Understanding the Public Interest Disclosure Act 2013: The Role of Anonymous Reporting

Key takeaways

• The Public Interest Disclosure Act 2013 (Cth) encourages transparency by enabling various disclosures such as internal, external, emergency, legal practitioner, and NACC disclosures, each designed to report wrongdoing within the Commonwealth public sector.
• The PID Act provides strong protections for whistleblowers, including immunity from liability, protection against retaliation, and confidentiality of their identity, to bolster their confidence in reporting disclosable conduct.
• Whistleblower software like Elker provides the highest security encryption and anonymity to protect the identity of disclosers. Elker can be integrated into existing government agencies to establish greater trust for those coming forward.

Understanding public interest disclosures

Under the PIB Act, disclosures can be made by any person who was or is employed by the Australian Government, individuals employed by any Commonwealth companies, and statutory agencies. Additionally, members of the Parliamentary service, statutory officeholders, as well as service providers under contract to the Commonwealth are also eligible to report wrongdoing.

As an public official, you are exempt from disciplinary action for making a disclosure. Nonetheless, it's important to note that the act of disclosure does not absolve a discloser from accountability for their own conduct. Furthermore, the submission of a disclosure does not prevent reasonable management action from being taken.

Types of disclosures

The PID Act provides a comprehensive framework for reporting disclosable conduct, encompassing a variety of disclosure types. These include:

• Internal disclosures: reporting suspected misconduct within an agency or by a public official
• External disclosures: reporting disclosable conduct to an external agency or authority when an internal disclosure is insufficient
• Emergency disclosures: where the information concerns a substantial threat or imminent danger
• Legal practitioner disclosures: reporting disclosable conduct to a qualified legal practitioner
• NACC disclosures: Disclosures to the National Anti-Corruption Commission (NACC)

Internal

An internal disclosure is made within a Commonwealth agency, typically to an authorized internal recipient or supervisor. These disclosures involve information that tends to show one or more instances of disclosable conduct, such as illegal behaviour, misuse of public resources, or endangerment to health and safety.

External

External disclosures are made outside the government and can be reported to any person other than a foreign public official. They occur when an internal disclosure has not been adequately investigated, if the response to the investigation is inadequate or if the investigation has not been completed within the timeframe. External disclosures are subject to certain criteria to ensure responsible reporting and protection of sensitive information:

The disclosure is in the public interest

No more information is disclosed than is necessary

The disclosed information does not contain intelligence information or relate to an intelligence agency

Emergency

Emergency disclosures are made when the discloser believes, on reasonable grounds, that the information concerns a substantial threat or imminent danger to the health, safety, or environment of one or more persons. These may be made to any person other than a foreign public official but are subject to a number of additional criteria:

No more information is disclosed than is necessary

The disclosed information does not consist of or include intelligence information

If the reporter has not made an internal disclosure first, or if the internal investigation has not been completed, they must believe the circumstances are exceptional to justify the disclosure.

Legal practitioner

Disclosures are made to Australian legal practitioners for the purpose of obtaining legal advice or professional assistance in making or proposing to make a disclosure. These disclosures are often necessary to ensure that whistleblowers have access to legal guidance to navigate the disclosure process effectively. However, if the information has a national security or protective security classification, the legal practitioner must hold an appropriate level of security clearance.

NACC disclosure

The National Anti-Corruption Commission (NACC) is an independent body established under the National Anti-Corruption Commission Act, with the key role of receiving, investigating, and acting upon disclosures of corrupt conduct within Australian Commonwealth entities. When a disclosure is made to the NACC, it is assessed based on its severity, scope, and potential impact on public administration.

The NACC has the discretion to refer cases back to the relevant agency if it decides not to investigate a corruption issue because it’s not deemed serious or systemic enough to warrant its intervention. However, some instances where a disclosure might be made directly to the NACC, rather than internally, include situations where previous internal disclosures have not been adequately addressed, or where the whistleblower believes that the misconduct is of such gravity or urgency that it requires the immediate attention of an independent body with broader investigative powers.

In addition to its investigative responsibilities, the NACC plays a proactive role in the public sector by working with Commonwealth agencies to offer corruption prevention and education initiatives. This includes advice and guidance on best practices for integrity and research and analysis on corruption.

Identifying disclosable conduct

Disclosable conduct is defined as any behaviour or activity by a Commonwealth agency or public official that is considered inappropriate or illegal under the PID Act and thus warrants reporting. By understanding these categories, whistleblowers are better equipped to make informed decisions about reporting potential misconduct.

According to the Act, disclosable conduct includes a wide spectrum of actions, such as:

• Activities that violate any Commonwealth, State, or Territory law.
• Instances of corruption, maladministration, or a breach of public trust.
• Wasteful practices that result in the loss or misuse of public resources or property.
• Conduct that poses serious threats to the health or safety of one or more persons.
• Conduct that significantly endangers, or poses a significant risk to, the environment.
• Conduct that fabricates or falsifies scientific research or evaluation.

Typically, personal conduct in the workplace, such as bullying or harassment, does not fall under the category of disclosable conduct. Nonetheless, there are certain situations where such personal work-related conduct might be considered disclosable.

The investigation process

When a disclosure is received by an authorised officer within an agency, the officer is tasked with determining the relevant agency to handle the matter. This decision is based on the content of the disclosure, whom the disclosure concerns and whether there is a reasonable basis to proceed with an investigation. Potential agencies that may be involved include the Ombudsman or the Inspector-General of Intelligence and Security (IGIS) when the subject matter pertains to their areas of oversight.

The authorised officer is required to determine the allocation of the disclosure within 14 days of receipt. Following the allocation, the principal officer of the agency assigned to the case must conduct an investigation and compile a report detailing the findings within 90 days.

Upon completion of the investigation, the principal officer is obligated to provide written notification and a copy of the report to the following parties, when feasible:

1. The individual who made the disclosure, if it is reasonably practicable to do so.
2. The Ombudsman, except in circumstances outlined in the next point.
3. The IGIS, under the conditions that the principal officer’s agency is an intelligence agency, or if the agency is the Australian Criminal Intelligence Commission (ACIC) or the Australian Federal Police (AFP) and the report is pertinent to the agency’s intelligence functions.

Administrative support and protection

The Act provides several layers of protection to ensure the safety and well-being of whistleblowers and witnesses throughout the disclosure process. These protections include:

• Immunity from liability: Disclosers are immune from liability unless the disclosure is knowingly false or misleading.
• Confidentiality and anonymity: It is an offence to disclose the identity of an individual who makes a public interest disclosure.
• Protection against reprisals: Taking reprisal action against a person because of a public interest disclosure is an offence, which includes proposed or suspected disclosures.
• Civil remedies: The Federal Court can order civil remedies, such as compensation, injunctions, and reinstatement of employment if a reprisal is taken against a person because of a disclosure.
• Witnesses: Witnesses who assist in a PID process are not subject to any civil, criminal, or administrative liability. No contractual or other remedies may be enforced against the witness for their involvement in the PID.

What constitutes a reprisal?

A reprisal occurs when a person is victimised because it is believed they have made, may have made, propose to make, or could make a disclosure. Detriment can include actions such as dismissal, injury, adverse alteration of employment conditions, discrimination, harassment, or any other harm or damage, including to reputation or financial position.

Protecting the identity of disclosers

It is a serious offence for a public official to disclose information that could lead to the identification of a reporter or witness involved in a public interest disclosure, ensuring that the identities of those who come forward are kept confidential.

By setting these provisions, the PID Act aims to cultivate a culture where individuals feel secure in reporting misconduct, thus enhancing transparency and accountability within the Commonwealth public sector.

Importance of anonymous reporting software in the Commonwealth public sector

Anonymous reporting tools are instrumental in public interest disclosures, allowing individuals to report wrongdoing without revealing their identity. They offer a confidential channel for reporting, reducing the risk of exposure, victimisation and even persecution.

Protect the identity of disclosers

An anonymous reporting tool, like Elker, includes secure features designed to protect whistleblowers and safeguard the disclosure. End-to-end encryption ensures that reports are only readable by the intended recipients, safeguarding the whistleblower’s information from access by service providers and unauthorised parties.

These tools take additional steps for an individual to remain anonymous by:

• Stripping away metadata from uploaded files
• Offering in-app guidance to whistleblowers, regarding their anonymity
• Adhering to strict data retention policies
• Collecting only the necessary data to fulfil the disclosure
• Including redaction capabilities that remove identity-revealing information

Encourage reporting

There are significant barriers to making critical disclosures. These barriers have been exacerbated by recent, high-profile cases where whistleblowers have faced victimisation and prosecution. One instance is the case of Richard Boyle, who, in 2018, disclosed unethical practices within the Australian Tax Office. Boyle was victimised after bringing to light concerns about the ATO's aggressive debt collection methods. Yet, despite the protective intent of legislation like the Public Interest Disclosure Act, he was prosecuted for allegedly pursuing unlawful investigative methods.

As a result, there is a justified fear of disclosing serious wrongdoing in the public sector. Anonymous reporting tools help by ensuring the highest standards in security and encryption, guiding the whistleblower through the correct procedures, and safeguarding their anonymity. Establishing this trust is critical to encourage whistleblowers to disclose information about suspected wrongdoing without fear of personal or professional repercussions.