Public Interest Disclosure Act 2013 (Cth): PID Scheme for Commonwealth Public Officials
The Public Interest Disclosure Act 2013 (Cth): who can disclose, who they can disclose to, internal vs external/emergency disclosures and protections from reprisal.
Scope of the PID Act
The Public Interest Disclosure Act 2013 (Cth) (PID Act) commenced on 15 January 2014 and applies to the Commonwealth public sector. This includes departments, executive agencies, statutory agencies, Commonwealth companies and prescribed authorities that are regulated by the PID Act under section 71. The Act provides a framework for Commonwealth public officials to disclose information about suspected wrongdoing. Whistleblower protection Part 9.4AAA Corporations Act applies in other contexts.
‘Disclosable conduct’ is defined in section 26 and includes matters such as illegal conduct, corruption, maladministration, abuse of public trust, deception relating to scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment, and abuse of position. The PID Act is not intended to cover all instances of wrongdoing within the public sector.
The PID Act does not generally cover disagreements with government policy or breaches of the Australian Public Service Code of Conduct that do not also constitute disclosable conduct. Significant amendments were made by the Public Interest Disclosure Amendment (Review) Act 2023, which came into force progressively from July 2023.
Who can disclose and to whom
A ‘public official’ can make a disclosure under the Public Interest Disclosure Act 2013 (Cth). This includes current and former employees of the Australian Public Service, parliamentary service employees, contracted service providers, statutory office holders and members of the Defence Force.
Internal disclosures should generally be made to an ‘authorised internal recipient’. These recipients are a discloser’s supervisor, an authorised officer in the relevant agency, or the principal officer. Each agency is required to have an Authorised Officer system, and agencies must investigate disclosures under sections 47-51.
Disclosures can also be made externally or as emergency disclosures in defined limited circumstances. The Commonwealth Ombudsman oversees the PID scheme generally; the Inspector-General of Intelligence and Security (IGIS) oversees the intelligence community. Note that different rules apply to disclosures relating to taxation; see Whistleblower Tax Administration Act Part IVIIIB for more information.
Internal, external and emergency disclosures
Internal disclosure is the standard pathway for Commonwealth public officials reporting suspected wrongdoing. This involves making a disclosure to a supervisor, an authorised officer, or a principal officer within the relevant agency.
External disclosure is available in limited circumstances. It is permitted if an internal disclosure has already been made and investigated, and the discloser considers the response inadequate or the investigation was not completed within the required timeframe. Emergency disclosures are permitted where the discloser believes the information relates to a substantial and imminent danger to health, safety or the environment.
It is important to note that both external and emergency disclosures are restricted; they cannot include ‘intelligence information’ as defined in section 41. Disclosers can also seek legal advice about making a PID through a legal practitioner, even prior to making an internal disclosure.
Protections and reprisal
The *Public Interest Disclosure Act 2013* provides several protections for Commonwealth public officials who make a protected disclosure. Section 10 grants immunity from civil, criminal and administrative liability for the discloser, provided the disclosure is made in accordance with the Act. This protection extends even where the discloser’s belief about the disclosable conduct ultimately proves to be incorrect, as long as the disclosure was made on reasonable grounds. Disclosers also benefit from protections outlined in the Public Service Act 1999 Code of Conduct.
Section 13 of the Act prohibits taking reprisal against a person who has made, or could make, a public interest disclosure. This prohibition is enforced through criminal penalties; a breach can result in imprisonment for up to 2 years and/or a fine of 120 penalty units.
Civil remedies are also available to disclosers who experience reprisal. Section 14 allows for compensation, injunctions, and apologies to be awarded as redress for actions taken in retaliation for making a disclosure. Furthermore, Section 20 prohibits the identification of disclosers, and a breach of this provision is a criminal offence, carrying a penalty of up to 6 months imprisonment and/or 30 penalty units.
Frequently asked
Who is a 'public official' who can make a PID?
Under section 69 of the Public Interest Disclosure Act 2013, public officials include current and former Australian Public Service employees, parliamentary service employees, statutory office holders, Defence Force members, members of staff of Commonwealth companies, contracted service providers and their employees, and others prescribed by the rules. The Act covers both current and former public officials, ensuring whistleblower protections do not end at separation.
When can a public-interest disclosure be made externally to the media?
External disclosure is only permitted after an internal disclosure has been made and either: (a) the agency response was, on reasonable grounds, inadequate; or (b) the investigation was not completed within statutory time frames. Disclosure must not include intelligence information. A separate 'emergency disclosure' route permits external disclosure where the discloser reasonably believes the information concerns a substantial and imminent danger to health, safety or the environment.