Public interest disclosure procedures

2.1 Purpose

The Public Interest Disclosure Act 2013 (Cth) (‘PID Act’) establishes a framework for the making of disclosures in relation to serious inappropriate behaviour (such as fraud or maladministration) by public officials.

Individuals who make public interest disclosures in accordance with the PID Act are entitled to a number of protections related to the making of the disclosure (for example, an employee’s employment cannot be terminated simply because they make a public interest disclosure). The PID Act includes strict requirements regarding the confidentiality of public interest disclosures. Breaching the confidentiality requirements or taking certain action against an individual because of a public interest disclosure may be a criminal offence for which a term of imprisonment can be imposed.

The PID Act broadly sets out how disclosures should be made, who they should be made to and what types of information will constitute a disclosure. The procedures set out in part 3 of this document constitute the National Museum of Australia’s (‘the Museum’s’) procedures for facilitating and dealing with public interest disclosures for the purposes of section 59(1) of the PID Act. An individual who does not validly make a public interest disclosure will not be entitled to the protections set out in the PID Act, nor will the confidentiality provisions apply.

The Museum is committed to the highest standards of ethical and accountable conduct. The Museum encourages the reporting of wrongdoing under the PID Act, and will act on disclosures where appropriate and protect disclosers from any reprisals or threats of reprisals as a result of making a disclosure.

The operation of these procedures will be reviewed regularly to ensure their continued effectiveness.

In these procedures, all references to the Director include references to their delegate.

2.2 Background — what are public interest disclosures?

It is important to note that not all disclosures of information that might be made to the Museum will be a ‘public interest disclosure’ for the purposes of the PID Act (‘a PID’). A disclosure of information will only be a PID to which these procedures relate if it meets the following requirements:

1. it is made by a public official or a person who has been a public official [1]
2. 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’ as defined by the PID Act [2]
3. the disclosure is made to an appropriate person.[3]

An overview of these key requirements, prepared by the Commonwealth Ombudsman, is set out at paragraph 2.3 below.

Only if each of the above requirements has been met will the disclosure be covered by the PID Act and the discloser have the benefit of the protections that it confers. Accordingly, it is important that persons contemplating making a disclosure of information carefully review the contents of the PID Act and seek legal advice where appropriate in order to determine whether the disclosure can be made in a way that attracts the protections of the PID Act.

Summaries of the rights and responsibilities of a discloser and a person who is the subject of a disclosure under this procedure are set out at Attachment A and Attachment B and respectively.

Further guidance material can also be obtained from Commonwealth Ombdusman website: https://www.ombudsman.gov.au/

2.3 Overview of key requirements for a PID

Extracts from the Commonwealth Ombudsman’s Agency Guide to the Public Disclosure Act 2013

Who can make a public interest disclosure?

A person must be a current or former ‘public official’, as defined in section 69 of the PID Act, to make a public interest disclosure. This is a broad term which includes a Commonwealth public servant, member of the Defence Force, appointee of the Australian Federal Police, Parliamentary Service employee, director or staff member of a Commonwealth company, statutory office holder or other person who exercises powers under a Commonwealth law. Individuals and organisations that provide goods or services under a Commonwealth contract (defined in section 30(3)) and their officers or employees are also included. This includes subcontractors who are responsible for providing goods or services for the purposes of the Commonwealth contract (section 30(2)).

What can be disclosed?

A public official can disclose information that they believe, on reasonable grounds, tends to show ‘disclosable conduct’. Disclosable conduct is conduct by:

• an agency
• a public official in connection with their position
• a contracted Commonwealth service provider in connection with entering into or giving effect to the contract

if that conduct:

• contravenes a Commonwealth, State or Territory law
• in a foreign country, contravenes a foreign law that applies to the agency, official or service provider
• perverts the course of justice
• is corrupt
• constitutes maladministration, including conduct that is based on improper motives or is unreasonable, unjust, oppressive or negligent
• is an abuse of public trust
• involves fabrication, falsification, plagiarism or deception relating to scientific research, or other misconduct in relation to scientific research, analysis or advice
• results in wastage of public money or public property
• unreasonably endangers health and safety
• endangers the environment
• is prescribed by the PID rules (section 29(1)).

Without limiting any of those grounds, disclosable conduct also includes conduct by a public official that involves, or is engaged in for the purposes of, abusing their position as a public official, and conduct that could give reasonable grounds for disciplinary action against the public official (section 29(2)).

What is not disclosable conduct?

It is not disclosable conduct just because a person disagrees with:

• a government policy or proposed policy
• action or proposed action by a minister, the Speaker of the House of Representatives or the President of the Senate
• expenditure or proposed expenditure related to such policy or action (section 31).

Disclosable conduct also does not include judicial conduct, that is, the conduct of judicial officers, the judicial functions of court staff, tribunal staff or tribunal members, or any other conduct related to a court or tribunal unless it is of an administrative nature and does not relate to matters before the court or tribunal (section 32).

The conduct of members of Parliament is not covered by the PID Act. However, the departments of the Parliament and their employees are covered.

Disclosable conduct also does not include the proper performance of the functions and proper exercise of the powers of an intelligence agency or its officials (section 33).

A disclosure must be made to an appropriate person in order to gain the protections available under the PID Act (section 26). The PID Act focuses on the reporting and investigating of wrongdoing within government, but allows for reporting outside government in specified circumstances.

Making an internal disclosure

Public officials can report suspected wrongdoing either to their current supervisor (defined in section 8 to mean someone who supervises or manages them) in an agency, or to an authorised officer of their agency or the agency to which they previously belonged.

Authorised officers are the principal officer (that is, the agency head) and officers that the principal officer appoints under the PID Act (section 36).

Making a disclosure internally gives the agency the chance to investigate the matter and remove any danger or correct any wrong practices as quickly as possible.

A public official must use one of the proper avenues to gain the protections available under the PID Act. This means that a public official will not receive these protections if they give the information to someone outside government such as a journalist or union representative, unless the conditions for an external or emergency disclosure are met. They may be in breach of their duty to maintain appropriate confidentiality in relation to official information they have gained in the course of their work, or be subject to other civil, criminal or disciplinary action.

3.1 Authorised officers

The Museum maintains a list of ‘authorised officers’ for the purposes of the PID Act who have been appointed by the Director. A PID can be made to an authorised officer of the Museum if the PID relates to the Museum or the discloser belongs, or last belonged to, the Museum.

The list of authorised officers can be accessed at: https://www.nma.gov.au/about/contact-us

3.2 Disclosure to a supervisor

If a public official discloses information to a supervisor and the supervisor has reasonable grounds to believe that the information concerns, or could concern, disclosable conduct, the supervisor must give the information to an authorised officer of the Museum as soon as reasonably practicable.

3.3 Protecting confidentiality

A person who receives a PID (the supervisor, the authorised officer or the Director) will take all reasonable steps to protect the identity of a public official who has made a PID from the time the disclosure is made.

Only individuals directly involved in dealing with the PID (such as the authorised officer and the Director) may be advised of the details of the PID. These individuals must not disclose the identity of the discloser or any information which is likely to reveal the identity of the discloser without the consent of the discloser.

It is an offence for a public official to disclose information that is likely to enable the identification of a person as a person who has made a public interest disclosure other than in accordance with the PID Act.

Similarly, if a person discloses information to another person or uses information otherwise than in accordance with the PID Act, the person commits an offence if the information was obtained by the person:

• in the course of conducting a disclosure investigation; or
• in connection with the performance of a function or the exercise of a power by the person under the PID Act.

Identifying information about a discloser will not be disclosed to a court or tribunal except where necessary to give effect to the PID Act.

3.4 Initial consideration and allocation

a. Step 1: Consider whether a disclosure meets the requirements for a PID

When an authorised officer (AO) receives a disclosure of information, they will consider the information disclosed and determine whether there are reasonable grounds on which the disclosure could be considered to be an internal disclosure made in accordance with the PID Act.

If the authorised officer is so satisfied:

• they will allocate the disclosure to one or more agencies for further handling and investigation in accordance with the process outlined below at Step 2.

If the authorised officer is not so satisfied:

• the disclosure will not be allocated and:
• if contacting the discloser is reasonably practicable, the authorised officer must inform the discloser in writing of:
• the reasons why the disclosure will not be allocated to an agency; and
• any other course of action that might be available to the discloser under other laws of the Commonwealth; and
• if the disclosure relates to conduct that may need to be addressed under the Museum’s:
  • Fraud control plan
  • Fraud control policy
  • Code of conduct guidelines and procedures
  • Work Health and Safety Management System
  • any other of the Museum’s policies or procedures

the authorised officer may refer the matter to be dealt with in accordance with the relevant policy or procedure.

b. Step 2: Allocate the disclosure

The authorised officer will use their best endeavours to decide the allocation within 14 days after the disclosure is made.

In deciding the agency or agencies to which a disclosure will be allocated, the authorised officer will have regard to:

• the principle that an agency — other than the Ombudsman, the Inspector-General of Intelligence and Security (IGIS) or an investigative agency prescribed by the Public Interest Disclosure Rules[4] — should only deal with disclosures that relate to that agency
• such other matters (if any) as the authorised officer considers relevant.

In addition, if the authorised officer is contemplating allocating the disclosure to the Ombudsman, the IGIS or an investigative agency that has been prescribed by the Public Interest Disclosure Rules, the authorised officer must have regard to additional matters set out in the PID Act.[5]

The authorised officer must not allocate a disclosure to another agency unless an authorised officer of that agency has consented to the allocation.

c. Step 3: Inform relevant persons of the allocation

Informing the receiving agency

When the authorised officer allocates the handling of a disclosure to an agency, the authorised officer will inform the principal officer of that agency of:

• the allocation to the agency
• the information that was disclosed to the authorised officer
• the suspected disclosable conduct
• if the discloser’s name and contact details are known to the authorised officer, and the discloser consents to the principal officer being informed — the discloser’s name and contact details.

Informing the discloser

If contacting the discloser is reasonably practicable, as soon as reasonably practicable after the allocation has occurred, the authorised officer will also inform the discloser in writing of the allocation and of the information that has been provided to the principal officer of that agency.

Informing other relevant bodies

If the authorised officer allocated a disclosure to an agency, including the Museum itself, other than the Ombudsman, the IGIS or an intelligence agency, they will inform the Ombudsman of this in writing. If the disclosure is allocated to an intelligence agency, the authorised officer will inform the IGIS of this in writing.

d. Step 4: Make a record of the allocation decision

Record of decision

When an authorised officer allocates the handling of a disclosure to one or more agencies, they must keep an appropriate record of:

• the decision (including the name of each agency to which the disclosure is to be allocated)
• the reasons for the decision
• the consent provided by the authorised officer of the agency to which the allocation is made, if the allocation is made to an agency other than the Museum.

Record of communication of decision to discloser

In addition, the authorised officer must keep appropriate records of whether the discloser was informed of the allocation decision and, if so, of:

• the day and time the discloser was notified
• the means by which the discloser was notified
• the content of the notification.

These records should be kept confidential.

3.5 Risk assessment

a. Step 1: Conduct a risk assessment

When the Director or relevant AO receives a PID that has been allocated to the Museum, he or she will assess the risk that reprisals will be taken against the discloser.

In assessing the risk of reprisals, the Director or relevant AO should use the following risk matrix:

This procedure supports the following policies:

• Fraud control policy.

5.1 Coverage

This procedure is relevant to current or former ‘public officials’, as defined in section 69 of the PID Act.

5.2 Other related procedures, guidelines and plans

• Work Health and Safety Management System
• Fraud control plan
• Code of conduct guidelines and procedures.

5.3 Monitoring

This procedure will be reviewed in the event of changes to the Public Interest Disclosure Act 2013 or if there are changes to the advice from the Commonwealth Ombudsman.

Attachment A — Rights and responsibilities of disclosers

Attachment B — Rights and responsibilities of persons who are the subject of a PID

¹ This includes a current or former APS employee or contracted service provider: see section 69 of the PID Act.

² What does and does not constitute disclosable conduct is defined in sections 29-33 of the PID Act.

³ Generally, to constitute a PID, the disclosure must first be made to an ‘authorised internal recipient’ or a supervisor of the discloser as defined in sections 34 and 8 (respectively) of the PID Act. In some limited circumstances, a disclosure can be made to an external party. The PID Act sets out strict requirements which must be met for such external disclosures to be afforded the protections contained in the PID Act: see section 26 of the PID Act.

⁴ At the time of publication of the most recent version of this policy, no Public Interest Disclosure Rules had been published.

⁵ See section 44(3)(a)(ii)-(iv) of the PID Act.

Rights

A discloser has a right to the protections set out in the PID Act, including protection from reprisals, from civil and criminal liability, and from the disclosure of their identity where the disclosure is made anonymously. However, a disclosure does not protect the discloser from the consequences of their own wrongdoing, including where they have been involved in the misconduct that they are reporting.

During the PID Act process, a discloser will be:

• advised of the following:
  • any decision that a disclosure is not a disclosure within the meaning of the PID Act
  • the allocation of their disclosure
  • the decision of the Museum to investigate their disclosure
  • the estimated duration of the investigation into their disclosure
  • if the Museum decides not to investigate their disclosure, the reasons for that decision and any action that may be available to the discloser under other Commonwealth laws
  • if an investigation is conducted under the PID Act and an extension of time is granted by the Ombudsman or IGIS, the progress of the investigation
  • the outcome of the investigation (including provision of a copy of the investigation report except to the extent that it would be exempt for the purposes of Part IV of the Freedom of Information Act 1982, would require a national security or other protective security clearance, contains intelligence information or contravenes a designated publication restriction as defined in the PID Act).
• given support in accordance with paragraph 3.6 of the procedures.

able to seek assistance from the Ombudsman in relation to the operation of the PID Act.

Responsibilities

A discloser must:

• comply with the PID Act requirements and the procedures set out in this document when making a PID
• use their best endeavours to assist the principal officer of any agency in the conduct of an investigation
• use their best endeavours to assist the Ombudsman in the performance of the Ombudsman’s functions under the PID Act
• use their best endeavours to assist the IGIS in the performance of the IGIS’s functions under the PID Act
• report to the Director any detriment the discloser believes they have been subjected to as a result of making the disclosure.

Rights

A Museum employee who is the subject of a disclosure will be:

• given support in accordance with paragraph 3.7 of the procedures
• able to seek assistance from the Ombudsman in relation to the operation of the PID Act.

Responsibilities

A Museum employee who is the subject of a disclosure must:

• use their best endeavours to assist the principal officer of any agency in the conduct of an investigation
• use their best endeavours to assist the Ombudsman in the performance of the Ombudsman’s functions under the PID Act
• use their best endeavours to assist the IGIS in the performance of the IGIS’s functions under the PID Act
• comply with action taken by the Museum to address risks or concerns in relation to the PID.

An employee who is the subject of a disclosure should also be aware that:

• the outcome of an investigation under the procedures set out in this document may result in another, different investigation (for example, a code of conduct investigation) taking place the Museum may decide to take action in relation to the employee, for example temporarily transferring the employee to another work area without the employee’s consent, in order to discharge its obligations including under the PID Act and work health and safety legislation.

Approved by Director 21 February 2020