Public Interest Disclosure Standard 2013

Link to law: https://www.comlaw.gov.au/Details/F2013L02146

   
Public Interest Disclosure Standard 2013
Public Interest Disclosure Act 2013
I, COLIN NEAVE, Ombudsman, determine this Standard under section 74 of the Public Interest Disclosure Act 2013.
Dated        10       December 2013 
 
 
COLIN NEAVE
Ombudsman
 
 
Contents
Part 1                            Introduction
                        1             Name of standard                                                                    3
                        2             Commencement                                                                       3
                        3             Authority                                                                                    3
                        4             Definitions                                                                                 3
Part 2                            Procedures Relating to Disclosures
                        5             Contact details of authorised officers                                   4
                        6             Record of allocating the handling of a disclosure             4
                        7             Support for public officials                                                     4
Part 3                            Conduct of investigations
                        8             Application of Part                                                                   5
                        9             Initial information for disclosers                                            5
                      10             Conducting an interview                                                        5
                      11             Standard of proof                                                                     6
                      12             Evidence                                                                                   6
Part 4                            Reports of Investigations
                      13             Report of investigation                                                            7
Part 5                            Giving of information and assistance
to the Ombudsman
                      14             Application of Part                                                                   8
                      15             Information and assistance required by the
Ombudsman                                                                             8
 
 
 
 
 
 
 
 
 
Part 1              Introduction
 
1              Name of standard
                This standard is the Public Interest Disclosure Standard 2013.
2              Commencement
                This standard commences on the commencement of section 74 of the Public Interest Disclosure Act 2013.
3              Authority
                This standard is made under subsection 74(1) of the Public Interest Disclosure Act 2013.
4              Definitions
                         Note    Words and expressions that are used in the Act have the same meaning in this standard unless the contrary intention appears.  Some terms that are defined in the Act and are particularly important in this standard have been identified or reproduced below, and are indicated with an asterisk.
                In this standard:
Act means the Public Interest Disclosure Act 2013.
*disclosure investigation means:
                     (a)   an investigation under Part 3 of the Act; or
                     (b)   an investigation, in relation to a disclosure that is allocated under Division 1 of Part 3 of the Act, by an investigative agency under a separate investigative power.
*IGIS means the Inspector-General of Intelligence and Security.
Part 2              Procedures Relating to Disclosures
 
          Note  See paragraph 74(1)(a) of the Act.
5              Contact details of authorised officers
                The principal officer of an agency must ensure that the agency provides an effective means for potential disclosers to find out how to contact authorised officers.
                         Note    An agency could do this by providing a link on its public website to a list of its authorised officers, with contact details including email and postal addresses, and possibly phone numbers.  Agencies with security responsibilities might not be able to provide the names of the authorised officers on a public website, but would still be able to provide a means for contacting them.  
6              Record of allocating the handling of a disclosure
          (1)  The procedures established by a principal officer under subsection 59(1) of the Act must require that, when an authorised officer of the agency allocates the handling of a disclosure to one or more agencies, an appropriate written record is kept of:
                     (a)   the decision (including the name of each agency to which the disclosure is to be allocated); and
                     (b)   the reasons for the decision; and
                     (c)   the consent provided by the agency to which the allocation is made.
          (2)  The procedures must also require that:
                     (a)   the authorised officer informs a discloser of the matters mentioned in section 44 of the Act as soon as reasonably practicable; and
                     (b)   appropriate records are kept of whether the discloser was informed of the decision and, if so, of:
                                 (i)    the day and time the discloser was notified; and
                                (ii)    the means by which the discloser was notified; and
                               (iii)    the content of the notification.
7              Support for public officials
                The procedures established by a principal officer under subsection 59(1) of the Act must outline any support that will be made available to public officials who make disclosures relating to the agency.
Part 3              Conduct of investigations
 
          Note  See paragraph 74(1)(b) of the Act.
8              Application of Part
          (1)  This Part applies to a principal officer of an agency who is conducting an investigation of a disclosure under the Act.
          (2)  Despite subsection (1), in cases where a principal officer is required to act in accordance with the Commonwealth Fraud Control Guidelines when investigating a disclosure, this standard will apply only to the extent that it is not inconsistent with those Guidelines.
 
                      Note 1    The Commonwealth Fraud Control Guidelines are those made under regulation 16A of the Financial Management and Accountability Regulations 1997. Subsection 53(4) of the Act requires a principal officer to act in accordance with the Guidelines to the extent that an investigation of a disclosure relates to one or more instances of fraud against the Commonwealth.
                      Note 2    This standard does not apply where an agency that is an investigative agency for the purposes of the Act uses a separate investigative power as defined at section 49(2) of the Act.
                      Note 3    The principal officer must comply with this standard and all other applicable standards determined by the Ombudsman: see subsection 53(3) of the Act.
9              Initial information for disclosers
          (1)  The principal officer must ensure that a discloser is given information about the principal officer’s powers to:
                     (a)   decide not to investigate the disclosure; or
                     (b)   decide not to investigate the disclosure further; or
                     (c)   decide to investigate the disclosure under a separate investigative power.
          (2)  The principal officer must ensure that, where it is reasonably practicable to do so, the discloser is given the information within 14 days after the disclosure is allocated to the agency.      
10            Conducting an interview
          (1)  Subject to restrictions imposed by any other law of the Commonwealth, the principal officer must ensure that, if a person is interviewed as part of the investigation of a disclosure, the interviewee is informed of the following:
                     (a)   the identity and function of each individual conducting the interview;
                     (b)   the process of conducting an investigation;
                     (c)   the authority of the principal officer under the Act to conduct the investigation;
                     (d)   the protections provided by section 57 of the Act.
          (2)  The principal officer must ensure that:
                     (a)   an audio or visual recording of the interview is not made without the interviewee’s knowledge; and
                     (b)   when an interview ends, the interviewee is given an opportunity to make a final statement or comment, or express a position; and
                     (c)   any final statement, comment or position by the interviewee is included in the record of the interview.
11            Standard of proof
                The principal officer must ensure that a disclosure is investigated on the basis that a decision whether evidence is sufficient to prove a fact must be determined on the balance of probabilities.
                         Note    This is the standard applied in civil proceedings. Summarised broadly, a fact is taken to have been proved on the balance of probabilities if the principal officer is satisfied it is more likely than not that the fact is true.
12            Evidence
          (1)  The principal officer must ensure that a finding of fact is based on logically probative evidence.
                         Note    Summarised broadly, this is material that tends logically to prove the existence or non‑existence of a fact.
          (2)  The principal officer must also ensure that the evidence relied on in an investigation is relevant.
                         Note    Summarised broadly, this is evidence that:
                                            (a)     is of consequence to a matter under investigation; and
                                            (b)     makes the existence of a fact more probable or less probable than it would be without the evidence.
Part 4              Reports of Investigations
          Note  See paragraph 74(1)(c) of the Act.
13            Report of investigation
                A report under section 51 of the Act must, where relevant:
                     (a)   identify whether there have been one or more instances of disclosable conduct; and
                     (b)   identify any regulations, rules, administrative requirements or similar matters to which the disclosable conduct relates; and
                     (c)   explain the steps taken to gather evidence; and
                     (d)   set out a summary of the evidence, as well as any findings and recommendations made based on that evidence.
Part 5              Giving of information and assistance to the Ombudsman
 
          Note  See paragraph 74(1)(d) of the Act.
14            Application of Part
                This Part applies to the principal officer of an agency in relation to the preparation, under section 76 of the Act, of an annual report by the Ombudsman.
15            Information and assistance required by the Ombudsman
          (1)  The principal officer of an agency must provide the following information for the purpose of preparing the Ombudsman’s annual report under the Act:
                     (a)   the number of public interest disclosures received by authorised officers of the agency during the relevant financial year;
                     (b)   the kinds of disclosable conduct to which those public interest disclosures related;
                     (c)   the number of disclosure investigations that the principal officer of the agency conducted during the relevant financial year;
                     (d)   the actions that the principal officer has taken during the relevant financial year in response to recommendations in reports relating to those disclosure investigations;
                     (e)   any other information requested by the Ombudsman.
          (2)  The principal officer must provide the information within a time requested by the Ombudsman or as otherwise agreed with the Ombudsman.
                         Note    In the case of an agency for which the IGIS is responsible, the Ombudsman would make any request through the IGIS.
 
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