Amendments to the Public Interest Disclosure Guidelines and Model Procedures

New public interest disclosure procedures to be submitted by large public bodies to Ombudsman Tasmania for approval by 26 February 2021

The Ombudsman has recently issued new Public Interest Disclosure Guidelines and Model Procedures under the the Public Interest Disclosures Act 2002 (Tas) (the Act).  The Act provides that public officers, contractors and in limited circumstances, members of the public can make disclosures about the improper conduct of public officers or public bodies.

Public Interest Disclosure Guideline One – Serious or Significant Improper Conduct (Issued: 25 November 2020) (Guideline One) was issued by Ombudsman Tasmania under section 38(1)(f) of the Act. The purpose of this Guideline is to assist users of the Act to determine whether the alleged conduct or misconduct is ‘serious or significant’.

Public Interest Disclosure Guideline Two – Procedures for Public Bodies (Issued: 25 November 2020) (Guideline Two) and the annexed Public Interest Disclosure Model Procedures (Model Procedures) replace the previous Guidelines and Standards published by the Ombudsman under section 38(1)(c) of the Act in November 2003, March 2011 and March 2019.

All public bodies are required under section 60 of the Act to develop and publish procedures to manage public interest disclosures which comply with the Ombudsman’s Guidelines and Standards.

All large public bodies must submit their procedures to the Ombudsman for approval on establishment and then at least every 3 years.  Large public bodies will need to submit their new public interest disclosure procedures to the Ombudsman by 26 February 2021 which comply with Guideline Two and Model Procedures.

Guideline One – Serious or Significant Improper Conduct

Some of the factors which may be relevant in considering whether alleged conduct or misconduct is ‘serious or significant’ include:

  • whether the conduct or misconduct involves a crime or an offence which carries a significant penalty;
  • whether the conduct or misconduct might merit serious disciplinary or other consequences, if proven;
  • the level of trust, confidence or responsibility to which the public officer who is subject to the allegation has;
  • the amount or potential amount of money involved; and
  • the harm or potential harm associated with the conduct or misconduct.

Guideline Two – Procedures for Public Bodies

Some key matters covered by Guideline Two and the new Model Procedures include:

Key requirements for procedures: Procedures developed by a public body must now include the following:

  • details of the name(s) and duties of the public body’s Public Interest Disclosure Officer(s);
  • the requirement for a risk assessment (in the form of the new Risk Assessment Template attached to the Model Procedures) to be completed as soon as possible after a disclosure has been assessed as being protected under the Act, and identifies:
    • any potential reprisal risks; and
    • appropriate risk mitigation action to be implemented.
  • a support plan which details the protection and support to be provided to the discloser and witnesses (if any); and
  • if covered by the Commonwealth public interest disclosure regime under the Corporations Act 2001 (Cth), an explanation of the intersection between the Commonwealth and Tasmanian whistleblowing and public interest disclosure schemes.

Welfare Manager’s appointment and role: The appointment of a Welfare Manager must occur within five working days of the protected disclosure being received and the Welfare Manager must contact the discloser not more than five working days after being appointed. Further, the Welfare Manager must not be responsible for assessing or investigating the discloser (i.e. the person appointed as Welfare Manager must not also be the Principal Officer or a Public Interest Disclosure Officer).

New templates: The following templates have been provided by the Ombudsman (and attached to the Model Procedures):

  • Assessment of disclosure form: This form is to assist in assessing whether a protected disclosure is a ‘public interest disclosure’ under section 64 of the Act; and
  • Ombudsman Notification template: This form must be used to provide notice to the Ombudsman where an investigation by the Principal Officer or Public Interest Officer (as applicable) concludes that the disclosed matter will not be investigated (i.e. where it is established that the disclosed conduct did not occur).

More information

If you would like more information or assistance to prepare or amend your public interest disclosure procedure or whistleblowing policy, please contact:

Kathryn Speed
Principal
M: 0408 446 013
E: kspeed@pageseager.com.au

Lara Henley
Lawyer
T: (03) 6235 5912
E: lhenley@pageseager.com.au

Published: 20 January 2021

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