Public Interest Disclosure Standard 2013

made under section 74 of the

Public Interest Disclosure Act 2013

Compilation No. 2

Compilation date: 1 July 2023

Includes amendments up to: F2023L00859

Registered: 1 August 2023

About this compilation

This compilation

This is a compilation of the Public Interest Disclosure Standard 2013 that shows the text of the law as amended and in force on 1 July 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Introduction

1 Name

3 Authority

4 Definitions

Part 2—Procedures Relating to Disclosures

5 Contact details of authorised officers

6 Records of allocation and non‑allocation of disclosures

6A Records of notice of allocation decisions

7 Support for public officials

Part 3—Conduct of disclosure investigations under Division 2 of Part 3 of the Act

8 Application of Part

9 Initial information for disclosers

10 Conducting an interview

11 Standard of proof

12 Evidence

Part 4—Reports of Investigations

13 Report of investigation

Part 5—Information and assistance for Ombudsman reports

14 Application of Part—reports and periods

15 Information to be given to the Ombudsman by principal officers

Part 6—Transitional provisions

16 Application of amendments made by the Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014

17 Application of amendments made by the Public Interest Disclosure Amendment (Review) Standard 2023

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Part 1—Introduction

1  Name

  This instrument is the Public Interest Disclosure Standard 2013.

3  Authority

  This instrument is made under subsection 74(1) of the Public Interest Disclosure Act 2013.

4  Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) another law or power;

(b) disclosure investigation;

(c) IGIS (short for Inspector‑General of Intelligence and Security);

(d) investigative agency;

(e) stop action direction under the NACC Act (NACC is short for National Anti‑Corruption Commission Act 2022);

(f) separate investigative power.

  In this instrument:

Act means the Public Interest Disclosure Act 2013.

Part 2—Procedures Relating to Disclosures

Note: See paragraph 74(1)(a) of the Act.

5  Contact details of authorised officers

  The principal officer of an agency must ensure that the agency provides an effective means for potential disclosers to find out how to contact authorised officers.

Note 1: The means for contacting authorised officers of the agency should be effective for enabling both current and former officials of the agency to find out how to contact authorised officers of the agency.

Note 2: For further guidance about implementing the requirement in this section, see the Office of the Commonwealth Ombudsman’s Agency Guide to the Public Interest Disclosure Act 2013. In 2023, the latest edition of the Agency Guide could be accessed at www.ombudsman.gov.au.

6  Records of allocation and non‑allocation of disclosures

  The procedures established by a principal officer of an agency under subsection 59(3) of the Act must require that when a decision is made, or a circumstance arises, that is mentioned in column 1 of the following table, an appropriate written record is kept of the matters mentioned in column 2 of the table.

Note 1: This table relates to the reallocation of disclosures under section 45 of the Act in the same way as it applies to the allocation of disclosures under section 43 of the Act (see paragraph 43(2)(b) and subsection 45(2) of the Act).

Note 2: For stop action directions under the NACC Act, see subsection 43(12) of the Act.

6A  Records of notice of allocation decisions

Notices to which this section applies

 (1) This section applies if any of the following notices relating to the allocation of a disclosure are given in relation to an agency (the relevant agency):

 (a) a notice by an authorised officer of the relevant agency under section 44 of the Act of a decision to allocate a disclosure to one or more agencies;

 (b) a notice by an authorised officer of the relevant agency under section 44A of the Act of a decision not to allocate a disclosure to any agency;

 (c) a notice under section 44B of the Act of a stop action direction under the NACC Act preventing an authorised officer of the relevant agency from allocating some or all of a disclosure under section 43 of the Act.

Records to be kept

 (2) The procedures established by the principal officer of the relevant agency under subsection 59(3) of the Act must require that an appropriate written record is kept of the following matters:

 (a) whether the notice (or a copy of the notice) was given to the discloser, and if not, why not;

 (b) if the notice (or a copy of the notice) was given to the discloser, the following matters:

 (i) the day and time the notice (or copy) was given to the discloser;

 (ii) the means by which the notice (or copy) was given to the discloser;

 (iii) the matters included in the notice.

 (3) In the case of a notice of a stop‑action direction, the written record must also indicate whether the principal officer of the relevant agency considers that it is reasonably practicable or appropriate for the discloser to be given a copy of the notice.

7  Support for public officials

  The procedures established by a principal officer under subsection 59(3) of the Act must outline any support that will be made available to public officials who make disclosures relating to the agency.

Part 3—Conduct of disclosure investigations under Division 2 of Part 3 of the Act

Note: See paragraph 74(1)(b) of the Act.

8  Application of Part

 (1) This Part applies to a principal officer of an agency who is conducting a disclosure investigation under Division 2 of Part 3 of the Act.

 (2) Despite subsection (1), if a principal officer is required, when conducting the disclosure investigation, to act in accordance with any rules relating to fraud that are made for the purposes of the Public Governance, Performance and Accountability Act 2013, this instrument will apply only to the extent that it is not inconsistent with those rules.

Note 1: Subsection 53(4) of the Act requires a principal officer to act in accordance with any rules relating to fraud that are made for the purposes of the Public Governance, Performance and Accountability Act 2013 to the extent that a disclosure investigation under Division 2 of Part 3 of the Act relates to one or more instances of fraud.

Note 2: This Part does not apply in relation to a disclosure investigation by an investigative agency under a separate investigative power (see the definition of disclosure investigation in section 8 of the Act).

Note 3: The principal officer must comply with this instrument and all other applicable standards determined by the Ombudsman: see subsection 53(3) of the Act.

9  Initial information for disclosers

 (1) The principal officer must ensure that a discloser is given information about the principal officer’s powers to:

 (a) decide not to investigate the disclosure; or

 (b) decide not to investigate the disclosure further; or

 (c) decide to investigate the disclosure under a separate investigative power; or

 (d) decide to investigate the disclosure under another law or power.

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

10  Conducting an interview

 (1) Subject to restrictions imposed by any other law of the Commonwealth, the principal officer must ensure that, if a person is interviewed as part of the investigation of a disclosure, the interviewee is informed of the following:

 (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;

 (d) the protections provided by Part 2 of the Act.

 (2) The principal officer must ensure that:

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

 (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.

11  Standard of proof

  The principal officer must ensure that a disclosure is investigated on the basis that a decision whether evidence is sufficient to prove a fact must be determined on the balance of probabilities.

Note: This is the standard applied in civil proceedings. Summarised broadly, a fact is taken to have been proved on the balance of probabilities if the principal officer is satisfied it is more likely than not that the fact is true.

12  Evidence

 (1) The principal officer must ensure that a finding of fact is based on logically probative evidence.

Note: Summarised broadly, this is material that tends logically to prove the existence or non‑existence of a fact.

 (2) The principal officer must also ensure that the evidence relied on in an investigation is relevant.

Note: Summarised broadly, this is evidence that:

(a) is of consequence to a matter under investigation; and

(b) makes the existence of a fact more probable or less probable than it would be without the evidence.

Part 4—Reports of Investigations

Note: See paragraph 74(1)(c) of the Act.

13  Report of investigation

  A report under section 51 of the Act must, where relevant:

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

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

 (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.

Part 5—Information and assistance for Ombudsman reports

Note: See paragraph 74(1)(d).

14  Application of Part—reports and periods

  This Part applies to an agency in relation to the preparation of the following reports (each of which is a relevant report):

 (a) an annual report by the Ombudsman under section 76 of the Act in relation to the operation of the Act during a financial year (the period covered by that report);

 (b) a 6‑monthly report by the Ombudsman under section 76A of the Act in relation to the operation of the Act during the period from 1 July to 31 December (the period covered by that report) in a financial year.

Note: The principal officer of each agency is required to give the Ombudsman such information and assistance as the Ombudsman reasonably requires in relation to the preparation of annual reports and 6‑monthly reports (see subsections 76(3) and 76A(3) of the Act).

15  Information to be given to the Ombudsman by principal officers

 (1) The principal officer of the agency must provide the following information to the Ombudsman for the purpose of preparing a relevant report:

 (a) the number of public interest disclosures received by authorised officers of the agency during the period covered by the report;

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

 (c) the number of disclosures allocated to the agency during the period covered by the report;

 (d) the number of disclosure investigations that the principal officer conducted during the period covered by the report;

 (e) the time taken to conduct those investigations;

 (f) the actions that the principal officer has taken during the period covered by the report in response to recommendations in reports relating to those disclosure investigations;

 (g) any other information requested by the Ombudsman.

 (2) The principal officer must provide the information within a time requested by the Ombudsman or as otherwise agreed with the Ombudsman.

Note: In the case of an agency for which the IGIS is responsible, the Ombudsman would make any request through the IGIS.

Part 6—Transitional provisions

16  Application of amendments made by the Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014

  Despite the amendments made by Schedule 1 to the Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014 (the amendment standard), section 8 of this standard, as in force immediately before 1 July 2014, continues to apply in relation to an investigation that was not completed before that date.

17  Application of amendments made by the Public Interest Disclosure Amendment (Review) Standard 2023

Definition

 (1) In this section:

amending instrument means the Public Interest Disclosure Amendment (Review) Standard 2023.

Amendments of Part 2—procedures relating to disclosures

 (2) The amendments of Part 2 of this instrument made by Schedule 1 to the amending instrument apply in relation to decisions under the Act, and stop action directions under the NACC Act, made or given on or after the commencement of the amending instrument.

Repeal and substitution of Part 5—information and assistance for Ombudsman reports

 (3) Part 5 of this instrument, as substituted by Schedule 1 to the amending instrument, applies in relation to the information covered by section 15 of this instrument (as amended) based on the operation of the Act:

 (a) if this instrument commences between 1 January and 30 June in a calendar year—on and after 1 July in that year; or

 (b) if this instrument commences between 1 July and 31 December in a calendar year—on and after 1 January in the following calendar year.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history