The Public Interest Disclosure Act 2018 (“the Act”) will commence operation on 1 July 2019, repealing the Whistleblowers Protection Act 1993.

LG Leader June 2019

Please see our previous Alerts for our detailed summary of the framework under the Act, or who will be considered to be a relevant authority.

We have now received several requests for clarification in relation to the preparation of a Procedure under section 12 of the Act, and we set out a summary of the issues raised for the assistance of our readers.

• Section 12 of the Act requires the CEO of a council to appoint one or more responsible officers under the Act, and while the principal officer of a public sector agency is required to also prepare and adopt a procedure, a council does not fall within the definition of a public sector agency for the purposes of the Public Sector Act 2009.
• Nevertheless, given the obligations of a relevant authority under the Act, (which will include officers, employees and elected members), to receive, assess and take action in relation to a disclosure, we recommend that councils prepare and adopt a Procedure, to provide guidance for both informants, as well as employees and elected members. We caution against adopting a position under that Procedure which requires that a Responsible Officer will be the only person responsible for the assessment of a disclosure. It is the recipient of the disclosure who has certain obligations under section 7 to assess the information, and take certain
  action following that assessment, which may, or may not, be the Responsible Officer.
• A council’s processes should not require its employees, including its Responsible Officers, to conduct an investigation, (even a preliminary investigation), into a disclosure of public administration information. Such a disclosure, relates to information that raises a potential issue of corruption, misconduct or maladministration in public administration. It is for the OPI, and the ICAC, to receive and assess such disclosures and to determine who the relevant authority, or inquiry agency is, for the purposes of a referral under the Independent Commissioner Against Corruption Act 2012.

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 the Act, please do not hesitate to contact Tracy Riddle at triddle@kelledyjones.com.au or telephone 08 8113 7106.