The NAIF’s Public Disclosure Policy applies to all public officials under the Public Interest Disclosure Act and includes all current and former employees of the NAIF. The Policy sets out:
(a) who can make a public interest disclosure
(b) what can be reported
(c) how a public interest disclosure can be made
(d) NAIF policy on how a public interest disclosure will be investigated
Public interest disclosures
Who can make a public interest disclosure?
A current or former “public official” can make a public interest disclosure. A “public official” is defined in the Public Interest Disclosure Act and includes any person who is or was employed or appointed by the Australian Government, staff of Commonwealth companies, Commonwealth authorities and statutory agencies, the Parliament Service, statutory officeholders and service providers under a Contract to the Commonwealth, and includes all current and former NAIF employees and directors.
What can be reported?
A current or former public official can disclose information that they believe on reasonable grounds tends to show “disclosable conduct”.
How a public interest disclosure can be made
Disclosures to NAIF
Generally public officials should make a disclosure to NAIF in the first instance.
A public official can make the disclosure in person, by telephone or in writing, including by email. The disclosure can be made either to the discloser’s supervisor (for current employees), the CEO or to an authorised officer.
The discloser can remain anonymous although NAIF has the discretion not to investigate if the NAIF is unable to progress an investigation because it cannot contact the discloser to seek further information.
An ‘external disclosure’ to another person or body (including to the media, but excluding a foreign public official) will only be justified when:
- an internal disclosure to NAIF has previously been made;
- where the person believes the investigation was inadequate or NAIF’s esponse to the investigation was inadequate
- the disclosure would not be on balance contrary to the public interest
- the disclosure does not relate to intelligence information or an intelligence agency
- only information reasonably necessary to identify the wrongdoing is publicly disclosed
In addition, if the discloser believes on reasonable grounds that it is appropriate for the Commonwealth Ombudsman to investigate instead of NAIF, the person can make their disclosure directly to the Ombudsman.
In certain circumstances a discloser can make an emergency disclosure to a party external to NAIF, where the person believes on reasonable grounds the information concerns a substantial and imminent danger to the health or safety of a person or people or the environment.
Legal Practitioner Disclosures
A person can make a disclosure to an Australian legal practitioner for the purpose of obtaining legal advice in relation to making a public interest disclosure.
Assessment of risks of reprisal
As soon as possible after a disclosure is received, an authorised officer must assess risks that reprisal may be taken against a person who makes a public interest disclosure. If the disclosure is made to the manager or supervisor and the person wishes their identity to remain anonymous, the manager or supervisor must conduct a risk assessment as soon as possible after the disclosure is made.
The person assessing the risk, in consultation with the NAIF S, will plan and implement strategies to control the risks of reprisals or related workplace conflict. Where possible, the discloser will be consulted before any decision is made.
The risk assessment should be monitored and reviewed by the risk assessor as necessary including by checking with the discloser to see if reprisals have been made or threatened.
NAIF will make every reasonable effort to protect the discloser’s identity, where requested.
However, the discloser’s identity, or information that would effectively identify them, may need to be disclosed to certain other people if that is necessary:
- to investigate the disclosure effectively (for example, if the wrongdoing that was reported was directed solely against the discloser), or
- to protect them against reprisals (for example, if there are concerns that it is impossible for them to remain in their current workplace).
If it is necessary or highly likely that the discloser’s identity will be revealed, NAIF will, unless it is not reasonably practicable, discuss this with the discloser before proceeding.
Protections provided to the discloser
The Public Interest Disclosure Act provides the following protections for persons who make a public interest disclosure:
- The person will not be subject to any civil, criminal or administrative liability for making the disclosure.
- 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.
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.
NAIF will investigate all disclosures which contain enough information to support further enquiry.
The principal officer is responsible for conducting an investigation and may delegate those powers and functions by an instrument.
Investigations under the Public Interest Disclosure Act will be conducted by an independent investigator skilled in conducting investigations, and familiar with the Public Interest Disclosure Act and any standards as required, especially the confidentiality requirements and the protections for the discloser.
The principal officer must take appropriate action in response to a recommendation and other matters contained in the investigation report.
Record keeping and reporting
The NAIF must securely keep records of how and when a public interest disclosure was made. Each disclosure should be given a unique reference number. Details of the risk assessment of reprisal, allocation, the investigation, notification to the discloser and others will also be kept.
The following details will be disclosed to the Commonwealth Ombudsman as required under the Public Interest Disclosure Standard 2013:
- the number of public interest disclosures received by authorised officers of NAIF during the relevant financial year
- the kinds of disclosable conduct to which those public interest disclosures related
- the number of disclosure investigations that the principal officer of NAIF conducted during the relevant financial year
- the actions that the principal officer took during the relevant financial year in response to recommendations in reports relating to those disclosure investigations
- any other information requested by the Ombudsman
Keeping the discloser informed
The discloser will be notified at various stages in the process, provided the person’s contact details are available. The discloser must be advised:
- when the disclosure is either allocated for investigation, or not allocated because it has been determined not to be an internal disclosure
- of information about the principal officer’s discretionary powers to not investigate within 14 days of the disclosure being allocated
- if NAIF decides to investigate under the PID Act, the estimated length of the investigation
- if NAIF decides not to investigate, the reasons for the decision and any action that might be available to the discloser under other Commonwealth laws
- if an investigation is conducted under the PID Act and an extension of time is granted by the Ombudsman, the progress of the investigation
- when the investigation report is completed and provided with a copy of the report
If you have any queries or need any assistance, please contact the NAIF on 1300 GO NAIF (1300 466 243).
General information on the Public Interest Disclosure scheme is also available on the Commonwealth Ombudsman’s website.