Section 1 - Introduction
Based on the Public Interest Disclosures Act 2002, these procedures are to encourage and facilitate the making of disclosures of improper conduct (or detrimental action) by public officers and public bodies. The Act and theses procedures provides protection from reprisals to persons who make disclosures in accordance with the Act, and establishes a system for the matters disclosed to be properly investigated and for rectifying action to be taken.
1.1 Statement of support
The Department of Justice (the Department) is committed to the aims and objectives of the Public Interest Disclosures Act 2002. It does not tolerate improper conduct by its employees, officers or members, nor the taking of reprisals against those who come forward to disclose such conduct.
The Department recognises the value of transparency and accountability in its administrative and management practices, and supports the making of disclosures that reveal corrupt conduct, conduct involving a substantial mismanagement of public resources, or conduct involving a substantial risk to public health and safety or the environment.
The Department will take all reasonable steps to protect people who make such disclosures from any detrimental action in reprisal for making the disclosure. It will also afford natural justice to the person who is the subject of the disclosure.
1.2. Purpose of these procedures
These procedures establish a system for reporting disclosures of improper conduct or detrimental action by the Department or its employees. The system enables such disclosures to be made to the Secretary or to one of the nominated protected disclosure officers.
Disclosures may be made by state servants or by contractors or former contractors who have or had a contract with the Department for the supply of goods or services.
These procedures are designed to complement normal communication channels between supervisors and employees. Employees are encouraged to continue to raise appropriate matters at any time with their supervisors. As an alternative, staff may make a disclosure of improper conduct or detrimental action under the Act in accordance with these procedures.
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1.3. Objects of the Act
The Public Interest Disclosures Act 2002 commenced operation on 1 January 2004. The purpose of the Act is to encourage and facilitate the making of disclosures of improper conduct by public officers and public bodies. The Act provides protection to persons who make disclosures in accordance with the Act, and establishes a system for the matters disclosed to be investigated and rectifying action to be taken.
1.4. Definitions of key terms
Three key concepts in the reporting system are improper conduct, corrupt conduct and detrimental action. Definitions of these terms are set out below.
1.4.1 Improper conduct
A disclosure may be made about improper conduct by a public body or public official. Improper conduct means conduct that is corrupt, a substantial mismanagement of public resources, or conduct involving substantial risk to public health or safety or to the environment. The conduct must be serious enough to constitute, if proved, a criminal offence or reasonable grounds for dismissal.
Examples
To avoid closure of a town’s only industry, an environmental health officer ignores or conceals evidence of illegal dumping of waste.An agricultural officer delays or declines imposing quarantine to allow a financially distressed farmer to sell diseased stock.
A building inspector tolerates poor practices and structural defects in the work of a leading local builder.
1.4.2 Corrupt conduct
Corrupt conduct means:
- conduct of any person (whether or not a public official) that adversely affects the honest performance of a public officer’s or public body’s functions;
- the performance of a public officer’s functions dishonestly or with inappropriate partiality;
- conduct of a public officer, former public officer or a public body that amounts to a breach of public trust;
- conduct by a public officer, former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their official functions; or
- a conspiracy or an attempt to engage in the above conduct.
Examples
A public officer takes a bribe or receives a payment other than his or her wages or salary in exchange for the discharge of a public duty.A public officer favours unmeritorious applications for jobs or permits by friends and relatives.
A public officer sells confidential information.
1.4.3 Detrimental action
The Act makes it an offence for a person to take detrimental action against a person in reprisal for a protected disclosure (s.19). Detrimental action includes:
- action causing injury, loss or damage;
- intimidation or harassment; and
- discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action.
- threats of the above.
Examples
A public body refuses to appoint a person who made a disclosure and was a successful applicant to a position through a fair selection process.A public body demotes, transfers, isolates in the workplace or changes the duties of a discloser due to the making of a disclosure.
A person threatens, abuses or carries out other forms of harassment directly or indirectly against the discloser, his or her family or friends.
A public body discriminates against the discloser or his or her family and associates in subsequent applications for jobs, permits or tenders.
1.4.4 Public Officer
Public Officer is defined as an employee or officer of the State Service and those persons appointed pursuant to legislation administered by the Department of Justice (list of legislation). It includes members and chairpersons of boards, committees and commissions.
1.5. Confidentiality
The Department will take all reasonable steps to protect the identity of the discloser. Maintaining confidentiality is crucial in ensuring reprisals are not made against a discloser.
The Act requires any person who receives information due to the handling or investigation of a protected disclosure, not to disclose that information except in certain limited circumstances. Disclosure of information in breach of s.23 constitutes an offence that is punishable by a maximum fine of 60 penalty units ($6000) or six months imprisonment or both.
The circumstances in which a person may disclose information obtained about a protected disclosure include:
- where exercising the functions of the public body under the Act;
- when making a report or recommendation under the Act;
- when publishing statistics in the annual report of a public body; and
- in criminal proceedings for certain offences in the Act.
However, the Act prohibits the inclusion of particulars in any report or recommendation that is likely to lead to the identification of the discloser. The Act also prohibits the identification of the person who is the subject of the disclosure in any particulars included in an annual report.
The Department will ensure all files, whether paper or electronic, are kept securely and can only be accessed by the protected disclosure coordinator, protected disclosure officer, the investigator or welfare manager (in relation to welfare matters). All printed material will be kept in files that are clearly marked as a Public Interest Disclosures Act matter, and warn of the criminal penalties that apply to any unauthorised divulging information concerning a protected disclosure. All materials relevant to an investigation, such as tapes from interviews, will also be stored securely with the files.
Officers involved in managing a complaint will not email documents relevant to a disclosed matter and will ensure all related phone calls and meetings are conducted in private.
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