What is a public interest disclosure?

A public interest disclosure (PID) is a protected complaint about serious wrongdoing in the public sector which is recognised by the Public Interest Disclosure Act 2010 (PID Act). The term ‘whistleblowing’ is often used.

For an allegation to be considered a PID it must meet the following criteria:

be an ‘appropriate disclosure’ -
- based on an honest and reasonable belief; or
- objective evidence showing the wrongdoing
of public interest information about a type of serious wrongdoing or danger covered by the PID Act
made to a proper authority
- a person or entity with the power and responsibility to deal with the wrongdoing.

Why make a public interest disclosure?

When wrongdoing goes unreported it can:

have harmful impacts on the quality and delivery of public services
negatively impact public sector employees
reduce trust in government services
cost public entities and taxpayers time and money.

The PID Act encourages the disclosure of information about suspected wrongdoing in the public sector so public entities can:

better identify wrongdoing
properly evaluate and investigated suspected wrongdoing
take early action to fix problems
implement systems to reduce the risk of wrongdoing
ensure those making PIDs are supported.

An effective system for dealing with PIDs helps to safeguard the integrity of Queensland’s public sector.

What is an appropriate disclosure?

An appropriate disclosure is where:

the discloser has an honest and reasonable belief that the information provided tends to show the conduct or danger; or
the information tends to show the conduct or danger regardless of the discloser’s belief.

To be an appropriate disclosure, it must be more than a mere suspicion, generalised criticism or bald allegations and include sufficient information, such as:

What happened?
Where did the events take place?
When (time and date) did the events take place? Providing a timeline for multiple events and detail of any relevant connections.
Who was involved?
Why you believe there is wrongdoing - what laws/ policies/ procedures haven’t been followed?
Were there any witnesses? If so, what are their details?
Any knowledge or reference to supporting information or documents that help understand or support the disclosure.
Any action that has been taken to resolve the disclosure.

Note - The discloser is not required to undertake any investigative action before making a disclosure and does not need to provide any evidence.

A discloser with a genuine and reasonable belief will continue to be protected under the PID Act, even where the wrongdoing is not substantiated. This allows for genuine misinterpretations of information to fall within the scope of the PID Act.

What can a PID be about?

Under sections 12 and 13 of the PID Act, only some kinds of information are 'public interest disclosures'.

For a disclosure to be a PID, it must fit into a type of information recognised by the PID Act. If it doesn’t, it may be dealt with by the entity’s complaints handling process.

PIDs by anyone

Any person, including a public sector officer, can make a public interest disclosure about a:

substantial and specific danger to the health or safety of a person with a disability
substantial and specific danger to the environment caused by an offence or breach of environmental laws listed in Schedule 2 of the PID Act
reprisal where someone attempts to cause harm or damage because they believe a PID has been made or is about to be made.

PIDs by public officers

In addition to the types of PIDs listed above, a public sector officer can also make a PID about:

corrupt conduct
maladministration
a substantial misuse of public resources
a substantial and specific danger to public health or safety
a substantial and specific danger to the environment.

Who is a proper authority?

Proper authorities are persons and entities authorised under the PID Act to receive public interest disclosures.

It is important that PIDs are made to those with the power to deal with and where appropriate action the alleged wrongdoing.

Examples of proper authorities include:

The public sector entity responsible for the actioning wrongdoing - for example where the disclosure is about the conduct of that entity or its employees.
An agency with the authority to investigate the matter - for example, the Crime and Corruption Commission is a proper authority for disclosures about corrupt conduct.
The Chief Judicial Officer of a court or tribunal when the report is about suspected corrupt conduct or reprisal by a judicial officer.
Any Member of the Queensland Parliament (an MP) - note an MP cannot investigate or deal with a PID and typically refer the matter to the proper entity.

What to expect when the disclosure is a PID - Rights and responsibilities

Disclosers are entitled to:

receive written acknowledgment of the PID
be advised of action and results of any action taken in response to the PID
be provided with support and regular contact
be protected against reprisal
have their confidentiality preserved - noting there are some lawful exceptions for disclosure
immunity from liability and disciplinary action, for a statutory or administrative breach, where the breach occurred for the purpose of reporting the wrongdoing
protections from actions in defamation - generally a person has a defence for the information provided when making a PID
reasonable information about the action taken as a result of making a disclosure. This includes information about the action proposed and, if action is taken, the results of that action.

The protections of the PID Act start when the three PID requirements are met (appropriate disclosure, of public interest information, made to a proper authority) and continue indefinitely, even if the PID is not substantiated.

Public sector entity chief executive officers have obligations to ensure public officers who make a disclosure are supported and offered protection from reprisal. The PID Act also makes public sector entities legally responsible for reprisal action of its employees. Entities can avoid liability by demonstrating they took reasonable steps to prevent the reprisal.

Disclosers also have a responsibility to:

not make false or misleading PIDs
observe the confidentiality obligations
comply with their agency’s code of conduct.

A discloser’s liability for their own conduct is not affected by making a PID and a discloser may still be subject to reasonable management action, as long as the reason for the management action is not because they made the PID.

Subject officers have rights and responsibilities too. The PID Act states that appropriate consideration be given to the interests of alleged wrongdoer. Not all PIDs are substantiated and sometimes are made with an honest but mistaken belief. It is important that all public sector officers are treated fairly.

Are PIDs confidential?

Generally, yes. Under the PID Act it is an offence to disclose ‘confidential information’ connected to a PID without a lawful reason.

Preserving confidentiality is important for all parties involved in a PID process. It assists in reducing the risk of reprisal, preserves the reputation of alleged wrongdoers when PIDs are not substantiated PID, and maintains the integrity of PID investigations.

Under the PID Act, confidential information includes identifying information about the discloser/s, alleged wrongdoer/s, and witnesses involved in the process, and details about the PID (the subject matter). There are some circumstances where the disclosure of confidential information is allowed, such as:

if it is required under the PID Act
if it is required under another Act
for a proceeding in a court or tribunal
to protect the health or safety of a person
if the person to whom the confidential information relates agrees in writing
if it is essential under the principles of natural justice and only if reprisal is unlikely.

Potential disclosers should:

seek advice from the agency’s PID Coordinator (the person responsible for dealing with PIDs within that agency), or from the Ombudsman.
exercise discretion in who they talk to.
be careful deciding who they report to and how they report. To be protected under the PID Act the PID must be made to specific people (proper authority) - Information about this will be in the agency’s PID procedure.
keep records of conversations and written communications received and sent related to the report.
not make intentions to report known in the workplace. (for example, threatening to report). Providing information discreetly allows agencies to focus on the issues rather than the discloser and assists with integrity of process.

Can I make a PID to a journalist?

Yes, but only in limited circumstances.

The PID Act allows for someone to make a disclosure to a journalist, but only when:

a valid PID of the same information has already been made to a proper authority, and
the proper authority:
- decided to not investigate, or deal with the disclosure
- investigated, but did not recommend any action be taken
- failed to notify the person within 6 months of their making the disclosure whether the PID would be investigated or dealt with.

If the above conditions are met, a person will continue to receive the protections of the PID Act - as long as the information given to the journalist is substantially the same as the original PID.

Be aware journalists are not bound by the PID Act’s confidentiality obligations - so a person disclosing to a journalist may lose their confidentiality.

Also, a person who does not meet the above conditions before going to a journalist may risk breaching the Act’s confidentiality obligations and be subject to reasonable management action or other administrative action.