Australia: PID Act: Are you complying with your disclosure obligations as a supervisor?

It's been over 12 months since the Public Interest Disclosure Act 2013 (Cth) (PID Act) commenced, and agencies should be quite familiar with its requirements by now. In this article, we will explore the role of supervisors (specifically, supervisors who are not "authorised officers") under the PID Act.

Supervisors are approved recipients of internal public interest disclosures (PIDs) under s 26(1) of the PID Act. The inclusion of supervisors significantly broadens the list of persons to whom internal PIDs may be made.

There are no formal requirements for making a PID under the PID Act. Section 28 provides that a public interest disclosure may be made:

  • orally or in writing
  • anonymously, and
  • without the discloser asserting that the disclosure is made for the purposes of the PID Act.

Under s 26(1), a disclosure to a supervisor will be a PID if:

  • it is made by a person (the discloser) who is, or has been, a public official, and
  • the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.

The term "disclosable conduct" is defined broadly in s 29 as conduct:

  • engaged in by:
    • an agency
    • a public official in connection with their position as a public official, or
    • a contracted service provider for a Commonwealth contract, in connection with entering into, or giving effect to, the contract, and
  • is of a kind specified in the table in s 29(1), including conduct that:
    • contravenes a law of the Commonwealth, state or territory
    • constitutes maladministration, or
    • is an abuse of public trust.

The lack of formal requirements for making a PID (particularly the absence of a requirement for the discloser to assert they are making one) mean that a person could make a PID without the discloser or the supervisor even realising.

This is a particular issue that may cause difficulty for supervisors, who may discuss matters concerning disclosable conduct with direct reports as part of their ordinary course of work. Therefore, supervisors need to be attuned to what constitutes a PID.

If a PID is made to an agency, it must be investigated (in line with Part 3 of the PID Act).

To facilitate this, supervisors are charged with a positive duty to give information to an authorised officer of the relevant agency if:

  • a public official discloses information to the supervisor, and
  • the supervisor has reasonable grounds to believe that the information concerns, or could concern, one or more instances of disclosable conduct under s 60A.

If a supervisor has unknowingly received information concerning disclosable conduct, and does not report it to the authorised officer, the supervisor would arguably be in breach of their duty under s 60A.

The Commonwealth Ombudsman's 2013-2014 Annual Report refers to this as a problematic area, commenting:

"We understand that the main reason for the supervisor provisions was to ensure greater accessibility for public officials to make a public interest disclosure and to ensure they would receive the protections provided under the Act.
However, we do not believe the Act was intended to be an overarching mandatory reporting and investigation framework."

Under s 15AB of the Acts Interpretation Act 1901, regard may be had to extrinsic material about the reasons for including the supervisor provisions:

  • to confirm that the ordinary meaning applies, or
  • to determine the meaning, if the provisions are considered ambiguous or obscure or if the ordinary meaning leads to a result that is manifestly absurd or is unreasonable.

As the supervisor provisions are unlikely to be seen as ambiguous or obscure, extrinsic materials can only be used to infer a meaning other than the ordinary meaning if the application of the provisions leads to a manifestly absurd or unreasonable result in particular circumstances.

Otherwise, if a supervisor has "reasonable grounds" to believe that information disclosed to them by a direct report "concerns, or could concern ... disclosable conduct", the supervisor must give the information to an authorised officer of the agency and it must be investigated, or dealt with otherwise, in line with Part 3 of the PID Act.

This is an onerous duty for supervisors. To ensure supervisors comply with their statutory reporting duty, we suggest they receive training focusing on what may constitute disclosable conduct under the PID Act, so they can gauge whether information disclosed to them needs to be reported.

As a practical step, if a supervisor is unsure about whether particular information disclosed to them concerns disclosable conduct, we suggest the supervisor consider asking the discloser whether they are intending to make a disclosure under the PID Act.

The intention of the discloser is not determinative of whether a supervisor's reporting duty applies, but:

  • it might be relevant in determining whether the supervisor has "reasonable grounds" to believe that the information concerns disclosable conduct, and
  • considering whether the intentions of the discloser are consistent with the objects of the Act, which include supporting and protecting public officials who make PIDs and an interpretation that promotes the objects of the PID Act should be preferred over an interpretation that does not achieve the objects of the Act, in line with s 15AA of the Acts Interpretation Act 1901.

The PID Act is scheduled for a review that begins in January 2016, and the Ombudsman has flagged the supervisor provisions as an area for review (see p 79 of the 2013-14 Annual Report), but until the supervisor provisions are changed, supervisors will need to continue to comply with the current provisions.

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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