Local Government’s obligations with a Public Interest Disclosure

Written by Brian O’Shea, Special Council, Legal and Workforce

The provisions of the Public Interest Disclosure Act 2010 (“the PID Act”) promotes the public interest by facilitating public interest disclosure (“PID”) of wrongdoing in the public sector, while ensuring those making the disclosure are protected from reprisal.

When making a PID, it is essential that as much information as possible is provided so the recipient of that information can properly assess the complaint and consider the appropriate action to be taken in the circumstances.

One such action includes Council’s Chief Executive Officer notifying the Crime and Corruption Commission Queensland (“CCC”) pursuant to s.38 of the Crime and Corruption Act 2001 (Qld) where the CEO reasonably suspects that the complaint involves, or may involve, corrupt conduct.

Often, the CCC will refer the matter back to Council to undertake its own investigation into the complaint/s and to report back to the CCC at regular intervals (usually, 6 weeks, 3 months, 6 months, and 9 months) as to the status and outcome of the investigation.

There is also a self-audit requirement under the PID Act.

On 1 March 2019 the Office of the Queensland Ombudsman (“Ombudsman”) issued the Public Interest Disclosure Standard No. 3/2019 – Public Interest Disclosure Data Recording and Reporting which prescribes the organisational systems and procedures agencies must establish in order to give effect to the requirement under section 29 of the PID Act to keep proper records of PIDs and under section 33 to give information to the oversight agency (Ombudsman).

The chief executive officer of an entity has overall responsibility under the PID Act for the entity’s compliance with the Act, including:

• Receiving and assessing PIDs;
• establishing reasonable procedures to deal with PIDs;
• keeping a record of disclosures;
• reviewing the entity’s decisions not to investigate or deal with PIDs on request; and
• providing disclosure information to the oversight agency (i.e., Ombudsman).

What is a PID?

Relevantly, members of the public and employees of local councils, are able to make certain PIDs to the Chief Executive Officer, the Mayor, their immediate supervisor (if you are an employee) or a person who has the function of receiving or acting on the type of information being disclosed.

A person has information about the conduct of another person or another matter if:

1. The person honestly believes on reasonable grounds that the information tends to show the conduct or other matter; or

2. the information tends to show the conduct or other matter, regardless of whether the person honestly believes the information tends to show the conduct or other matter.

Any person, including a public sector officer, can make a public interest disclosure about:

• Substantial and specific danger to the health or safety of a person with a disability;
• substantial and specific danger to the environment caused by commission of an offence or contravention of a condition in certain environmental legislation; or
• reprisal that occurs after the making of a public interest disclosure.

A public sector officer can also make a public interest disclosure about:

• Corrupt conduct;
• maladministration that adversely affects a person's interests in a substantial and specific way;
• a substantial misuse of public resources;
• a substantial and specific danger to public health or safety;
• a substantial and specific danger to the environment.

Those who receive a PID are then required to properly assess, investigate (where appropriate) the disclosure and act upon the information obtained. They have obligations under the PID Act to ensure that:

• Public officers of the entity who make PIDs are given appropriate support;
• public officers are offered protection from reprisals;
• the entity has a management program for PIDs, in accordance with the PID standards;
• PIDs made to the entity are properly assessed and investigated; and
• appropriate action is taken in relation any wrongdoing that is the subject of a PID.

How is a PID made?

A person may make a PID to a proper authority in any way, including anonymously.

If a proper authority has a reasonable procedure for making a PID to the proper authority, the person must use the procedure.

The chief executive officer of a public sector entity must ensure the procedures are published, as soon as practicable after the procedures are made, on a website that is maintained by the public sector entity and readily accessible to the public.

Disclosers are entitled to reasonable information about the action taken as a result of making a disclosure. This includes information about the action proposed and, if action is taken, the results of that action.

Protection

Reprisal against a discloser is an offence. The PID Act also makes the public sector entity vicariously liable if any of the entity’s employees attempt or cause reprisal against a discloser (whether the discloser is a public officer or a member of the public). Public sector entity chief executive officers have specific obligations to ensure public officers who make a disclosure are supported and offered protection from reprisal.  

If you are a public sector officer, you cannot be disciplined for the action of making a public interest disclosure. However, a discloser’s liability for their own conduct is not affected by the action of making a disclosure. Making a disclosure does not prevent reasonable management action.

The PID Act also provides that appropriate consideration be given to the interests of the person subject to a public interest disclosure. Sometimes a disclosure is the result of an honest but mistaken claim, and it is important that all public sector officers are treated fairly.

Councils receiving PIDs can seek legal advice from Peak Services Legal on the handling of complaints received and any investigation required to be undertaken. Such advice can also include steps required to be taken where reprisal is a concern.  

If your organisation requires representation on any matter or needs advice on any industrial relations or employment law matter, please contact the team at peaklegal@wearepeak.com.au or call 07 3000 2148.