functions, subsection 74(1) of the Act gives the Ombudsman the power to determine standards relating to the following matters:

(a)    procedures, to be complied with by the principal officers of agencies, for dealing with internal disclosures and possible internal disclosures made under the Act;

(b)   the conduct of investigations under the Act;

(c)    the preparation, under section 51 of the Act, of reports of investigations conducted under the Act; and

(d)   the giving of information and assistance under subsection 76(3) of the Act (relating to the preparation of the Ombudsman’s annual report on the operation of the Act), and the keeping of records for the purposes of that subsection.

Subsection 74(3) of the Act requires that standards relating to the matters covered in paragraphs (a), (b) and (c) be in force at all times after the commencement of section 74.

Legislative authority

Section 4 of the Acts Interpretation Act 1901 provides that if an Act will commence at a point in time subsequent to when it was enacted, and that Act will, when it does commence, confer power to make an appointment or an instrument of a legislative or administrative character, then that particular power may be exercised before the commencement date as if the relevant commencement had occurred.

Section 4 of the Acts Interpretation Act 1901 applies to the Act. The Ombudsman relies on the specific authority conferred by subsection 4(2) of the Acts Interpretation Act 1901 to determine the Public Interest Disclosure Standard 2013 (the Standard) under subsection 74(1) of the Act.

Purpose and operation of the Standard

Procedures for dealing with internal disclosures—paragraph 74(1)(a) of the Act

The Standard prescribes certain things in relation to principal officers’ preparation of procedures, under section 59 of the Act, for dealing with internal disclosures (or possible internal disclosures) that relate to their agency. 

It is expected that when a principal officer of an agency is creating procedures under section 59 of the Act they will include, address or give effect to any matters prescribed by the Standard. 

Conduct of investigations—paragraph 74(1)(b) of the Act

The Standard establishes the minimum requirements that a principal officer needs to meet when conducting an investigation under Part 3 of the Act. 

While section 53 of the Act allows a principal officer of an agency to conduct an investigation of a disclosure as they think fit—including by obtaining information and making inquiries of persons—he or she must do so having regard to any standards that the Ombudsman has determined under section 74. 

The Standard will operate alongside existing investigate procedures in place for dealing with fraud-related matters and alleged breaches of the Australian Public Service Code of Conduct (see subsections 53(4) and (5) of the Act). The Standard will not apply when the principal officer of an ‘investigative agency’ decides to investigate a disclosure that has been allocated to it under a ‘separate investigative power’.

Preparation of reports—paragraph 74(1)(c) of the Act

Under subsection 51(1) of the Act a principal officer of an agency must, on completing an investigation under Division 2 of Part 3 of the Act, prepare a report of that investigation. 

Subsection 51(2) provides that any such report must set out:

(a)    the matters considered in the course of the investigation;

(b)   the duration of the investigation;

(c)    the principal officer’s findings (if any);

(d)   the action (if any) that has been, is being, or is recommended to be, taken; and

(e)    any claims made about, and any evidence of, detrimental action taken against the discloser, as well as the investigating agency’s response to those claims and that evidence.

In preparing a report under section 51 a principal officer must comply with any standards in force under section 74 of the Act.

The Standard imposes specific requirements in relation to matters dealt with in subsection 51(2) of the Act. The precise nature of the relationship between these specific requirements and subsection 51(2) is explained below under the heading ‘Notes on the instrument’.

Giving of information and assistance to the Ombudsman—paragraph 74(1)(d) of the Act

Section 76 of the Act imposes an annual reporting obligation on the Ombudsman in relation to the operation of the Act.  

The Ombudsman’s annual report must contain a number of things, including statements regarding the number of public interest disclosures received by agencies during the relevant financial year, the number of disclosure investigations conducted by agencies during that year, and the number and nature of complaints received by the Ombudsman during that year about the conduct of agencies in relation to public interest disclosures.

Subsection 76(3) of the Act requires principal officers of agencies to give the Ombudsman such information and assistance as the Ombudsman reasonably requires in relation to the preparation of an annual report. Subsection 74(1)(d) of the Act gives the Ombudsman the power to determine a standard in relation to giving of this information and assistance, as well as the keeping of records for that particular purpose.

Consultation

Subsection 74(2) of the Act requires the Ombudsman to consult with the IGIS before determining any standards under subsection 74(1); the IGIS has been consulted in relation to the Standard for the purposes of complying with this provision.

The Ombudsman also consulted a number of agencies that will be affected by the operation of the Act (and the Standard) in relation to the content of the Standard, having regard to the general consultation requirement prescribed by section 17 of the Legislative Instruments Act 2003. These agencies included, amongst others, the Australian Public Service Commission, the Australian Federal Police, the Australian Commission for Law Enforcement Integrity, the Australian Taxation Office, the Department of Immigration and Border Protection, the Department of Defence, the Department of Foreign Affairs and the Department of the Prime Minister and Cabinet.

Regulatory impact

The Office of Best Practice Regulation has advised the Ombudsman that as the determination of the Standard will not have a regulatory impact on business or the not-for-profit sector, no further analysis of it (in the form of a Regulation Impact Statement) will be required. 

Statement of compatibility with human rights

The Ombudsman has considered whether or not the Standard is compatible with human rights for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011. A relevant statement of compatibility is attached.

 

NOTES ON THE INSTRUMENT

Part 1—Introduction

Section 1—Name of standard

Section 1 provides that the name of the Standard is the Public Interest Disclosure Standard 2013.

Section 2—Commencement

Section 2 provides that the Standard will commence when section 74 of the Act commences.

Section 3—Authority

Section 3 identifies the legislative authority for the determination of the Standard as being section 74(1) of the Act.

Section 4—Definitions

Section 4 defines particular terms used in the Standard. 


 

Part 2—Procedures Relating to Disclosures

Section 5—Contact details of authorised officers

Section 5 requires a principal officer of an agency to provide an effective means for people to find out how they can contact authorised officers located within the principal officer’s agency, for the purposes of making a disclosure under the Act. 

While the section does not prescribe how an agency must go about doing this, the note to the section offers some suggestion. In doing so the note recognises that it may be difficult for agencies with security responsibilities (such as intelligence agencies) to identify, for potential disclosers outside of those agencies, particular individuals as authorised officers, in light of provisions such as section 41 of the Intelligence Services Act 2001 and section 92 of the Australian Security Intelligence Organisation Act 1979 (which create offences in relation to the publication of the names of staff members, employees, officers and agents of particular intelligence agencies).

Section 6—Record of allocating the handling of a disclosure

Section 6 requires that procedures established by a principal officer under subsection 59(1) of the Act must require an authorised officer to keep a written record of certain matters when he or she allocates the handling of a disclosure to one or more agencies.

A principal officer’s subsection 59(1) procedures must also require that an authorised officer inform a discloser of the matters that are mentioned in section 44 of the Act as soon as reasonably practicable, and keep appropriate records of whether the discloser was informed of the decision. If a discloser is informed, the authorised officer must keep a record of the day and time the discloser was notified, the means by which the discloser was notified and the content of the notification.

Section 7—Support for public officials

The procedures established by a principal officer under subsection 59(1) of the Act must outline any support that will be made available to public officials who make disclosures relating to the agency. In other words, if an agency makes support mechanisms (whatever those might be) available to persons who make disclosures relating to their agency—whether or not those persons belong to the agency for the purposes of the Act—the principal officer of the agency must outline what those support mechanisms are in his or her procedures under subsection 59(1).

The Ombudsman may, from time to time and in separate documentation, provide non-binding guidance on how a principal officer could support public officials who make disclosures relating to their agency.

Part 3—Conduct of investigations

Section 8—Application of Part

Section 8 provides that the Standard applies to a principal officer of an agency who is conducting an investigation of a disclosure under the Act.

However, where a principal officer is required to act in accordance with the Commonwealth Fraud Control Guidelines when investigating a disclosure, section 8 states that the Standard will only apply to the extent that it is not inconsistent with those Guidelines. In other words, the Guidelines are to be given preference when conducting an investigation of an alleged case of fraud.


 

Section 9—Initial information for disclosers

Section 9 requires a principal officer to give a discloser information about the principal officer’s powers to:

(a)    decide not to investigate the particular disclosure that has been made;

(b)   decide not to investigate the particular disclosure further (where an investigation is being conducted); or

(c)    decide to investigate the disclosure under a separate investigative power (where the principal officer’s agency is an ‘investigative agency’ under the Act).

The principal officer must ensure that the discloser is given this information within 14 days after the disclosure is allocated to the agency, where it is reasonably practicable to do so.

Section 10—Conducting an interview

Section 10 requires a principal officer to inform a person interviewed as part of an investigation of a disclosure of a number of matters, namely:

(a)    the identity and function of each individual conducting the interview;

(b)   the process of conducting an investigation;

(c)    the authority of the principal officer under the Act to conduct the investigation; and

(d)   the protections provided by section 57 of the Act.

This requirement is, however, subject to any restrictions imposed by any other law of the Commonwealth.

Subsection 10(2) requires a principal officer to ensure that:

(a)    any audio or visual recording of an interview is not made without the interviewee’s knowledge;

(b)   when an interview ends, the interviewee is given an opportunity to make a final statement or comment, or express a position; and

(c)    any final statement, comment or position by the interviewee is included in the record of the interview.

Section 11—Standard of proof

Section 11 requires the determination of any facts in dispute to be made on the balance of probabilities, meaning a fact can be taken to be proved if the principal officer is satisfied that it is more likely than not that the fact is true.

Section 12—Evidence

Section 12 requires that findings of fact made by a principal officer must be based on logically probative evidence, and that any such evidence must be relevant.

Part 4—Reports of investigations

Section 13—Report of investigation

Section 13 states that a report prepared under section 51 of the Act must, where relevant:

(a)    identify whether there have been one or more instances of disclosable conduct;

(b)   identify any regulations, rules, administrative requirements or similar matters to which the relevant disclosable conduct relates;

(c)    explain the steps taken to gather evidence; and

(d)   set out a summary of the evidence, as well as  any findings and recommendations made based on that evidence.

Matters (a) and (b) relate to paragraph 51(2)(a) of the Act: matters considered in the course of the investigation.

Matters (c) and (d) relate to both paragraphs 51(2)(a) and (c) of the Act: matters considered in the course of the investigation and any findings made by the principal officer.

Part 5—Giving of information and assistance to the Ombudsman

Section 14—Application of Part

Section 14 provides that Part 5 of the Standard applies to a principal officer of an agency in relation to the preparation, under section 76 of the Act, of an annual report by the Ombudsman.

Section 15—Information and assistance required by the Ombudsman

Section 15 provides that a principal officer of an agency must provide certain information to the Ombudsman for the purposes of preparing the Ombudsman’s annual report under the Act. This information is:

(a)    the number of public interest disclosures received by authorised officers of the agency during the relevant financial year;

(b)   the kinds of disclosable conduct to which those public interest disclosures related;

(c)    the number of disclosure investigations that the principal officer of the agency conducted during the relevant financial year;

(d)   the actions that the principal officer has taken during the relevant financial year in response to recommendations in reports relating to those disclosure investigations; and

(e)    any other information requested by the Ombudsman.

Subsection 15(2) states that a principal officer must provide this information to Ombudsman within a period of time as requested by the Ombudsman, or, alternatively, within a period of time that is otherwise agreed to by the Ombudsman. The note to the section indicates that in the case of an agency for which the IGIS is responsible (that is, an intelligence agency) the Ombudsman would make any relevant request for information through the IGIS.


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Public Interest Disclosure Standard 2013

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

This Legislative Instrument sets a number of standards in relation to specific matters covered by the Public Interest Disclosure Act 2013 (the Act). These matters are:

(a)    the procedures established by principals officers of relevant agencies for dealing with internal disclosures and possible internal disclosures made under the Act;

(b)   the conduct of investigations under the Act;

(c)    the preparation of reports of investigations conducted under the Act; and

(d)   the giving of information and assistance to the Ombudsman for the purpose of the Ombudsman’s annual reporting on the operation of the Act.

The standards are largely mechanical or procedural in nature. They address things such as what a principal officer must include in his or her procedures for dealing with internal disclosures (for example, requirements around contact with disclosers, decision-making and record-keeping), what a principal officer of an agency must do when interviewing a person during an investigation, and what details must be included in a report of an investigation that is conducted under the Act.  The standards also set out the information that principal officers must provide to the Ombudsman in order for the Ombudsman to discharge his annual reporting role under the Act (being information of a largely statistical character).

As contemplated by the Act, the standards are effectively directed at principal officers of agencies that are affected by the operation of the Act—namely, agencies that are, broadly speaking, related to or managed by the Australian Government. The standards do not impose any requirements upon individual citizens in a private capacity.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

Colin Neave

Commonwealth Ombudsman