Appendix C - Public Interest Disclosure Act 2003
The Public Interest Disclosure Act 2003 (PID Act) applies to all WA public authorities, as defined in Part 1 of the PID Act. That definition, and the related definition of public officer, is expansive and includes, and extends beyond, the public sector as defined in the Public Sector Management Act 1994, so as to also encompass the following:
- staff of the Governor’s Establishment
- political officeholders and electorate staff
- staff of the Parliament
- judicial officers and staff of courts and tribunals
- public universities
- local government authorities
- police officers
- government trading enterprises
- contractors and subcontractors to public authorities who supply goods or services to or on behalf of the authority or the state, or who perform public functions.
The objective of the PID Act is to:
- facilitate the disclosure of public interest information
- provide protection for people who make disclosures
- ensure appropriate disclosures are investigated and, where required, action taken.
The initial purpose of the PID Act was to ensure the openness and accountability of government. This purpose was achieved by enabling persons who witnessed illegal conduct, or the mismanagement of public resources, to disclose such wrongdoing without fear of reprisal. The PID Act was recently amended by expanding the capacity of employees to make public interest disclosures, and by increasing the protection available to whistleblowers.
Public interest information is information that shows, or tends to show, that a public authority, a public officer or a public sector contractor is, has been, or proposes to be, involved in:
- improper conduct
- an act or omission that constitutes an offence under a written law
- a substantial, unauthorised or irregular use of, or substantial mismanagement of, public resources
- conduct involving a substantial and specific risk of injury to public health, prejudice to public safety or harm to the environment
- a matter of administration affecting someone in a personal capacity that falls within the jurisdiction of the Parliamentary Commissioner for Administrative Investigations (Ombudsman).
Anyone, including members of the public, can make a disclosure of public interest information. A person making a disclosure must believe on reasonable grounds that the information they have is, or may be, true.
Disclosures must be made to a proper authority – either to a designated public interest disclosure officer within the public authority concerned, or to one of the proper authorities named in the PID Act, such as the Corruption and Crime Commission, the Office of the Auditor General, the Ombudsman or the Public Sector Commissioner. In certain circumstances, disclosures may be made to journalists. The PID Act does not protect disclosures made to persons other than proper authorities, or made to journalists in accordance with s. 7A(2) of the PID Act.
Proper authorities are required to manage appropriate disclosures in accordance with the PID Act. This includes investigating appropriate disclosures, providing reports to the discloser, and not identifying the discloser, or the subject of the disclosure, other than as provided for by the PID Act.
A person who makes an appropriate disclosure under the PID Act is afforded protections, including immunity from legal action, disciplinary action and termination for making the disclosure. These protections may be forfeited if:
- the person discloses information contained in the disclosure other than in accordance with the PID Act
- the person fails to assist in the investigation of the disclosure without a reasonable excuse.
As part of protecting disclosers, the PID Act also makes it an offence to take, or threaten to take, detrimental action against another because they have made, or intend to make, a disclosure under the PID Act. Penalties also apply where a person incites another person to commit that offence.
A person who believes that they have been, or will be, subjected to detrimental action in reprisal for disclosing public interest information may either apply to the Supreme Court for an order remedying the detrimental action, take civil action in tort, or make a complaint under the Equal Opportunity Act 1984. In the event that a discloser who is an employee still fears reprisal, the individual can apply to the employing authority for workplace relocation.
The role of the Commissioner is established in Part 4 of the PID Act. The Commissioner is to:
- establish a code setting out the minimum standards of conduct and integrity to be complied with by proper authorities (Public interest disclosure code of conduct and integrity (PID code))
- prepare guidelines on internal procedures relating to the functions of a proper authority under the PID Act and ensure all public authorities have copies of these guidelines (Public interest disclosure - guidelines)
- assist public officers and public authorities to comply with the PID Act and PID code
- monitor compliance with the PID Act and PID code
- report annually to parliament on:
- the performance of the Commissioner’s obligations under the PID Act
- public authorities’ compliance with the PID Act
- public authorities’ compliance with the PID code.
The Commissioner is also the proper authority for receiving disclosures of public interest information that relate to a public officer (other than a member of parliament, a minister of the Crown, a judicial officer, or an officer referred to in Schedule 1 of the Parliamentary Commissioner Act 1971).
Under s. 23 of the PID Act, the principal executive officer (PEO) of a public authority is required to:
- designate a specified position within the authority to receive disclosures of public interest information
- provide any employee who has made an appropriate disclosure with protection from detrimental action or the threat of detrimental action
- ensure the public authority complies with the PID Act and the PID code
- prepare and publish internal procedures relating to the authority’s obligations under the PID Act
- provide information annually to the Commissioner on the:
- number of public interest disclosures received
- results of any investigations conducted and the action taken, if any
- such other matters as are prescribed.
The PID Act changed on 21 November 2012 when amendments contained in the Evidence and Public Interest Disclosure Legislation Amendment Act 2012 came into operation. These changes are set out below.
Enhanced protections available for disclosers of public interest information
The enhanced protections take two forms:
- injunction - if persons believe they have been, or will be, subject to detrimental action in reprisal for making a protected disclosure, they may apply to the Supreme Court for either an order remedying the detrimental action, or injunctive relief.
- relocation - employees who believe they have been, or will be, subject to detrimental action in reprisal for making a public interest disclosure may apply to their employing authority to be relocated. The employer will be required to relocate the employee away from the employee’s existing work location when relocation is the only practical means of substantially reducing the danger of reprisal (provided the employee consents to the proposed relocation).
The ability to make an anonymous disclosure
A person is now explicitly able to make an anonymous public interest disclosure. If a person makes an anonymous disclosure, the relevant public authorities are relieved of their obligation to notify the discloser of the status or outcome of any investigation initiated, or any action taken, as a result of the disclosure.
The ability to make a disclosure to a journalist under certain conditions
Similar to laws in other jurisdictions, a disclosure can now be made to a journalist under certain conditions, and only when the disclosure has first been made to a proper authority.
Persons may make a disclosure to a journalist, provided they disclose information which is substantially the same as that which they disclosed in the original disclosure, and the proper authority receiving the original disclosure, or the person to whom a matter was referred to under s. 9(1)(b) of the PID Act, did one of the following:
- refused to investigate, or discontinued the investigation of, a matter raised by the disclosure
- did not complete an investigation within six months of the matter being raised
- completed an investigation but did not recommend that action be taken
- did not notify the discloser within three months of the disclosure being made about the proposed actions or the actions taken
- did not provide a report (if applicable) stating the outcome of the investigation and any action proposed or taken and the reasons for that action.
For the purposes of the PID Act, a journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a medium for dissemination to the public of news and observation of news.
A person who makes a disclosure to a journalist, under the circumstances outlined above, is taken to be a person who makes a public interest disclosure and this person will be eligible to receive all the relevant protections under the PID Act.
The ability to reveal the identity of the discloser and the subject of a disclosure
Persons may need to identify the discloser or the subject of a public interest disclosure if they have been ordered by a court, or another person or body with the authority to make such an order.
Page last updated 10 December 2013