New Legislation for Protecting Whistleblowers in SA


From 1 July 2019, Australia’s corporate whistleblower scheme will be strengthened to enhance protection for persons who disclose sensitive tax and corporate information in certain circumstances.

This training brochure applies to all South Australian public sector organisations.

Public Interest Disclosure Act 2018 No. 26 (SA)

The Public Interest Disclosure Act 2018 No. 26 (SA) (the Act) commenced on 1 July 2019 and has made related amendments to the Local Government Act 1999 (SA), the Public Sector Act 2009 (SA) and repealed the Whistleblowers Protection Act 1993 (SA).

Background

The Act is designed to encourage and facilitate disclosures of certain information in the public interest by establishing and enforcing procedures for making and dealing with public interest disclosures. The Act emphasises protection for persons making public interest disclosures.

Duty to act in relation to appropriate disclosures

Section 7 of the Act states a person to whom an appropriate disclosure of public interest information is made must assess the information as soon as practicable, and following such assessment must take action in relation to the information in accordance with any applicable Guidelines set by the office of the Independent Commissioner against Corruption (the Guidelines). If no applicable Guidelines exist, such action as is appropriate in the circumstances must be taken.

The person must also take reasonable steps to notify informants (if the informant’s identity is known) of action being taken in relation to a disclosure. The Office for Public Integrity must further be informed of the disclosure and outcomes of any action in accordance with the Guidelines.

If a Minister of the Crown refers a disclosure to a relevant authority (which includes the responsible officer of a public hospital appointed by the CEO to handle disclosures), the relevant authority must deal with the information as if the disclosure had been made directly to them under section 7. The relevant authority must notify the Minister of any action taken and outcomes in relation to the disclosure.

“Public interest information” means environmental and health information or public administration information.

“Appropriate disclosures” include:

  • disclosures of environmental and health information made to a relevant authority and the person believes on reasonable grounds that the information is true or may be true and is of sufficient significance to justify investigation;
  • disclosures of public administration information made to a relevant authority and the person reasonably suspects that the information raises a potential issue of corruption, misconduct or maladministration in public administration.

Keeping informant’s identities confidential

Under section 8 of the Act, persons who receive an appropriate disclosure of public interest information (directly or by referral) must not, without the consent of the informant, divulge the identity of the informant, except so far as may be necessary to ensure the matter is properly investigated or in accordance with the Guidelines.

The maximum penalty for breach of this provision is $20,000 or 2 years imprisonment.

Preventing or hindering disclosures and victimisation

A person must not prevent, hinder or obstruct another from making an appropriate disclosure of public interest information under the Act. If a person does make, or intends to make, a disclosure under the Act, it is an offence to cause detriment to them for having done so (and detriment involves discrimination, disadvantage or adverse treatment, among other things).

The maximum penalty for either offence is $20,000 or 2 years imprisonment.

Officer duties

Section 12 of the Act specifies that a “principal officer” (i.e. the chief executive officer of a public hospital) must ensure:

  • 1 or more officers or employees of a public sector organisation are designated as responsible officers of the organisation for the purposes of receiving disclosures under the Act;
  • the name and contact details of each responsible officer of the organisation are made available to officers and employees of the organisation;
  • a document setting out procedures for making and receiving public interest information disclosures is prepared and maintained in accordance with the Guidelines, which must:
    • include clear obligations on the organisation and its employees to take action to protect informants; and
    • include risk management steps for assessing and minimising detriment in relation to a disclosure; and
    • be made available free of charge on the Internet, and at premises determined by the responsible Minister, for inspection by members of the public.

Section 13 of the Act specifies that a responsible officer for the organisation must:

  • receive appropriate disclosures of public interest information relating to the organisation and ensure compliance with the Act in relation to such disclosures; and
  • make appropriate recommendations to the principal officer of the organisation in relation to dealing with such disclosures; and
  • provide advice to officers and employees of the organisation in relation to the administration of the Act.

Conclusion

Public sector organisations in South Australia should ensure all relevant employees are aware of their rights and obligations relating to public interest information disclosures. Organisations should have systems in place to receive and manage disclosures of public interest information in order to ensure protection of employees making such disclosures and compliance with the Act. For further details, see the SA – Public Interest Disclosure topic.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au