This policy outlines the arrangements and processes in the statutory entity, the Federal Court of Australia, for the operation of the Public Interest Disclosure Act 2013 (PID Act).

Date of effect: immediate

Employees affected: all staff of the entity.

Contact officer(s): Executive Director People, Culture and Communications, or any member of the Human Resources section.

Contents

1. Purpose
2. Application of the PID Act
3. What is a Public Interest Disclosure?
4. To whom can a PID be made?
5. Procedure for handling and investigating disclosures
6. Protections provided under the PID Act
7. Assessing the risk of reprisals and providing confidentiality – arrangements to protect employees from harassment and disadvantage
8. Managers and supervisors responsibilities
9. Review of process and outcome
10. Review of policy and questions

1. Purpose

The purpose of this policy is to outline how the PID Act will operate in the statutory entity, the Federal Court of Australia. The PID Act will cover employees engaged under the Public Service Act 1999 in the Federal Court of Australia, Family Court of Australia, Federal Circuit Court of Australia (courts) and the National Native Title Tribunal (NNTT).

The PID Act:

  • establishes a framework to encourage and facilitate the reporting of wrongdoing by public officials in the Commonwealth public sector
  • ensures that Commonwealth agencies will properly investigate and respond to reports of serious wrongdoing by Commonwealth public officials
  • provides protection (including civil and criminal immunity) to public officials who report, in accordance with the PID Act, allegations of wrongdoing in the Commonwealth public sector.

The PID Act and this policy complement other measures the courts and the NNTT have in place to maintain the highest standards of ethical and accountable conduct.

Staff and others covered by the PID Act are encouraged to use this policy to report any wrongdoing they encounter within the courts and the NNTT and other areas of the Commonwealth public sector.

2. Application of the PID Act

The PID Act applies to 'public interest disclosures' made by public officials. ‘Public officials’ for the purposes of the scheme covers persons working in, or with a relevant connection to, the Commonwealth public sector. This includes all APS entity heads and APS employees. Individual contracted service providers (contractors) to the Commonwealth and Commonwealth authorities are also considered public officials, and the employees of a contracted service provider to the Commonwealth or a Commonwealth authority are public officials if they provide services for the purposes of the contract.

3. What is a Public Interest Disclosure?

A disclosure of information is considered a public interest disclosure (PID) if the disclosure is made by a current or former public official and the information tends to show, or the official believes on reasonable grounds that the information tends to show, one or more instances of 'disclosable conduct'.

'Disclosable conduct' includes a wide range of wrongful conduct engaged in by an entity or a public official in connection with his or her position as a public official. It includes (but is not limited to) conduct that is:

  • corrupt
  • contravenes a law
  • perverts the course of justice
  • results in the wastage of public funds or property
  • an abuse of public trust
  • unreasonably endangers the health and safety of others
  • maladministration including conduct that is unjust, oppressive or negligent.

Disclosable conduct does not include disagreement with government policy, action or expenditure. Judicial conduct, conduct of court and NNTT staff exercising delegated judicial functions or powers, as well as other powers of the Court/NNTT and any other conduct relating to matters before the Court are also excluded, although other aspects of the management and administration of the courts’ registries and resources are included.

There are four types of PIDs under the PID Act: internal disclosures, external disclosures, emergency disclosures and legal practitioner disclosures. Generally public officials, including court/NNTT employees, should make an 'internal disclosure' in the first instance (either to an authorised officer or to their immediate supervisor or manager).

In certain circumstances, a disclosure may be made also as an external disclosure to an outside person or body, such as the Ombudsman.

4. To whom can a PID be made?

Employees of the courts and the NNTT can make a disclosure to their immediate supervisor or manager. Disclosures can also be made to:

  • Federal Court – any District Registrar of the Court
  • Family Court – Deputy Principal Registrar, any Regional Registry Manager, or any Registry Manager
  • Corporate Services – Executive Director Corporate Services or Executive Director People, Culture and Communications
  • Federal Circuit Court – Deputy Principal Registrar, Federal Circuit Court or any Registry Manager
  • National Native Title Tribunal – Deputy Registrar, National Native Title Tribunal, and
  • National Enquiry Centre – Manager, National Enquiry Centre.

Disclosures can also be made to the Chief Executive Officer and Principal Registrar (CEOs) of the Federal Court, Family Court and the Federal Circuit Court and the Native Title Registrar. These positions are authorised internal recipients of disclosures or ‘authorised officers’. Each CEO may appoint, in writing, other public officials within the entity to be authorised officers.

Authorised officers may be contacted by email as follows:

More information about the PID scheme is available from the Commonwealth Ombudsman website www.ombudsman.gov.au.

Disclosures can be in any form, including oral, but should ideally be in writing and accompanied by any supporting evidence. Disclosures do not have to make specific reference to the PID Act – it is sufficient for them to identify any matter that might constitute ‘disclosable conduct’.

A disclosure may be made anonymously. Anonymous disclosures supported by sufficient evidence to justify an investigation will also be handled in accordance with the procedures outlined in this policy.

5. Procedure for handling and investigating disclosures

Managers and supervisors receiving disclosures should refer the matter to an authorised officer without delay. This would generally be the authorised officer with responsibility for the relevant work group. Authorised officers must take appropriate action within 14 days of becoming aware of the disclosure. The PID Act requires the entity to maintain confidentiality of the person making the disclosure unless otherwise authorised by the person.

Once an authorised officer receives a disclosure, he or she will consider whether the matter warrants investigation, having regard to the PID Act. They may wish to first discuss the matter with the CEO, including possible arrangements for any investigation. Any decision not to investigate must be made in accordance with Section 48 of the PID Act (e.g. it is considered that the information does not, to any extent, concern serious disclosable conduct, the disclosure is frivolous or vexatious, or the information is the same or substantially the same as a disclosure that has been or is being investigated). The discloser must be notified accordingly.

Where the matter is considered to warrant investigation, the CEO or authorised officer may nominate an investigator. The CEO will inform the discloser that an investigation is to take place and the estimated length of the investigation. An investigation report must be completed within 90 days of the matter being allocated for investigation.

When the investigation is completed, the CEO will provide a report to the discloser, as set out in the PID Act (Section 51) and consistent with any associated requirements. Investigations into disclosures must address whether there may be a breach of the APS Code of Conduct and whether, in the event of a breach, misconduct proceedings should be considered.

The CEO or authorised officer will also ensure that any other requirements of the PID Act are addressed in relation to the matter including advices to the discloser and meeting timeframes imposed by the PID Act.

6. Protections provided under the PID Act

The PID Act provides the following protections for persons who make a PID:

  • The person will not be subject to any civil, criminal or administrative liability for making the disclosure (although this immunity does not apply where a designated publication restriction is contravened without reasonable excuse or where the disclosure is knowingly false or misleading).
  • No contractual or other remedy may be enforced or sanction imposed on the person on the basis of making the disclosure.
  • The person has absolute privilege (for the purpose of defamation proceedings) in respect of a public interest disclosure.
  • A contract to which the person is a party must not be terminated on the basis that the disclosure constitutes a breach of contract.
  • It is a criminal offence for a person to take, or threaten to take, reprisal action against a person who has made, or who is thought to have made, a public interest disclosure.
  • Other remedies, including compensation and injunctions, may also be available in respect of reprisal actions under the PID Act or the Fair Work Act 2009 (although an application may only be made under one Act).
  • The general workplace protections offered by Part 3-1 of the Fair Work Act 2009 will apply in relation to the making of a public interest disclosure by a public official who is an employee within the meaning of that Act.
  • It is a criminal offence to reveal the identity of a discloser without their consent.
    Authorised officers may need to point out that it may not, however, be possible to fully investigate a matter without consent to identify the discloser and that, while utmost care may be taken, others may guess at the identity of the discloser.

These protections do not necessarily protect the discloser in relation to their own wrongdoing, where they have been involved in the misconduct they are reporting.

These protections are also not available to staff who make intentionally false or misleading disclosures.

7. Assessing the risk of reprisals and providing confidentiality – arrangements to protect employees from harassment and disadvantage

The CEO or authorised officer will assess the possible risk of reprisal and take appropriate action to ensure that disclosers are not disadvantaged and do not suffer harassment as a result of the disclosure. Where necessary, this can be done with reference to guidelines on the Commonwealth Ombudsman’s website. Appropriate measures may include:

  • investigating all allegations of harassment independently
  • taking appropriate follow-up action
  • taking action to ensure the employee making the report is not disadvantaged, e.g. is not denied access to their entitlements, rights or development opportunities
  • in the event that a reporting employee may experience, or perceive to have experienced, disadvantage as a result of their report, the Court will take appropriate action to address their concerns
  • providing other forms of support or protection that may be appropriate in the circumstances, e.g. counselling
  • ensuring appropriate steps are taken to minimise any physical threat to the employee, their family or property, and/or
  • providing and maintaining the confidentiality of the informant, as far as practicable.

8. Managers and supervisors responsibilities

Managers and supervisors who receive disclosures must refer the matter immediately to the relevant authorised officer. Allegations concerning authorised officers should be referred direct to the CEO or another authorised officer.

Employees who make reports must be kept informed of the status of investigations, having regard to the statutory requirements of the PID Act (for example, to whom the matter has been referred, the status of investigations etc.).

9. Review of process and outcome

Employees and others, who are not satisfied with the review process or the outcome of an internal investigation, may pursue a complaint with the Commonwealth Ombudsman.

The Ombudsman may also investigate matters referred directly to the Ombudsman’s Office.

10. Review of policy and questions

This policy will be reviewed as required, for example, where the PID Act is amended.

Questions on the policy should be directed to the Executive Director People, Culture and Communications in the first instance.