Public bodies need to ensure they assess serious complaints from staff and contractors appropriately to determine if the Public Interest Disclosures Act 2002 (Tas) (the Act) applies.
What can a disclosure be about?
It needs to be about ‘improper conduct’, which includes:
- illegal activity
- corrupt conduct
- endangering public health, safety or the environment
- misusing or wasting government funds
- maladministration
- breaches of professional codes of conduct.
A disclosure can only be about serious improper conduct. The Ombudsman has issued a guideline to assist in understanding what that means. This document is an important guide when assessing a disclosure. You can find it on the publications page of the Ombudsman Tasmania website.
Improper conduct also includes detrimental action (reprisal) by a public officer or public body against someone who makes a protected disclosure under the Act.
Is the complaint / disclosure a protected disclosure?
A disclosure is automatically protected if it complies with Part 2 of the Act. For a disclosure to be protected, it:
- must be made by a public officer or a contractor
- must be made to the correct person or organisation
- must relate to the conduct of a public officer or a public body
- must be made by a person who believes that the public officer or public body has engaged, is engaging or proposes to engage in improper conduct
- must be about conduct that could fall within the definition of improper conduct
- must be about conduct which occurred on or after 1 January 2001.
If all of the above points have been satisfied, public bodies need to notify the person who made the disclosure that their disclosure is protected.
If the type of conduct is not serious or significant, the concern should be dealt with under a public body’s existing policies or procedures.
Anonymous disclosure
A disclosure can be made anonymously. The person receiving the disclosure simply needs to be satisfied that the disclosure is being made by a public officer or contractor.
Where should the disclosure be made?
A disclosure needs to be made to the correct person or organisation. Generally a disclosure about a public officer can be made to the public body they work for but this is not always the case. Section 7 of the Act sets out in detail the persons to whom disclosures may be made. For example, a disclosure about:
- a member of the House of Assembly needs to be made to the Speaker of the House
- a councillor or the Commissioner of Police needs to be made to the Ombudsman.
A public body can only investigate its staff. It cannot investigate itself. So, if the disclosure is about a public body, the person making the disclosure should be referred to the Ombudsman or the Integrity Commission. Contractors can only make disclosures about a public body, so they should always be referred to either of these offices.
Members of the public can be treated as contractors under the Act if it is in the public interest. This may include, for example, volunteers who have evidence of serious improper conduct. Only the Ombudsman or the Integrity Commission can make the assessment that this in the public interest. So the member of the public should be referred to either of these offices.
Referrals
A protected disclosure can be referred to the Integrity Commission if the public body considers the disclosure relates to misconduct as defined in the Integrity Commission Act 2009 (Tas).
If the conduct appears to be criminal, contact Tasmania Police or the Ombudsman for advice.
Reprisal
It is an offence under the Act to take reprisal action against someone for making a protected disclosure. It may turn out that the disclosure does not meet the test of being a public interest disclosure, but the protections for coming forward still apply.
Is it a public interest disclosure?
Public bodies need to assess whether a protected disclosure is a public interest disclosure within 45 days of receiving it. Section 33 of the Act requires an assessment of whether a protected disclosure shows or tends to show that the relevant public officer has engaged, is engaging or is proposing to engage in improper conduct.
This step requires an objective assessment of the disclosure and any material provided. A mere allegation is not enough. There must be evidence, or an indication of where evidence can be found, to show or tend to show the existence of improper conduct.
The disclosure should show that the improper conduct is serious or significant. The Ombudsman’s guideline provides a list of considerations to take into account in making this assessment. These considerations include:
- whether it demonstrates a course of conduct
- the seniority of the person
- the harm or potential harm associated with the conduct.
This list is only a guide. It is not exhaustive.
Notification of the Ombudsman and discloser
Public bodies need to notify the Ombudsman and the person who made the disclosure of their decision about whether a protected disclosure is a public interest disclosure or not. This needs to be done within 14 days. If it is decided it is not a public interest disclosure, then the Ombudsman must review this decision. If a person who made a disclosure is anonymous and cannot be contacted, the requirement to notify them obviously does not apply.
Investigation
If a public body determines that the protected disclosure is a public interest disclosure, it must investigate it.
Section 64 of the Act sets out exceptions. For example:
- the person making the disclosure knew for more than a year about the improper conduct but has not adequately explained the delay in making the disclosure
- the content of the disclosure has already been adequately dealt with by the Ombudsman or certain other bodies.
If the public body decides not to investigate the disclosure, the Ombudsman and the person who made the disclosure need to be given the reasons for the decision within 14 days. The Ombudsman will review this decision.
If an investigation does occur, detailed information about the investigation process can be found in the organisation’s public interest disclosure procedures.
The investigation should be concluded within six months. The Ombudsman can grant an extension of up to six more months to complete the investigation.
Outcome of the investigation
If the investigation finds that the improper conduct occurred, the public body:
- must take all reasonable steps to prevent the conduct from continuing or occurring in the future
- may take action to remedy any harm or loss arising from the conduct.
The Ombudsman and the person who made the disclosure must be notified of the findings of the investigation. If it is found that the improper conduct occurred, they must be told what action has been taken in response.
The relevant Minister or Council will only need to be informed if it is found that the improper conduct occurred. They should be told about any steps taken to address issues arising from the improper conduct.
More information
For more information about receiving, assessing and investigating a disclosure, you can contact us or the Integrity Commission.