On 1 January 2020, important reforms to Victoria’s public integrity system commence, to better encourage disclosures of wrongdoing and misconduct in public office.
In this issue of IBAC Insights, Philip Hill, principal lawyer at IBAC and Sophie Molyneux, senior lawyer at IBAC look at the key changes to the renamed Public Interest Disclosures Act 2012 and provide answers to some frequently asked questions. This is an abridged version of an article published in the December issue of the Law Institute Journal.
How is the definition of a public interest disclosure changing?
Public interest disclosures are complaints that show improper conduct or detrimental action by a public body or a public officer. Public interest disclosures attract protections under the Public Interest Disclosures (PID) Act.
Previously, the definition of improper conduct included corrupt conduct and specified types of conduct where the specified conduct constituted a criminal offence or reasonable grounds for dismissal.
In 2020, improper conduct will encompass corrupt conduct, criminal offences and specified categories of conduct without the need for the conduct to be a criminal offence or reasonable grounds for dismissal. Improper conduct will also include a new category– serious professional misconduct. Importantly, trivial conduct is excluded.
By including serious professional misconduct in the definition of improper conduct, parliament intended to broaden the types of complaints that could be afforded protection under the PID Act. This may include conduct that does not constitute criminal activity or conduct that does not fall into one of the specified categories but where the conduct exhibits a serious disregard for the responsibilities of the office and the professional conduct expected in the workplace. The conduct will need to be appropriately ‘serious’, so may involve a dishonest or intentional mindset, significant risks or impact on others or persistent behaviour.
Who can complaints be made to?
Misdirected disclosures
Another change to the scheme is a ‘no wrong door’ approach that will allow misdirected disclosures to remain subject to protections. The changes mean that any public interest disclosures made to the wrong receiving entity will be protected and will be transferred to the correct body, without making a discloser start again.
The following conditions apply:
- the complaint must be made to a body that can receive public interest disclosures
- the discloser must have honestly believed they were disclosing to the correct receiving body
- the complaint must not relate to members of the Legislative Assembly or Legislative Council. These complaints must always be made to the Speaker or President of the respective houses.
Disclosures to third parties after inaction for a specified period
New provisions will allow a discloser to disclose the content of a complaint to a third party (such as a journalist or member of Parliament) and retain the protections under the PID Act. This provision applies where a complaint has been determined to be a public interest disclosure and the investigating entity has subsequently not provided information on progress in certain circumstances.
These new provisions empower disclosers where the investigation of a complaint is unjustifiably delayed, and ensures greater accountability and transparency within the integrity system.
Are protections changing?
Broader protection against detrimental action
It is an offence for a person to take, threaten to take or allow another person to take detrimental action against another person in reprisal for making a public interest disclosure.
A defence was available if it could be shown that the disclosure was not the substantial reason for the detrimental action. From 1 January 2020, if the fact that an employee has made a disclosure forms any part of the reason for which action is taken against that employee, it will constitute detrimental action.
The ability for a discloser to claim compensation against someone for taking detrimental action against them has been enhanced by strengthened protection from adverse legal costs. The discloser is not liable for legal costs in relation to their compensation claim unless that claim is vexatious or the litigation has been conducted unreasonably.
Confidentiality requirements for better welfare support to disclosers
Restrictions already apply to disclosure of information to bodies outside the integrity system. The amended scheme will provide for a wider range of bodies to which disclosure of confidential information can be made, and the circumstances under which disclosures can be made will be expanded.
For example, disclosure to registered health practitioners, trade unions and employee assistance programs will be permitted for the purposes of seeking advice or support for the discloser. Disclosure to WorkCover for the purpose of a workers’ compensation claim and to the Fair Work Commission for the purposes of an application will also be permitted.
Also, people who are served with a confidentiality notice will be able to share the information restricted by that notice with a spouse or domestic partner and an employer or manager, as well as the support bodies listed above, unless the agency that issued the confidentiality notice directs otherwise.
How will a public interest disclosure be handled?
Once a complaint has been made it will be assessed by the receiving body. The receiving body must assess:
- whether the complaint shows or tends to show a person, public officer or public body has, is, or proposes to engage in improper conduct or detrimental action
- whether the discloser believes on reasonable grounds that the complaint shows a person, public officer or public body has, is, or proposes to engage in improper conduct or detrimental action.
Where a complaint meets this threshold, it will be notified to the appropriate entity for assessment. Disclosures about IBAC or the Public Interest Monitor are notified to the Victorian Inspectorate, disclosures about the Victorian Inspectorate will be notified to the Integrity and Oversight Committee of Parliament, and disclosures about any other person or body are notified to IBAC.
So IBAC continues to have a central oversight role in relation to public interest disclosures, with some increased flexibility in how disclosures can be dealt with.
New flexibility to determine a disclosure as a non-public interest complaint
IBAC will have a new power to refer complaints to a public body to deal with. This power can only be exercised with the consent of the discloser and after consulting the notifying body. This will allow IBAC to be more responsive to the interests of the complainant and the notifying body, in situations where a complaint has been or can be more appropriately dealt with outside the integrity system, including where the matter can be dealt with by an enterprise agreement.
Additional investigating entities
IBAC will be able to determine that a public interest disclosure should be investigated by the Chief Municipal Inspector, the Racing Integrity Commissioner or the Information Commissioner.
Though there are limitations on the sorts of public interest disclosures that can be referred to these bodies and a consultative process is required before referrals can be made, this significantly increases the bodies empowered to investigate and address complaints.
Conclusion
The changes to Victoria’s system for receiving and investigating allegations of corruption and misconduct are intended to expand and encourage the making of public interest disclosures in Victoria, and recognise the importance of such disclosures to ensure the integrity of our public sector.
For more information, read the fact sheet Key changes – Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Act 2019 (no.2/2019).
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