What are the new protections for whistleblowers?
The PID Act creates an obligation to maintain the confidentiality of the identity of people who disclose certain information appropriately and in accordance with the PID Act.
It is also an offence under the PID Act to victimise a person who has made an appropriate disclosure in accordance with the PID Act.
What type of information can be disclosed?
Public interest information affects the wellbeing of the community. There are two types of public interest information:
- Environmental and health information – where there is a substantial risk to the environment or to public health and safety.
- Public administration information – where there is potential corruption, misconduct or maladministration in public administration.
What is an appropriate disclosure?
Protections are provided to public officers who make an appropriate disclosure of public administration information and for anyone who makes an appropriate disclosure of environmental and health information.
Any member of the community can make a disclosure of environmental and health information, however, to gain the protections provided under the PID Act, they:
- must believe on reasonable grounds that the information is true; or
- if they are not in a position to form such a belief, believe on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated.
In all cases, for a disclosure to be considered an appropriate disclosure of public interest information, it must be made to a relevant authority.
What if the information is about something that happened before 1 July 2019?
You can disclose public interest information about matters that occurred before that date and still have protections under the new legislation.
Who receives protection when disclosing public interest information?
The protections under the PID Act are only provided in certain circumstances. It will depend on who you are, the type of information, what you believe, and who you report to.
Any person can make an appropriate disclosure of environmental or health information and may be protected under the legislation. However, only public officers (e.g. public servants) can receive protections for an appropriate disclosure of public administration information.
Information about public officers is available on the Independent Commissioner Against Corruption (ICAC) website (www.icac.sa.gov.au).
If you are a public officer, it is best to seek the advice of your agency’s responsible officer.
Members of the public can go to the ICAC website for more information.
Can I disclose information anonymously?
Yes, you can disclose information without revealing your identity. However, if your identity becomes known or you reveal your identity when making the appropriate disclosure of public interest information, the PID Act sets out how your identity is to be protected and the limited circumstances in which your identity can be disclosed. If you want to receive updates on any action taken regarding your appropriate disclosure, you need to disclose your identity.
Can other people who investigate the matter reveal my identity?
The strict confidentiality requirement applies to:
- the person you disclosed the information to
- anyone who receives the information by referral
- anyone else who knows about the disclosure.
They can only disclose your identity with your consent, to make sure that the public interest matter is properly investigated or in accordance with Guidelines made by the ICAC under the PID Act. The Guidelines are available on the ICAC website (www.icac.sa.gov.au).
Who can I disclose information to?
To receive the protections under the PID Act, you must have disclosed the public interest information to a relevant authority. A list of relevant authorities is available in the PID Act and in guidelines published under the PID Act by the Independent Commissioner Against Corruption. Who you should report information to will depend on the type of information. For example, environmental risks should be reported to the Environment Protection Authority (EPA), while unauthorised use of public money should be reported to the Auditor-General.
What if the relevant authority does not act on the information I provided?
The relevant authority who received your public interest disclosure must notify you (if they know your identity) of the assessment made and the action to be taken in relation to the information, or that no action is being taken and the reasons for this. They must do this within 30 days. You must also be informed of the outcome of any action within 90 days of disclosure (unless you were advised that this period would be longer).
If you are not notified within the required timeframes, you can disclose the information to a Member of Parliament or to a journalist and remain protected. It is important to check that you have complied with the requirements in the PID Act if you wish to make a disclosure to a Member of Parliament or to a journalist whilst still having the protections under the PID Act
I heard a rumour about maladministration. Can I disclose it?
Public interest information means information that raises a potential issue of corruption, misconduct or maladministration in public administration. You can make an appropriate disclosure of such information to a responsible officer in your agency or to another relevant authority that can receive information under the PID Act.
Most public officers already have obligations to report any matter reasonably suspected of involving corruption or serious or systemic misconduct or maladministration in public administration to the Office for Public Integrity (OPI). Even if an appropriate disclosure is made to a relevant authority other than the OPI, the above obligations to report to the OPI still exists. However, where a public officer makes such a report to the OPI, it will also be treated as an appropriate disclosure under the PID Act.
I have an obligation to make a report to the OPI. Can I still be protected under the PID Act?
An obligation to make a report to the OPI still applies even if an appropriate disclosure is made to a different relevant authority.
In addition, a public officer who makes a report to the OPI under the ICAC Act may also be protected under the PID Act.
Where a public officer makes a report to the OPI about a matter the public officer reasonably suspects involves a potential issue of corruption, misconduct or maladministration in public administration, that report will also be an appropriate disclosure of public administration information because the OPI is itself a relevant authority. Accordingly, such a report will ordinarily provide the public officer the protections under the PID Act. The OPI will deal with your report in accordance with the ICAC Act but will also act consistently with the requirements of the PID Act.
For more information about how the OPI deals with complaints and reports, visit the ICAC website.
How should I disclose the information?
There are many ways you can disclose public interest information but to obtain the protection of the PID Act, you need to ensure it is an appropriate disclosure. You can:
- Contact your department or agency’s responsible officer – they can provide you with advice and assistance.
- Contact OPI – they can provide you with advice and assistance.
Each government department and relevant authority will have their own procedures for receiving public interest information, but they must all comply with the public interest disclosure laws.
What can happen if I disclose information inappropriately?
If you disclose information inappropriately, this could be considered misconduct and you may face disciplinary action. If you disclose information knowing that it is false or misleading, you may face a maximum penalty of $20,000 or two years' imprisonment.
Where can I get more information about protections for whistleblowers?
- Each State Government agency will publish its own procedures.
- ICAC Guidelines – which are also available from ICAC.