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Norman Waterhouse

Draft PID Guidelines released: Consultation closes 5 April 2019

Regular readers, and anyone who has attended one of our briefing sessions on the subject, will be aware of the significant and imminent changes to how ‘whistleblower’ disclosures will need to be handled. Now, the commencement of the Public Interest Disclosure Act 2018 (SA) (PID Act) is one step closer, with the Independent Commissioner Against Corruption (ICAC) having released a draft of proposed guidelines under Section 14 of the PID Act, for public consultation (Draft PID Guidelines).

Even though they will be called ‘guidelines’, the final document will in fact impose mandatory obligations. The consultation period for the Draft PID Guidelines closes on 5 April 2019. Because the PID Act affects everyone in local government (we mean this not just figuratively—every single council member and council employee can have personal obligations under the PID Act), we encourage all readers to become familiar with the document (available here).

Given that the consultation period is still open, we now provide some of our particular comments on the document.

1. Notifications to OPI — a new administrative burden

Under the PID Act, councils must provide the Office for Public Integrity (OPI) with information in respect of every ‘appropriate disclosure of public interest information’ which it receives.

In practice, all sorts of matters—such as complaints and tip-offs regarding public health matters, environmental matters and suspected misconduct or maladministration (even if not serious or systemic)—will attract this obligation to notify OPI.

The Draft PID Guidelines propose the establishment of an online portal system and prescribe quite a large amount of information which must be reported via this portal. Given the range of everyday matters which may attract notification obligations under the PID Act and guidelines, it is possible that this will create quite a significant administrative burden.

2. Councils not required to adopt procedures

The Draft PID Guidelines say that ‘Each relevant authority will have its own procedures in relation to receiving public administration information.’ This is not necessarily correct for councils. Unlike the case for public sector agencies, Section 12(4) of the PID Act does not require councils to adopt procedures.

However, it is certainly a good idea for councils to adopt procedures. Proper procedures will help ensure that disclosures are directed to the most appropriate persons within council in the first instance. They will also give all employees and council members who receive disclosures a framework to assist them to discharge their personal obligation to take action and/or communicate information to other appropriate persons to ensure the matter(s) the subject of the disclosure is properly addressed.

3. Who is ‘responsible for the management or supervision’ of CEOs and council members?

While the Draft PID Guidelines do a number of things, the ICAC has notably declined the invitation at Section 5(5)(a)(i) of the PID Act to designate persons who are taken to be responsible for the management or supervision of any particular public officers. As a result, some public officers—such as council CEOs and council members—are left without any obvious candidate as the person responsible for their management or supervision, for the purposes of the PID Act.

A person may of course make a disclosure about the CEO or a council member to the council’s responsible officer/s or any other ‘relevant authority’ under the PID Act (e.g. the Ombudsman, a Minister, the OPI, and others), but we are nevertheless surprised that no designations of persons under Section 5(5)(a)(i) of the PID Act are proposed.

4. Confidentiality of identity — unconstitutional enforcement problems?

The PID Act provides that a person’s identity may be disclosed ‘so far as may be necessary to ensure that the matters to which the information relates are properly investigated’. Sometimes, this will mean that a complainant’s identity can be disclosed in the course of investigation. However, in other cases, the disclosure of the identity of the complainant might not truly be necessary to investigate a matter.

This leads to an issue where a council, after an investigation is complete (such as an investigation regarding littering, nuisance, food standards breaches, public health issues, or other similar matters), might then not be able to adduce evidence from a complainant in subsequent prosecution proceedings. While guidelines under the PID Act could address this issue, the Draft PID Guidelines do not address the issue. So long as this issue remains unaddressed, we think there is a serious argument that this purported fetter on the ability to progress prosecution matters in the Courts is unconstitutional.

5. Inclusion of ICAC directions

In connection with preparing the Draft PID Guidelines, the ICAC has taken the opportunity to also propose new directions for the making of mandatory reports by public officers under the Independent Commissioner Against Corruption Act 2012 (SA) (Draft ICAC Directions). The Draft PID Guidelines and Draft ICAC Directions are combined in one document.

The Draft ICAC Directions contain some changes when compared with the existing directions. It will no longer be necessary for a reasonable suspicion to be underpinned by a ‘factual’ basis; simply a ‘rational’ basis will do. This will increase the circumstances in which an officer’s obligation to report is enlivened.

Also, the obligation to report matters ‘as soon as practicable’ is removed. However, in practice, if an obligation to report arises by virtue of a disclosure which is covered by the PID Act, an officer will have an obligation to notify the OPI of that disclosure as soon as practicable anyway.

While the Draft PID Guidelines and Draft ICAC Directions are necessarily interrelated, we must wait to see the online portal before it is clear whether a report under each scheme can be made in the same online form, or if two different reports will need to be made under the two schemes.

We encourage councils to use the present opportunity to make submissions upon the Draft PID Guidelines and the Draft ICAC Directions. Once final guidelines are in place and the PID Act regime has commenced, we look forward to assisting councils to navigate this significant new statutory framework.

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