Corruption and misconduct post-1 July under the Public Interest Disclosure Act and the National Anti-Corruption Commission

The changes to the Public Interest Disclosure Act 2013 (Cth) (PID Act) are part of a series of sweeping reforms to Commonwealth integrity and ongoing focus on integrity issues which underpin the policy platform of the current Government. The Public Interest Disclosure Amendment (Review) Act 2023 (Amendment Act) alongside the commencement of the National Anti-Corruption Commission (NACC) aims not only to complement this new Commonwealth integrity institution, but also to address the recommendations from the Moss Review into the PID Act undertaken in 2016.

Disclosable conduct and personal work-related conduct

One of the most frequent criticisms of the PID Act is that it is often used as a mechanism for employees to air grievances that would be better dealt with by internal misconduct procedures. The Amendment Act will seek to address this problem by amending the definition of disclosable conduct to specifically carve out personal work-related conduct from the definition of disclosable conduct.

The definition of personal work-related conduct will be set out in new section 29A of the PID Act and will exclude matters such as interpersonal conflict, bullying, harassment and decisions relating to disciplinary action or the transfer or promotion of an employee. Such matters could not be considered disclosable conduct under the PID Act unless the conduct is reprisal action or has significant implications for an agency, such as by undermining public confidence in the agency. What this means in practice, and how agencies apply this threshold, remain to be seen.

Disclosable conduct: how serious must it be?

For work-related conduct to be considered disclosable conduct under the PID Act, it must now be sufficiently serious that, if proved, it could give reasonable grounds for termination of the official's employment. This raises the bar from the existing threshold, which included in the definition of "disclosable conduct" that the conduct might result in disciplinary action.

Similar to the new carve-out for personal work-related conduct, this exception to the definition of disclosable conduct will require agencies to exercise a level of discretion in determining whether conduct is likely to give reasonable grounds for termination, particularly noting that breach of the APS Code of Conduct is an allowable termination ground under the Public Service Act 1999 (Cth). Agencies, particularly authorised officers who are responsible for determining if a complaint is a public interest disclosure (PID), should start thinking now about how they will apply this standard.

Extension of protections to witnesses

Part 3 of the Amendment Act adds clarity around the protections afforded to witnesses who are involved in a PID, but are not themselves the discloser. Specifically, it:

• extends the immunity provisions to individuals who "provide assistance in relation to a public interest disclosure". Any individuals who give information, produce documents or answer questions in relation to all aspects of the PID process are now protected from any civil, criminal or administrative liability because of the assistance they provide; and
• expressly extends protection from reprisal action to witnesses in section 13 of the PID Act. This plugs an obvious drafting gap that had been a feature of the PID Act since its inception in 2013 whereby witnesses were not protected from reprisal action. From a practical perspective however, we've seen most agencies already monitoring the possibility of reprisal action against witnesses as well as disclosers, even without an express obligation to do so up until now; and
• adds to the non-exhaustive definition of reprisal action to expressly identify specific instances of conduct. While this amendment adds some clarity, it is likely that the broad definition that was already contained at section 13(2) would have covered the conduct now expressly provided for.

New section 12B sets out a number of exceptions to witnesses' immunity, including if the witness provides a knowingly false or misleading statement. However, perhaps the most consequential exception is contained in 12B(5), which does not extend immunity to witnesses in circumstances where the assistance they provide relates to their own conduct. Practically, this means that agencies are not precluded from taking disciplinary action (for example under the APS Code of Conduct) against witnesses who provide evidence for the purposes of a PID investigation in which their conduct is impugned.

Extension of obligations on Principal Officers, Authorised Officers and Supervisors

The Principal Officer is the Secretary of a department or the Chief Executive Officer (however described) of an Executive Agency. Section 59 already contained a number of obligations imposed on the Principal Officer ancillary to their primary duties of investigating PIDs.

The Amendment Act adds to these to now include:

• a positive obligation to ensure the making of PIDs are supported and encouraged;
• a positive obligation to protect public officials from reprisal; and
• an obligation to take reasonable steps to provide ongoing training and education to:
  • all public officials they are responsible for on (amongst other things) how to make a PID and the protections available to them; and
  • authorised officers and supervisors to ensure they are aware of their requirements under the Act in regards to the functions, duties or powers conferred on them. Such training must be undertaken "within a reasonable time after [their] appointment."

Principal Officers are not alone in receiving more obligations under the Amendment Act. Authorised Officers and Supervisors also have additional obligations imposed on them by the Amendment Act, including:

• for authorised officers:
  • a duty to protect public officials against reprisal; and
  • a duty to advise potential disclosers about the circumstances under which their disclosure might be referred to another agency;
• for supervisors:
  • obligations to explain to a discloser that information they've provided may be a PID, and how that process works; and
  • a requirement to pass on a potential PID to the authorised officer as soon as reasonably practicable.

As a result of these amendments, it is now more important than ever that agencies ensure their authorised officers and supervisors are aware of their obligations under the Act.

Interaction with the NACC

Another big question being asked about the Amendment Act is how the amended PID Act is designed to integrate with the NACC (if at all). If you're not yet familiar with the NACC, we recommend reading our helpful introduction to the NACC.

The Amendment Act includes a new form of PID: a "NACC disclosure". This term is defined in the National Anti-Corruption Commission Act 2022 (Cth) (NACC Act) and covers the scenario where information about a corruption issue is provided to the NACC, either because a person refers the issue to the NACC or because a person provides information or evidence to the NACC under the NACC Act.

It is significant that a NACC disclosure only applies to information about a "corruption issue". This term is defined in the NACC Act to be an issue of whether a person has, is or will engage in "corrupt conduct" (section 9 of the NACC Act). "Corrupt conduct" has a broader definition, but in summary includes:

• conduct of any person which might adversely affect the honest and impartial exercise or performance of a public official's powers, functions or duties;
• conduct of a public official involving a breach of public trust;
• conduct of a public official which is an abuse of that person's office; and
• misuse of information or documents by a public official or former public official.

Some of this terminology mirrors language used in the definition of "disclosable conduct" from the PID Act, particularly conduct which is abuse of office or public trust. This has led many agencies to question when a complaint is made concerning conduct that falls within both the definition of corrupt conduct for the purposes of the NACC Act and disclosable conduct for the PID Act, which one should they allocate the complaint to?

The simple answer is that the NACC Act makes it mandatory for agency heads to refer "serious or systemic" corrupt conduct by a current or former staff member to the NACC (section 33 of the NACC Act). The NACC Act and PID Act then set out a process whereby the NACC can issue a "stop action direction" which prevents the agency taking any further action in relation to a corruption issue identified in a PID. This avoids a scenario where both the NACC and an agency are investigating the same issues under two frameworks.

Like the exceptions to the definition of disclosable conduct, determining when a corruption issue is serious or systemic will involve a level of discretion by agencies. Helpfully, the NACC has published guidance on this issue, which agencies should carefully consider ahead of 1 July.