‘Relevant Authorities’ for the purposes of the Public Interest Disclosure Act 2018

4 June 2019

As our readers will be aware, the Public Interest Disclosure Act 2018 (‘the Act’) commences operation on 1 July 2019. Concurrently, the Whistleblowers Protection Act 1993 will be repealed.

The purpose of the Act is to encourage and facilitate disclosures of certain information in the public interest. This is to occur by ensuring that proper procedures are in place for making and dealing with such disclosures and by providing protection for persons making a disclosure.

Our clients have already identified some confusion in relation to who or what is to be considered as a relevant authority; for the purposes of the Act. In particular, who/what might be considered to be relevant authority for the purposes of a public interest information disclosure.

We can dispel this confusion for our readers.

Central to the operation of the Act is section 5(1) which has the effect of providing for an immunity for an informant who makes an appropriate disclosure of public interest information to a relevant authority for the purposes of the Act.

Public Interest Information

Is defined as:

environmental and health information; and

public administration information.

That is, there are two (2) categories of public interest information created under the Act. Whilst anyone can make a disclosure of public administration information, only public officers who make such a disclosure are entitled to the protections under the Act.

Appropriate Disclosure

An informant makes an appropriate disclosure of environmental and health information to a relevant authority when they believe on reasonable grounds that the information is true; or that the information may be true and is of sufficient significance to justify disclosure so it may be investigated.

Environmental and health information is information that raises a potential issue of a substantial risk to the environment, or to the health and safety of the public generally, or a significant section of the public.

Conversely, a disclosure under the  public administration information category will be an appropriate disclosure when it is made to a relevant authority and the informant (being a public officer) reasonably suspects the information raises a potential issue of corruption, misconduct or maladministration in public administration.

Relevant Authority

It is the question of who is to be considered to be a relevant authority for the purpose of an appropriate disclosure of public interest information that is creating some confusion.Subsection 5(5) of the Act commences with ‘A disclosure of  public interest information is made to a relevant authority if it is made to …’ (our emphasis).

That is, the subsection does not distinguish between either category for the purposes of the disclosure.

The subsection then continues on:

(a)        where the information relates to a public officer –

(i)        a person who is, in accordance with any guidelines prepared under section 14, designated as a person who is taken to be  responsible for the management or supervision of the public officer or to the relevant responsible officer; or

(ii)      a person who is, in fact, responsible for the management or supervision of the public officer or to the relevant responsible officer; or

  …

(d)       where the information relates to a location within the area of a particular council established under the Local Government Act 1999 – a member, officer or employee of that council; or

Protections under the Act

It has been suggested that the term ‘location’ in (d) above is limited only to disclosures made under the environmental and health information category and, accordingly, elected members will only be a relevant authority for the purposes of the Act if a person makes a disclosure of environmental and health information to them.

On a plain and ordinary reading of the provisions under the Act, this cannot be the correct interpretation. Further, there is nothing in the second reading speeches that supports such an interpretation.

Simply put, a disclosure of public interest information (under whichever category) is made to a relevant authority if it is made to one of the persons set out under section 5(5) of the Act, and where it pertains to a location within a council area, may be made to a member, officer or employee of that council.

To suggest otherwise would mean that  the following  would not constitute an  appropriate disclosure for the purposes of the Act:

• information that raises a potential issue of corruption, misconduct or maladministration in public administration as against an elected member, made to the CEO, not being a responsible officer;
• information that raises a potential issue of corruption, misconduct or maladministration in public administration regarding a procurement process, for example, in relation to a playground, the disclosure not necessarily pertaining to any particular public officer;
• information that raises a potential issue of corruption, misconduct or maladministration in public administration regarding unsafe practices at a building site, within the responsibility of the council, not necessarily pertaining to any individual public officer, made to an elected member; and
• there are numerous examples where the Ombudsman, in response to a referral from the ICAC pursuant to section 24(2)(a) of the ICAC Act,  has made a finding  against  a Council (a public authority, not a public officer) of maladministration and/or misconduct in public administration.

If the interpretation identified above as contributing to the current confusion were to be maintained, information provided by an informant to a council member, officer or employee pertaining to any of the above public administration information disclosures would not be afforded the protections under the Act

To read down the provisions in such an arbitrary and constrained manner, without any clear intent in the Act to support such an approach, serves only to cut across the protections afforded by the Act and does not give effect to the Objects and the public policy intent of the Act.

Simply put, an informant who makes an appropriate disclosure of public interest information, under whichever category, should feel secure that they will be afforded the protections under the Act, whether they make that disclosure to an officer, employee or elected member of the council, where it pertains to a location within the council area, each being a relevant authority for the purposes of the Act.

Conclusion

If you would like to arrange a training session for employees and/or elected members in relation to their responsibilities under the Act, or otherwise would like assistance in preparing a procedure for receiving and managing public interest information disclosures in accordance with section 12 of the Act, please contact Michael Kelledy on 8113 7103 or mkelledy@kelledyjones.com.au or Tracy Riddle on 8113 7106 or tracyriddle@kelledyjones.com.au.