Receiving, assessing and investigating a disclosure
Public bodies need to ensure they appropriately assess serious complaints from staff and contractors to determine if the Public Interest Disclosures Act 2002 (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; and
- breaches of professional codes of conduct.
A disclosure can only be about serious or significant 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. The threshold requirements include that it:
- be made to the correct entity;
- be made by a public officer or a contractor;
- relate to the conduct of a public officer or a public body;
- be about conduct that could fall within the definition of improper conduct; and
- be about conduct which occurred on or after 1 January 2001.
This is a deliberately low threshold to encourage public officers to come forward to report concerns about major wrongdoing and be protected under the Act.
If all of the above points have been satisfied, public bodies need to notify the discloser 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.
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 entity. 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; and
- a councillor or the Commissioner of Police needs to be made to the Ombudsman.
A public body cannot investigate itself, only its staff, so, if the disclosure is about a public body, the discloser 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 or significant improper conduct. Only the Ombudsman or the Integrity Commission can make this assessment, however, so you should refer them to either of these offices.
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.
If the conduct appears to be criminal, contact Tasmania Police or the Ombudsman for advice.
It is an offence under the Act to take reprisal action against someone for making a protected disclosure. It may eventuate that the disclosure does not meet the higher threshold 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 non-exhaustive list of considerations to take into account in making this assessment, such as:
- whether it demonstrates a course of conduct;
- the seniority of the person; and
- the harm or potential harm associated with the conduct or misconduct.
Notification of the Ombudsman and discloser
Public bodies need to notify the Ombudsman and the discloser 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 is required to review this decision. If an anonymous discloser cannot be contacted, the notification requirements obviously do not apply.
If a public body determines that the protected disclosure is a public interest disclosure it has a duty under the Act to investigate it.
Section 64 sets out exceptions to this duty, for example:
- the discloser knew for more than a year about the improper conduct but has not adequately explained the delay in making the disclosure; and
- the content of the disclosure has already been adequately dealt with by the Ombudsman or certain other bodies.
If it is decided not to investigate, the Ombudsman and discloser 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 your procedures.
Relevantly, the investigation should be concluded within six months. The Ombudsman can grant an extension of time 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; and
- may take action to remedy any harm or loss arising from the conduct.
The Ombudsman and the discloser 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.