HUMAN RESOURCES PROCEDURE
THE PUBLIC INTEREST DISCLOSURE
SCHEME
Introduction
These procedures are established under the Public Interest Disclosure Act
2013 (the Act) and the Public Interest Disclosure Rules (the Rules) made
under s.83 of that Act and the Public Interest Disclosure Standards (the
Standards) made under section 74 of that Act.
Our
Commitment
The Family Court and Federal Circuit Court (the courts) are committed to
complying with all applicable laws and with best practice. Corrupt practices,
breaches of the law and other conduct disclosable under the Act are contrary
to our values. If they occur, reporting them is encouraged so they can be
addressed properly.
The objective of these procedures is to promote the integrity and
accountability of the administration of the Courts in accordance with the Act,
consistent also with the APS Values and Code of Conduct, and to provide a
framework for effective public interest disclosures.
Each Public Interest Disclosure made will be handled confidentially, and the
Discloser protected in accordance with the Act.
Consistency
with the Act,
Rules and
Standards
These procedures must be applied and interpreted in a manner not
inconsistent with the Act, the Rules and the Standards.
The Agency Guide attached to these procedures forms part of these
procedures to the extent expressly stated in these procedures.
What is a Public
Interest
Disclosure?
Essentially it is a disclosure by a current or former public official of suspected
wrongdoing in the Commonwealth public sector. The emphasis of the
scheme is on disclosure being made and investigated within government, but
in limited circumstances a disclosure outside of government is permitted.
Who can make a
Public Interest
Disclosure
Under the Act, a person who is a current or former ‘public official’ may make
a Public interest Disclosure. A public official includes:
 an APS employee - including non-ongoing and casual employees
 a statutory office holder – including family consultants appointed
under regulation 7 of the Family Law Regulations
 another person who exercises power under a Commonwealth law
 people and bodies providing services under a Commonwealth
contract including subcontractors
It is to be noted that in certain circumstances, a person who is not a current
or former public official may be deemed by an authorised officer for the
purposes of a disclosure to be a public official. Even if you believe that you
are not a current or former public official, you should not assume that you
cannot make a public interest disclosure. You may discuss this with any
person to whom a disclosure may be made. In appropriate circumstances,
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you may be determined by notice in writing to be a public official.
An authorised officer may, on his or her own initiative or at the request of the
person, determine that the person is deemed to be a public official for the
purposes of these procedures. If a person asks to be deemed to be a public
official then the authorised officer must make a decision on the request and,
if refusing the request, advise the person requesting of the reasons. An
authorised person who determines that a person is deemed to be a public
official must issue a written notice to the person stating that the act has
effect, and has always had an effect, in relation to the disclosure of
information as if the individual had been a public official when he or she
obtained the information.
For further information refer to the section - ‘Who can make a Public Interest
Disclosure’ in Agency Guide which forms part of these procedures.
To whom may a
Public Interest
Disclosure be
made?
A Public Interest Disclosure may be made as an internal disclosure within the
courts to the Chief Executive Officer, to a person’s current supervisor or to
another authorised person.
In certain circumstances, a disclosure may be made also as an external
disclosure to an outside person or body, such as the Ombudsman.
It is to be noted that a public official must use one of the proper avenues
open to him or her under the Act in order to gain the protections for which it
provides.
For further information refer to the section ‘Who can a Public Interest
Disclosure be made to’ in Agency Guide which forms part of these
procedures.
Who is an
‘authorised
person’?
The following people have been authorised to receive disclosures and are
authorised persons for this purpose:
 the Regional Registry Manager, Sydney
 the Executive Director, Client Services
 the Director, Human Resources
Additional authorised persons may be appointed where necessary. The Act
sets out other people or bodies to whom, or which, public interest disclosures
may be made and the circumstances in which such disclosures may be
made.
Where the circumstances of a particular case require, consideration will be
given also to appointing, as an authorised person, a person other than a
person referred to above including one who is independent of the courts.
How can a
public interest
disclosure be
made?
A public interest disclosure may be made orally or in writing. It is not
necessary for there to be an express assertion that disclosure is made under
the Act in order for the Act to apply to it. If a disclosure is made orally, a
record should be made of what was said. The discloser should normally be
asked to sign the record as being correct.
Those who make disclosures are advised to be clear and factual, and to
avoid speculation, personal attacks and emotive language. It is of great
importance that such a person should not attempt to investigate the matter
for himself or herself before making the disclosure – doing so may hinder
future investigation. The earlier a disclosure is made may mean that it is
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correspondingly easier for the courts to take action on it.
Persons making disclosures do not have to identify themselves – they may
remain anonymous. This means that a person does not disclose his or her
identity at any stage to anyone, including the authorised officer who receives
a disclosure. Anonymous disclosures may be made and will be acted upon
where possible. There are sensible reasons, however, why a person should
consider identifying himself or herself to an authorised officer when making a
disclosure.
These include that the Act requires agencies to keep confidential the identity
of the person who makes a disclosure, subject to limited exceptions including
the consent of that person. Nevertheless, a person's identity may become
apparent if an investigation is commenced. It should also be noted that it may
be difficult to ensure proper protection of a person if his or her identity is not
known.
An authorised officer who receives an anonymous report must have
reasonable grounds to suspect that the alleged conduct has occurred in
order to proceed to investigation. An anonymous report may not ultimately be
the subject of action. Likewise, it may be difficult to conduct an investigation if
the person making the disclosure cannot be contacted for further information.
Finally, a person making a disclosure who does not at least provide a means
of contact cannot be updated on the progress of the matter.
It is a requirement to making a public interest disclosure that the person is or
was (or is deemed to be) a public official. While this does not mean that the
person making the disclosure has to prove his or her status, it is sensible to
seek information that would tend to support it. In any case of doubt, an
authorised person should seek advice including from the Chief Executive
Officer before rejecting a claim to be a present or former public official.
What can be
disclosed?
Information may be disclosed if it tends to show on reasonable grounds
‘disclosable conduct’.
Disclosable conduct is conduct by:
 an agency
 a public official in connection with their position
 a contracted Commonwealth Service provider with entering into or
giving effect to the contract
if that conduct:
 contravenes a Commonwealth state or territory law
 in a foreign country, contravenes a foreign law that applies to the
agency, official or service provider
 perverts the course of justice
 is corrupt
 constitutes maladministration, including conduct that is based on
improver motives or is unreasonable, unjust, oppressive or negligent
 is an abuse of public trust
 involves fabrication, falsification, plagiarism or deception relating to
scientific research, or other misconduct in relation to scientific
research analysis or advice
 results in wastage of public money or public property
 unreasonably endangers health and safety
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 endangers the environment
 is prescribed by the PID rules (s 29(1)).
Individual grievances or workplace conflicts would generally be dealt with
appropriately by other existing mechanisms, such as under the bullying and
harassment policy, rather than being the subject of an investigation under
this Act. Despite this, such an issue ought to be treated as one to which the
Act applies if it could reasonably be construed as representative of a larger
or systematic issue within the courts.
For further information refer to the section ‘What can be disclosed’ in Agency
Guide which forms part of these procedures.
Relevance of the
motives and
conduct of the
discloser
A person receives protection under the Act if he or she reports disclosable
conduct under it. The motive or intention of the person making the disclosure
does not determine whether or not investigation is warranted.
A person receiving a disclosure must be careful to focus on what he or she
believes occurred, to remain factual and focus on the issues related to the
wrongdoing asserted.
Making a disclosure does not necessarily protect the discloser from the
consequences of his or her wrongdoing, including where he or she has been
involved in the reported misconduct. However, all of the facts and
circumstances of the case will be taken into account in determining whether,
and if so what, action will be taken against the person making a disclosure.
A person who makes a disclosure that is intentionally false or misleading will
not gain the protections of the Act. In such a case, disciplinary action will be
considered.
Determining whether or not a disclosure is vexatious may require
consideration of the motives of the person making it.
Key roles and
responsibilities
The Agency Guide suggests the appointment of a coordinating officer to
coordinate the interactions between the Administration of the courts and
other agencies. The coordinating officer for all purposes is the Chief
Executive Officer of the Administration.
The Chief Executive Officer’s personal staff are responsible for recording the
numbers and types of public interest disclosures, the number of
investigations, the outcomes and details of any support provided to a
disclosure and allegations of reprisal. These matters must all be reported to
them by authorised officers.
For further information refer to the section ‘Key roles and responsibilities’ in
the Agency Guide which forms part of these procedures.
Allocating and
investigating
disclosure
Key elements of the allocation and investigation requirements include the
following:
 An authorised officer must first decide whether or not a disclosure
made is an internal disclosure under the Act. In the normal course,
an internal disclosure should be brought immediately to the attention
of the CEO who will determine how to proceed.

Unless reasonably satisfied that the disclosure is not an internal
disclosure, the authorised officer must allocate the matter for
investigation within 14 days, unless there are good reasons (such as
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the need to conduct preliminary enquiries) why more time is required.

The authorised officer may undertake enquiries and obtain further
information before making a decision.

An allegation with no supporting information is not sufficient to tend to
show the wrongdoing has occurred or may be occurring – there must
be sufficient information to support the allegation. If there is
insufficient information to support the allegation, the discloser should
be asked for additional information.

The person making the disclosure must be informed of details of what
decisions have been made about it.

There are grounds upon which a decision may be made not to
investigate a disclosure. These include that the person making the
disclosure is not a current or former public official, the information is
not considered serious disclosable conduct or that the disclosure is
frivolous or vexatious. While, ordinarily, the motives of the discloser
are not relevant to any decision about the disclosure, determining
whether or not a disclosure was vexatious may go to the motives of
the person making it. This is because a vexatious disclosure may be
one, for example, that is made with the intention of annoying,
embarrassing or harassing someone else.

The authorised officer may allocate the handling of a disclosure for
investigation to one or more agencies including the Administration of
the courts, the Ombudsman or a prescribed investigative agency,
provided that the agency in question consents.

Supervising agencies, such as the Ombudsman, are to be informed
under the Act of what is being done.

Certain information must be given to the receiving agency. These
should only include the name and contact details of the person
making the disclosure if he or she consents.

The requirements for conducting an investigation are detailed. An
investigation within the courts may be undertaken by the Chief
Executive Officer or someone to whom he delegates relevant powers
and functions within the Administration of the courts.

The rules of procedural fairness apply to the conduct of an
investigation and, in particular, to protect the interests of a person
against whom any allegation is made. In the same way as attention is
to be given to the protection of the identity of a person making a
disclosure and to the protection of such a person against reprisals,
attention is also to be given to the extent necessary to the protection
of persons against whom allegations are made. Likewise, the
interests of the courts are to be protected. The Agency Guide states
that procedural fairness does not equate to a right to know the identity
of a person who has alleged that someone else has committed
wrongdoing. While this may generally be true, it cannot be
dogmatically asserted that it will always be true in all cases. In any
case where the requirements of procedural fairness appear to conflict
with the protections to be available to a person under the Act, an
authorised person or investigator must seek proper advice to resolve
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the issue.

An investigation report of an investigation under the Act must be
completed within 90 days of the date when the matter was allocated
from investigation. The Ombudsman may grant extensions of time if
more time is required.

It is a criminal offence for a person who has information obtained
conducting a disclosure investigation, or in connection of powers and
functions under Act, to disclose or use the information other than in
permitted circumstances.

Investigative processes must remain completely confidential both as
to the person making the relevant disclosure and any person
investigated.

Evidence of an offence may be disclosed to a relevant police force
and in the case of more serious matters, such disclosure is
mandatory.

The person making a disclosure must be kept informed of what is
happening.

A report of an investigation must be prepared and is to be given, with
certain deletions, to the person who made the disclosure. Where a
person against whom allegations have been made is aware of the
investigation, such a copy of the report should also be given to that
person.
For further information refer to the section ‘Allocating and Investigating’ in the
Agency Guide which forms part of these procedures.
Protection
available to
disclosers and
those about
whom
disclosures are
made
The confidentiality of people making disclosures must be maintained.
Key elements of the requirements are as follows:
 The identity of a person making a disclosure must be protected in
accordance with the Act. Failure to do so is a criminal offence.
 A risk assessment must be conducted when a disclosure is received
in order to consider whether the identity of the person making it can
readily be ascertained or may become likely during an investigation.
The risk assessment must also address the risk of reprisals against
the person.
 A person making a disclosure has a significant immunity from civil,
criminal or administrative liability to making the disclosure. However
the person making a disclosure may deprive himself or herself of that
immunity by knowingly making a statement that is false or misleading
or contravening certain other publication restrictions.
 The Act gives a person who makes a public interest disclosure legal
protection from reprisals through relevant criminal offences, a right to
apply for an injunction and a right to apply for compensation for loss,
damage or injury due to a reprisal. Reasonable administrative action
taken to protect a person making a disclosure from detriment, such as
a transfer to a different work area, is not a reprisal.
 An authorised person or person investigating a public interest
disclosure must consider, in addition to the protections to be afforded
to the person making the disclosure, the protections and support to
be given to a person or persons the subject of a disclosure. The risk
assessment to be undertaken in relation to the person who makes a
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disclosure must also include consideration of the risks in the situation
to the Administration of the courts and to each person against whom
allegations have been made. In such a risk assessment, the
necessary steps for the protection of those involved are to be
addressed.
For further information refer to the section ‘Support and protection’ in Agency
Guide which forms part of these procedures.
What happens at While what happens at the end of an investigation will vary with the
the end of an
circumstances, the principal officer must take appropriate action in response
investigation?
to recommendations and other matters contained in the investigation report.
These actions might include but are not limited to:






commencement of Code of Conduct proceedings under the Public
Service Act or another disciplinary process
referral of the matter to the police or another body that can take
further action
mediation or conciliation of a workplace conflict
an internal audit or other review of an issue or the operations of a
particular unit
implementing or changing policies, procedures or practices
conducting training and awareness sessions for staff.
For further information refer to the section ‘After the investigation’ in Agency
Guide which forms part of these procedures.
What happens if
the disclosure is
not
substantiated?
If a disclosure is not substantiated, due to insufficient evidence or other
reasons, the discloser should be given as much information as possible,
within confidentiality limitations, of the investigation. The discloser is still
protected under the Act and should be assured that the courts will continue
to support them.
Further
Information
Workforce and Policy Manager
02 6243 8625
Public Interest Disclosure Procedure
Approved By: Director, HR
Last Revised: December 2013
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