Home page
> Archive > Public interest whistleblowing: Provisional advice for agencies
> Employment policy and advice
‹ Previous page
Last updated: 31 October 1997
Public interest whistleblowing: Provisional advice for agencies
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
This is the first in a series of provisional advices pending the completion of Parliamentary consideration of the Public Service Bill and subordinate legislation. It will be revised and recirculated when Parliament finishes its consideration.
The advice provides details of relevant provisions of the Public Service Bill 1997 and contains background information to assist Agency Heads in establishing procedures within their organisation.
What is whistleblowing?
The APS Code of Conduct establishes the standards of behaviour which are expected of all APS employees. The Code also applies to Agency Heads.
Whistleblowing refers to the reporting, in the public interest, of information which alleges a breach of the Code by an employee or employees within an agency. Once the Public Service Bill is enacted, Agency Heads will be required to establish procedures for determining whether a breach of the Code has occurred. These procedures must have due regard to procedural fairness and the requirements of the Privacy Act 1988.
The type of matters that APS employees would reasonably expect to be dealt with under procedures established by their agency to investigate whistleblowing disclosures include:
- fraud or other criminal behaviour;
- substantial waste, misuse or mismanagement of the agency's resources; or
- practices resulting in danger to public health or safety.
These are examples, and not intended to be prescriptive or all-inclusive.
Generally, disclosures which amount to complaints against a government or departmental policy, or complaints or grievances seeking review of an administrative decision, would not be dealt with under the procedures.
What is the relevant legislation?
The Public Service Bill 1997 provides a legislative basis for APS employees to raise allegations that the Code of Conduct has been breached. The Bill sets out the roles and responsibilities of Agency Heads and the Public Service Commissioner where employees raise such allegations.
Investigation
Clause 15(3) of the Public Service Bill 1997 provides that:
An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct. The procedures must have due regard to procedural fairness.
Protections
Clause 16 of the Public Service Bill 1997 provides that:
A person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct to:
(a) the Commissioner or a person authorised for the purposes of this section by the Commissioner; or
(b) an Agency Head or a person authorised for the purposes of this section by an Agency Head.
Paragraph 170CK (2)(e) of the Workplace Relations Act 1996 provides that an employee's employment must not be terminated for:
the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
There is a similar protection contained in the Occupational Health and Safety (Commonwealth Employment) Act 1991, in respect of employees who complain about a matter concerning the health, safety or welfare of employees at work (section 76).
Defamation
The Bill provides no specific protection relating to liability for defamation in respect of disclosures made under whistleblowing provisions. Common law protection applies, as modified by State or Territory legislation where applicable. Generally speaking, the common law protection is more limited than any statutory modification. At common law, the defence of qualified privilege would be available to a whistleblower who was sued for defamation by a person to whom a disclosure alleging misconduct relates, provided that the statements alleged to be defamatory were made in good faith and to a person authorised to receive those statements.
Unauthorised disclosure of information
Section 70 of the Crimes Act 1914 (the Act) makes it an offence for a Commonwealth officer to publish or communicate any fact or document, which it is his or her duty not to disclose, except if the person is authorised to disclose the information.
Currently, regulation 35 of the Public Service Regulations provides the necessary authority to disclose, and the duty not to disclose official information to support the prohibition in section 70. It is proposed to enact a regulation under clause 13(13) of the Public Service Bill to provide that:
An APS employee must not publish or communicate a fact or document that comes to the employee's knowledge, or into the employee's possession, because of being an APS employee, unless the publication or communication is made:
(a) in the course of his or her duties as an APS employee; or
(b) with the express authority of the employee's Agency Head.
A public interest whistleblowing disclosure, made to a person who is authorised to receive it under procedures established by an Agency Head to investigate breaches or alleged breaches of the Code of Conduct will not, of itself, be in breach of the proposed regulation or an offence under section 70 of the Crimes Act.
It should be noted that unauthorised disclosures of information may be in breach of the proposed regulation, and thus in breach of the Code of Conduct.
Public Service Commissioner's inquiry powers
Clause 43 of the Public Service Bill 1997 provides the basis for the Public Service Commissioner's inquiry powers, and provides further that an inquiry in response to a whistleblowing allegation constitutes a special inquiry for the purposes of the legislation.
What is the role of Agency Heads?
As currently drafted, the Commissioner's Direction in relation to Public Interest Whistleblowing Disclosures requires an Agency Head to have in place procedures which:
- provide that Agency employees may report breaches (or alleged breaches) of the Code of Conduct to the Agency Head (or person authorised by the Agency Head for the purposes of section 16 of the Act);
- provide that, if a report relates to an issue that the Agency employee concerned considers would be inappropriate to report to the Agency Head, the employee may make the report to the Commissioner (or person authorised by the Commissioner for the purposes of section 16 of the Act);
- ensure that all reported breaches (or alleged breaches) of the Code made by Agency employees are investigated, unless the Agency Head or Commissioner considers that a particular report is frivolous or vexatious;
- provide information about the protection available to persons making reports under the Act;
- enable Agency employees who are not satisfied with the outcome of an investigation by the Agency to refer the issue to the Commissioner (or person authorised by the Commissioner for the purposes of section 16 of the Act);
- ensure that the findings of an investigation are dealt with as soon as practicable.
Whistleblowing allegations should be treated as serious attempts to bring to light fraud or wrongdoing in an agency. Information obtained in this way can play an important part in maintaining the integrity of an agency's financial and human resource management systems.
Some agencies, for example, the Department of Defence, already have procedures in place to investigate whistleblowing allegations, which may act as models for other agencies.
How should Agency Heads treat anonymous disclosures?
An anonymous disclosure, supported by sufficient evidence to justify an investigation proceeding, should be dealt with under the procedures established by the Agency Head to investigate alleged breaches of the Code of Conduct.
What should Agency Heads do to protect whistleblowers from reprisals?
Clause 16 of the Bill prohibits any form of victimisation or discrimination against an employee who has made a whistleblowing disclosure to an agency head or the Public Service Commissioner (or anyone authorised by them to receive the disclosure).
Discrimination, in this context, would cover a situation where a person who has made a whistleblowing disclosure is subject to unfair treatment, harassment or retaliatory action as a result of having made that disclosure.
This means that mechanisms must be in place to investigate any allegations of victimisation or discrimination on these grounds. Such allegations should be handled in accordance with procedures established by agencies to investigate alleged breaches of the Code of Conduct.
As the Bill prohibits victimisation and discrimination against persons performing functions 'in or for an Agency', contractors, as well as employees, are prohibited from taking retaliatory action against whistleblowers. Agency Heads will need to advise potential contractors of this obligation and should include appropriate clauses in the contract, relating to the expected standard of conduct and the consequences of not meeting those standards.
What is the role of the Public Service Commissioner?
In most cases disclosures should be made and investigated within the agency concerned. Where the whistleblower is not satisfied with the findings of an agency-based investigation, he or she has the option of taking the matter to the Public Service Commissioner, or a person authorised by the Commissioner.
An employee may make a disclosure directly to the Public Service Commissioner, or a person authorised by the Commissioner, where the person making the disclosure considers the matter to be of such sensitivity that he or she feels unable or unwilling to report it within the agency.
The Commissioner may reject the matter as being vexatious or frivolous, in which case he or she will advise the whistleblower accordingly. In other cases, after consultation with the whistleblower, the Commissioner may decide to refer the matter to the agency. Otherwise, she or he will investigate the matter by whatever process is appropriate for that case.
As provided by the Bill (s.43(1)(b)) the Commissioner's investigation of whistleblowing disclosures is a special inquiry. This means that there is the capacity for the Commissioner to report the matter to the Minister Assisting the Prime Minister for the Public Service and the Parliament, including in circumstances where an agency fails to deal with the findings as soon as practicable.
What is the Role of the Inspector-General of Intelligence and Security?
The Inspector-General of Intelligence and Security is able to investigate complaints from employees of the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Signals Directorate (DSD), Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA) about corrupt or unethical behaviour within those organisations.
Can APS employees still make complaints to the Ombudsman?
The new provisions relating to APS whistleblowing do not affect the existing right of APS employees to make a complaint to the Commonwealth Ombudsman about the actions and decisions of Commonwealth bodies. However, the Ombudsman is unable to investigate complaints about politics, private individuals or companies, decisions of courts or tribunals, employment-related matters (except in certain cases in the Australian Defence Force), actions of State or local governments, actions of government ministers, and actions of some government business enterprises. These exclusions remain unchanged.
For further information about developing procedures relating to public interest whistleblowing contact the PSMPC Helpline on (02) 6202 3859
