Part 4: Public Interest Disclosures
Part 4: Public Interest Disclosure Scheme
Public Interest Disclosure Scheme
This part comprises our annual report on the operation of the Public Interest Disclosure Act 2013 (PID Act), as required by s 76 of the PID Act.
The Office oversees the operation of the PID scheme (the scheme), established under the PID Act. The scheme promotes the integrity of the Commonwealth public sector by providing for the reporting and investigation of wrongdoing and the protection of whistle-blowers.
The Office has 3 primary functions under the scheme:
- allocation of disclosures and investigation of complaints
- delivery of educational and awareness programs
- annual reporting on the scheme’s operation.
The Inspector-General of Intelligence and Security (IGIS) has oversight of the 6 intelligence agencies subject to the scheme3 and has the same allocation, investigative and educational functions.
This report has been prepared with the assistance of 171 agencies covered by the PID Act. We would like to acknowledge their efforts in collecting the data required for this report.
Elements of the scheme
The PID scheme is designed to be accessible. The definition of disclosable conduct is broad and is intended to encourage public officials to come forward and report wrongdoing. The protections under the PID Act apply to disclosures that:
- are made by a current or former public official
- are to an authorised recipient
- involve ‘disclosable conduct’.
The PID scheme casts a wide net, attracting the actions of both agency staff and contracted service providers and covering a broad range of conduct, including contravention of a law and compliance with the Australian Public Service (APS) Code of Conduct. There is a positive obligation on agencies to investigate PIDs unless certain circumstances apply, and investigations should be completed within 90 days4 with a report provided to the discloser upon completion. Disclosers can make a complaint to the Office or IGIS if they are dissatisfied with an agency’s handling of their PID.
PIDs at a glance
In 2020–21, there were 333 PIDs received across the Commonwealth compared with 359 in 2019–20.
A further 400 disclosures were assessed as not meeting the requirements of s 26 of the PID Act and were not considered public interest disclosures – a number consistent with previous years.
A single PID may involve multiple allegations of disclosable conduct. Of the PIDs made this year, there were 558 alleged instances of disclosable conduct. 5 As in previous years, the most common types of alleged disclosable conduct were 'maladministration', ‘conduct that may result in disciplinary action’ and ‘contravention of a law’.
FIGURE 3: ALLEGATIONS OF DISCLOSABLE CONDUCT FINANCIAL YEAR COMPARISON 6
*Conduct in a foreign country that contravenes a law; fabrication, falsification, plagiarism or deception in relation to scientific research; and conduct that endangers or risks endangering the environment.
Agencies may decline to investigate a PID or decline to further investigate for a range of reasons. This year agencies declined to investigate, in full or part, 105 PIDs (one more than last financial year). The most common reasons for declining to investigate are that the PID did not concern serious disclosable conduct or the allegations had been or were being investigated under another law.
3 Australian Security Intelligence Organisation, Australian Secret Intelligence Service, Australian Signals Directorate, Australian Geospatial-Intelligence Organisation, Defence Intelligence Organisation and Office of National Assessments.
4 Unless an extension of time is granted under s 52(3) of the PID Act
5 This refers to allegations of disclosable conduct prior to an investigation being undertaken.
6Percentages in Figures 2–5 rounded to nearest percentage point.
FIGURE 4: S48 – DECLINED TO INVESTIGATE DECISION – FY COMPARISON
* For the FY2019–20 reporting year, the value here was 7.6 per cent. This has been rounded down to 7 per cent to be consistent with the figure reported in last year's annual report.
Investigation outcomes
A total of 190 PID investigations were finalised this year – 53 investigations resulted in one or more findings of disclosable conduct, and 114 resulted in at least one recommendation that particular action be taken.
We remind agencies at our regular PID forums that a PID investigation that does not result in a finding of disclosable conduct may nonetheless identify an opportunity to mitigate potential risks of wrongdoing or improve agency practice and procedure. This year, 12 agencies completed PID investigations that resulted in one or more recommendations for improvements to agency practice or procedure despite not reaching any findings of disclosable conduct.
FIGURE 5: FINDINGS OF DISCLOSABLE CONDUCT FINANCIAL YEAR COMPARISON
*Conduct engaged in for the purpose of corruption; fabrication, falsification, plagiarism or deception in relation to scientific research; perversion of the course of justice; abuse of public trust and conduct that endangers or risks endangering the environment
Agencies reported a range of outcomes and actions following investigation, including:
- sanctions imposed for code of conduct breaches
- staff training, including management and conflict of interest training
- improved probity and management processes for procurements
- issue of an improvement notice to a contracted service provider
- increased operational oversight of a contracted service provider
- referral of matters for external investigation or assessment.
On 2 occasions, agencies contacted the police because there were reasonable grounds to suspect that a disclosure included evidence of an offence.
The PID Act also enables agencies to recommend the investigation of a PID under another law. Common areas for referral include the Public Service Act 1999 (for investigation of code of conduct matters), Australian Defence Force (ADF) legislation, Public Governance, Performance and Accountability Act 2013 (for fraud matters) and Workplace Health and Safety legislation. This year, 54 recommendations for referral were made. Consistent with last year’s results, the majority involved a referral for investigation under the Public Service Act 1999.
FIGURE 6: REFERRALS TO OTHER INVESTIGATIVE MECHANISMS FINANCIAL YEAR COMPARISON
* Parliamentary Service Act 1999; Ombudsman Act 1976; Inspector-General of Intelligence and Security Act 1986; Australian Federal Police Act 1979
See Appendix 8 for full details of the number of PIDs received, the kinds of disclosable conduct alleged, the number of disclosure investigations and the actions taken in response to recommendations.
Who is using the scheme?
The proportion of PIDs made by current or former public officials remains broadly consistent with recent years at 83 per cent. However, this year, the number of disclosures made by contracted service providers increased from 4 per cent to 12 per cent, and the proportion of disclosures by deemed public officials decreased from 9 per cent to 4 per cent.
Awareness raising and training
Agencies reported providing various PID-related information and training to employees, including annual information sessions, use of the Ombudsman’s PID e-learning course and digital signage and video messaging. Around 33 per cent of agencies provide formal training to their employees yearly, with around 66 per cent of agencies providing either no formal training or providing training only upon request.
Many agencies report providing PID information to contracted service providers via other means, such as during the procurement and contracting process, via access to the agency’s intranet or through the informal distribution of information. Since the number of disclosures from this cohort remains relatively low, at 12 per cent, low awareness may be a barrier to reporting. We will continue to remind agencies of the need to ensure awareness of the PID scheme among this group.
Authorised officers
A public official may only make a disclosure to an authorised officer 7, their supervisor or the agency’s principal officer. As with previous years, most disclosures were made to authorised officers (85 per cent). The proportion of disclosures made to either supervisors (7 per cent) or directly to principal officers (5 per cent) decreased this year.
TABLE 2: AVERAGE NUMBER OF AUTHORISED OFFICERS IN AN AGENCY, BY AGENCY SIZE
Employee numbers | 2020–21 | 2019–20 |
< 50 | 2 | 2 |
50–250 | 2 | 2 |
251–1,000 | 5 | 5 |
1,001–10,000 | 8 | 8 |
Over 10,000 | 9 | 16 |
To maximise accessibility, we encourage agencies to appoint authorised officers at a range of levels; however, the substantive level of most authorised officers remains high, with 48 per cent at senior executive level and 42 per cent at executive level.
Eight agencies reported having no authorised officers other than their principal officer, down from 11 in 2019–20. However, the average number of authorised officers for agencies with greater than 10,000 employees decreased substantially, from 16 to 9. The Office recommends that principal officers ensure enough authorised officers be readily accessible to public officials who work with the agency.
We will continue to encourage agencies to maintain adequate numbers of authorised officers relative to their size and consider the seniority of appointments, to maintain the scheme’s accessibility.
Timeliness
The PID Act imposes a 90-day timeframe on investigations, subject to possible extension from the Office or IGIS where there are reasonable grounds. If an investigation is not completed in time and an extension is not granted, the discloser may, in certain circumstances, seek redress by disclosing the information externally. Consistent with recent years, most investigations were completed within 90 days (55 per cent), with 26 per cent taking between 91 to 180 days and 19 per cent taking more than 180 days.
The Office received 186 requests for extension of time, of which 178 were granted. This was a slight increase from last year (171 requests and 164 granted).
TABLE 3: INVESTIGATION TIMEFRAMES
Timeframe | % of Investigations |
< 90 days | 55% |
91–180 days | 26% |
> 180 days | 19% |
Reprisal
Disclosers who believe they have been subject to reprisal are encouraged to raise the issue with their agency. Agencies are expected to investigate claims of reprisal and, if appropriate, refer the matter to the police or other oversight agency. Disclosers may also contact the Office if they are dissatisfied with the agency’s handling of their reprisal claim.
In 2020–21, Commonwealth agencies reported a total of 27 claims of reprisal, a decrease of 36 from the previous year. The primary types of conduct alleged were disadvantage to employment or unreasonable management action. Agencies reported that, following investigation, no claims were substantiated.
Of the above reprisal claims, 11 enquiries or complaints were made to the Ombudsman. Disclosers variously elected to make a PID regarding the reprisal action, make a complaint to our Office or await the outcome of the agency’s investigation report. The Office encourages agencies to model best practice regarding managing the risk of and investigating concerns about reprisal.
Complaints
The Ombudsman and IGIS can review agencies’ handling of PIDs to assess whether their actions are reasonable and whether agencies are complying with the PID Act and their own PID procedures.
In 2020–21, the Ombudsman received 42 complaints about agencies’ handling of PIDs, which was a decrease on the 51 complaints received in the previous year. Common complaint themes were:
- dissatisfaction with the findings or recommendations of an investigation, or agencies’ consideration of evidence or selection of witnesses
- delays in completing an investigation
- decisions not to investigate because the conduct is not serious or because the matter is already being, or has already been, investigated
- decisions not to allocate disclosures for investigation because they do not concern disclosable conduct
- agencies’ handling of reprisal allegations
- agencies’ communication with disclosers.
We decided to investigate 20 of the 42 complaints we received this year. We finalised 44 complaints. During this year, we made formal comments or suggestions about improving agency processes on 14 occasions. 8
7 A person appointed by an agency's principal officer to receive disclosures. Principal Officers must ensure there are enough authorised officers so they are readily accessible to public officials in their agency.
8 This is the number of comments and suggestions made during the financial year and may include comments made in cases that commenced prior to 2020–21.
CASE STUDY – Communication of PID threshold
The Office received several complaints about decisions that a disclosure did not meet the requirements to be investigated under the PID Act and about the communication of those decisions.
In one case, an agency determined that a disclosure did not show disclosable conduct within the meaning of the PID Act and decided not to allocate the matter for investigation. The discloser complained the agency did not provide reasons for its decision and raised concerns about the fairness and impartiality of the decision.
Our investigation identified the agency did not consider all the allegations made by the discloser in reaching its decision. We also raised concerns about the agency’s obligation under subsection 44(3) of the PID Act to inform the discloser of the reasons for its decision.
As result of our investigation, the agency provided a detailed explanation to the discloser as to why the information they provided did not meet the threshold for allocation under the PID Act. The agency also provided improved lines of communication to allow for any future allegations by the discloser to be considered.
CASE STUDY – Adequacy of record keeping
A discloser complained that an agency had not adequately investigated their PID and was dissatisfied with the outcome of the investigation, which found that disclosable conduct had not been established. The discloser also suggested the agency had not taken action to address certain matters included in the disclosure to ensure such issues did not occur in future.
We considered whether the agency had used the information provided in the disclosure as an opportunity to identify possible gaps in its policies and procedures, irrespective of whether there was a finding of disclosable conduct. Our Office provided comments to the agency regarding their internal record keeping and compliance procedures and the need to provide clear guidance to its staff about record keeping obligations.
We observed that good record keeping enables efficient investigation of disclosures and the matters raised. Our Office also commented on the need to provide clarity to the discloser as to the records and information considered part of the decision-making process.
In response the agency agreed to undertake a review of its current policies and procedures regarding record keeping, including introducing additional quality assurance and staff training.
Ombudsman investigations
Disclosures may be made directly to this Office where there are reasonable grounds to believe the Ombudsman should investigate.
Generally, we consider the agency to which the disclosure relates is best placed to investigate a disclosure. However, the Office may consider investigating a matter directly if satisfied the agency is unable to investigate or respond to the disclosure properly.
This year, the Office assessed 49 disclosures9 about other Commonwealth agencies, slightly down from the 56 assessed in 2019–20. Of the 49 disclosures, 35 were assessed as PIDs – 30 were allocated to the relevant agency for investigation, one was allocated to another oversight agency, and we internally allocated 4 for investigation. We also accepted the allocation of 7 PIDs from other agencies.
We completed 6 public interest disclosure investigations this year. Of these, 3 investigations were completed with a report to the discloser10 and in 3 cases, we decided not to investigate or to cease investigating. No findings of disclosable conduct were made; however, in one case, the Office made recommendations in relation to the agency’s information classification and training processes.
IGIS investigations and complaints
Reporting on disclosures made to IGIS
IGIS received 16 disclosures that met the criteria under section 26 of the PID Act. All these disclosures related to intelligence agencies within the IGIS jurisdiction.
One disclosure was investigated in accordance with the PID Act and finalised with 3 findings of disclosable conduct.
Two disclosures were allocated to an intelligence agency within the IGIS jurisdiction for investigation, and a further 4 were anticipated to be allocated to intelligence agencies within the IGIS jurisdiction shortly after the reporting period. Seven disclosures were investigated under the investigatory powers provided by the Inspector-General of Intelligence and Security Act 1986.
The Inspector-General exercised his discretion not to investigate in 2 cases. One disclosure was not pursued in accordance with subparagraph 48(1)(c) of the PID Act (because the information did not concern serious disclosable conduct). The other disclosure was not pursued in accordance with subparagraph 48(1)(h) of the Act (because the discloser did not wish the investigation of the disclosure to be pursued and the IGIS was reasonably satisfied there were no matters warranting investigation).
Reporting on disclosures made to intelligence agencies
IGIS also reports on the handling of disclosures made within the intelligence agencies. The 6 intelligence agencies within IGIS jurisdiction received 14 disclosures that met the criteria of the PID Act, 9 of which were investigated during the 2020–21 financial year.
Of the remaining 5 cases, the relevant agency exercised discretion not to investigate in 3 cases: two of the disclosures were not pursued in accordance with subparagraph 48(1)(i)(ii) of the PID Act, the other was not pursued in accordance with subparagraph 48(1)(e) of the PID Act. Two disclosures were recommended for
referral to an investigation under a different policy, procedure or law, in accordance with subsection 47(3) of the PID Act, one of these was referred under the Public Service Act 1999, the other under the Public Governance, Performance and Accountability Act 2013.
IGIS received 2 complaints about the handling of disclosures in the reporting period. One concerned the perceived timeliness of an allocation decision by the IGIS Office. This complaint was resolved and closed. The second was a complaint about inadequate communication by an intelligence agency during its investigation of a disclosure. This complaint was resolved and closed.
IGIS provided assistance and advice to officials within the intelligence agencies about the operation of the PID scheme.
Education and awareness
In 2020–21, we held 2 PID forums, both virtual events in light of the ongoing COVID-19 restrictions. Overall, agencies responded positively to our online delivery program and the enhanced participation opportunities it provides. Based on this demand, we will continue with a blend of virtual and in-person forums in the future, once larger gatherings and travel are no longer constrained.
The first forum brought together the diverse range of agency personnel who may be involved in handling PIDs and provided guidance about circumstances that may trigger engagement with our Office, as well as an overview of trends and themes that emerged from last year’s annual reporting. The second forum was specifically tailored for authorised officers to support their important role and key responsibilities when assessing and allocating PIDs. A total of 173 representatives from a large cross-section of agencies attended the 2 forums and provided positive feedback.
As a further response to COVID-19 and the resultant demand for more web-based products, we also added to our online resources this year with the release of a new PID e-learning module. This interactive tool is designed to be used by agencies as a part of their essential training schedule for all staff and aims to build greater awareness of the PID scheme and the positive aspects of a pro-disclosure culture. In the coming year, we will continue to look for new ways to build upon the existing information and resources available on our website.
In 2020–21 the Office responded to 253 enquiries from agencies and disclosers, a 33 per cent decrease from last year. There were also 18,352 visits to the PID section on our website, a 37 per cent increase from last year.
Following the release of the Government Response to the Moss Review on 16 December 2020, the Office contributed to the Attorney-General’s Department’s consultation processes relating to possible PID Act reform.
9 This reporting focuses on the number assessments completed by authorised officers at the Ombudsman’s Office in FY2020–21. It includes 3 disclosures that the Office received in 2019–20, but that were assessed in 2020–21. It excludes one disclosure received in 2020–21, which was assessed in 2021–22.
10 One of these investigations also involved a decision under s 48 of the PID Act, with the investigator declining to investigate specific issues that formed part of the PID.