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Public Interest Disclosures: A new Act in town
Late last year the South Australian Parliament passed the Public Interest Disclosure Act 2018 (PID Act). The PID Act has not yet commenced operation but when it does it will repeal and replace the Whistleblowers Protection Act 1993 (WP Act).
Why the change?
In October 2013 the then Attorney-General asked the Independent Commissioner Against Corruption (the Commissioner) to conduct a review of the operation and effectiveness of the WP Act.
The Commissioner undertook a detailed review that involved extensive consultation. In September 2014 the Commissioner delivered a 217 page report that made 30 recommendations.
The recommendations were considered by government and a new law was developed in the form of the Public Interest Disclosure Bill. The Bill went through a number of iterations under different governments with a final version eventually being passed and receiving assent in November 2018.
What will the new Act do?
The new PID Act removes any reference to whistleblowers and focuses instead on the disclosure of information. In short, the PID Act encourages and facilitates disclosures of certain information in the public interest by ensuring that proper procedures are in place for making and dealing with such disclosures and by providing protection for persons making such disclosures.
What type of disclosures are covered by the PID Act?
There are two types of disclosures that are covered by the PID Act. The first is a disclosure of information about substantial risks to public health or safety, or to the environment which is referred to in the PID Act as a disclosure of environmental and health information. The second is a disclosure of information about corruption, misconduct or maladministration in public administration which is referred to in the PID Act as a disclosure of public administration information.
Collectively those two types of disclosures are referred to in the PID Act as disclosures of public interest information.
The PID Act provides that if a person makes an appropriate disclosure of public interest information the person is not subject to any liability as a result of that disclosure. The PID Act also protects the identity of the person making an appropriate disclosure and makes it an offence to victimise that person.
Can anyone make an appropriate disclosure of public interest information?
Anyone can make an appropriate disclosure of environmental and health information.
However, only a public officer can make an appropriate disclosure of public administration information. The PID Act picks up the definition of public officer that appears in the Independent Commissioner Against Corruption Act 2012 (the ICAC Act). Schedule 1 of the ICAC Act contains a comprehensive list of public officers, which includes public sector employees, local government employees and elected members, police officers, judges, members of parliament and anyone contracted to perform work for a public authority or the Crown.
What is an appropriate disclosure of public interest information?
In order to qualify as an appropriate disclosure of public interest information the person making the disclosure has to make it to a relevant authority and have a certain state of mind in relation to the information.
For the purposes of the PID Act a person makes an appropriate disclosure of:
- Environmental and health information if the disclosure is made to a relevant authority and the person:
- Believes on reasonable grounds that the information is true; or
- Is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated.
- Public administration information if the disclosure is made to a relevant authority and the public officer reasonably suspects that the information raises a potential issue of corruption, misconduct or maladministration in public administration.
What is a relevant authority?
In order to qualify for the protections offered by the PID Act an appropriate disclosure of public interest information has to be made to a relevant authority.
The term relevant authority is defined in the PID Act and choosing the correct relevant authority can depend on the identity of the person or agency to whom the disclosure relates and the subject matter of the information. For example, where the information relates to a risk to the environment, the Environment Protection Authority is a relevant authority and where the information relates to an irregular or unauthorized use of public money or substantial mismanagement of public resources, the Auditor-General is a relevant authority.
Can I make an appropriate disclosure to a journalist or a member of Parliament?
The PID Act allows for appropriate disclosures of public interest information to be made to a journalist or a member of Parliament but only in certain circumstances.
Essentially those circumstances are that the person has already made an appropriate disclosure of substantially the same information to a relevant authority and made the person’s identity known to the relevant authority but has not received notification from the relevant authority within 30 days of making the disclosure of what action is being taken in relation to the information or within 90 days of making the disclosure (or longer if written notice has been given) of what the outcome of the action taken was.
Where to from here?
Preparations are underway for the commencement of the PID Act on 1 July 2019. For example, the Commissioner is currently preparing guidelines to assist the operation of the PID Act. A draft of the guidelines were circulated and made available for comment on the ICAC website. The Commissioner is now reviewing the comments received with a view to finalising the guidelines. A settled draft of the guidelines will be made available on the ICAC website within the coming weeks.
This article was published in Issue #2 - May 2019 of ICAC's Integrity Matters newsletter.