The Commonwealth Public Interest Disclosure Act 2013
(PID Act) commenced operation on 15 January 2014. The PID Act
establishes the first stand-alone whistleblower protection scheme
at a federal level and is designed to further promote integrity and
accountability of the Commonwealth public sector.
Scope of the PID Act
Like existing State based whistleblower legislation, the PID Act
encourages and facilitates the making of public interest
disclosures by Commonwealth public officials and operates to
protect those officials from adverse consequences relating to a
Under the PID Act, specific roles and powers are conferred on
the office of the Commonwealth Ombudsman and Inspector-General of
Intelligence and Security (IGIS) to ensure robust protections are
afforded to public officials who report wrongdoing in the public
sector. Importantly, protections are extended beyond employees of
the Australian Public Service (APS) to include persons with a
relevant connection to the Commonwealth public sector.
What is Disclosable Conduct?
Disclosable conduct is defined in the legislation as conduct
contravenes a law of the Commonwealth, a State or a
perverts the course of justice or amounts to corruption
amounts to wastage of public funds or property
is an abuse of public trust or the public official's
unreasonably endangers health and safety or the
constitutes misconduct relating to scientific research,
analysis or advice, or
Disclosable conduct does not include, however, conduct of
Ministers, the Speaker of the House of Representatives and/or the
President of the Senate, and cannot be used to challenge government
policy, action or expenditure.
A Significant Step Forward
The PID Act represents a significant expansion for whistleblower
protection in the Commonwealth public service. Prior to the
introduction of the PID Act, regulation of public interest
disclosures was contained in section 16 of the Public Service
Act 1999 (PS Act) and Division 2.2 of the Public Service
Regulations 1999. The PS Act limited protection to APS
employees in respect of breaches (or alleged breaches) of the Code
of Conduct. Disclosures made under the PS Act could be made to an
Agency Head, the Australian Public Service Commissioner or the
Merit Protection Commissioner.
Under the PID Act, a disclosure may be made internally or
externally, to either an authorised internal recipient (ie the
'principal officer' of an Agency), or to a supervisor of
the discloser. A disclosure can also in certain circumstances, be
made to a lawyer or to any person other than a foreign public
The PID Act sets out strict requirements on how agencies are to
allocate the handling of disclosures, when a disclosure must be
investigated and by whom (ie whether the investigation is to be
carried out by the principal officer, the Ombudsman, or the IGIS).
Investigations of a disclosure must be completed within 90 days
after the disclosure has been made.
Interaction With the Fair Work Act 2009 and Other Laws
The PID Act contains an additional level of protection, being
characterised as a 'workplace law' within the meaning of
the Fair Work Act 2009. The right to make a public
interest disclosure is therefore now a workplace right for
employees, in respect of which employees are protected from adverse
The PID Act also has extraterritorial application, covering
qualifying disclosures relating to conduct by Australian public
agencies or officials where that conduct occurs outside Australia
and contravenes a foreign law applicable to that agency or official
and there is a corresponding Australian law in force.
Implications for Government Agencies
The PID Act creates a far more complex regime for disclosures
than previously existed. It is important therefore to educate staff
on the purpose of the legislation and in particular those officers
to whom a public interest disclosure is likely to be made. This
includes Agency Heads and those with delegable authority, managers
and human resource teams, to ensure the handling of a disclosure is
in accordance with legislative requirements.
Clearly, agencies will need to review existing policies or
develop a new policy if they have not already done so. This policy
should, among other things, identify what is disclosable conduct,
how a disclosure can be made and what the implications are for
If a public interest disclosure concerns the conduct of APS
employees and is also capable of being investigated as a suspected
breach of the APS Code of Conduct, an agency may have two courses
of action available. Implementing the most correct course of action
requires a comprehensive understanding of the PID Act regime, with
any determination not to investigate under the PID Act supported by
sound reasons for the decision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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