3.1 What is a public interest disclosure?
In broad terms, a public interest disclosure (PID) is a report, complaint or allegation, about:
- ‘improper conduct’ by a public body, public officer or person
- ‘detrimental action’ taken or proposed to be taken by a public body or public officer, against a person, in reprisal for that person (or another person) having made a public interest disclosure or having cooperated with the investigation of a public interest disclosure.
A PID can be about conduct that may have taken place, that may be occurring now or that is proposed to be taken or engaged in.
3.2 What is ‘improper conduct’?
‘Improper conduct’ is:
- corrupt conduct
- conduct engaged in by a public officer or public body, in their capacity as a public officer or public body, that constitutes:
- a criminal offence
- serious professional misconduct
- dishonest performance of public functions
- intentional or reckless breach of public trust
- intentional or reckless misuse of information or material acquired in the course of the performance of the functions of the public officer or public body
- a substantial mismanagement of public resources
- a substantial risk to the health or safety of one or more persons
- a substantial risk to the environment
- conduct of any person that:
- adversely affects the honest performance by a public officer or public body of their functions as a public officer or public body
- is intended to adversely affect the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body and results in the person, or an associate of the person, obtaining:
- a licence, permit, approval, authority or other entitlement under any Actor subordinate instrument
- an appointment to a statutory office or as a member of the board of any public body under any Act or subordinate instrument
- a financial benefit or real or personal property
- any other direct or indirect monetary or proprietary gain that the person or associate would not have otherwise obtained
- conduct of any person that could constitute a conspiracy or attempt to engage in improper conduct.
3.3 What is ‘detrimental action’?
‘Detrimental action’ includes:
- action causing injury, loss or damage
- intimidation or harassment
- discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action.
Detrimental action includes threats to take such action or inciting or permitting someone else to take detrimental action.
To make a public interest disclosure about detrimental action:
- the detrimental action must be taken or proposed to be taken by a public body or public officer, and
- the detrimental action must have been taken or proposed to be taken against another person in reprisal for the making of a public interest disclosure, because or in the belief that:
- the other person, or anyone else has made, or intends to make a public interest disclosure, or
- the other person, or anyone else has cooperated or intends to cooperate with an investigation of the public interest disclosure.
A manager taking management action against a person who has made a PID, will not be taking detrimental action in reprisal for the making of a PID, unless the making of the PID was a reason for the management action being taken.
3.4 Who can a PID be made about?
A public interest disclosure can be made about:
- ‘public bodies’, including:
- public sector bodies (including public service bodies, public entities and special bodies)
- incorporated or unincorporated bodies established under an Act for a public purpose, including universities
- the Electoral Boundaries Commission
- a council (established under the Local Government Act 1989)
- a body performing a public function on behalf of the State or a public body or public officer
Under section 9(3) of the PID Act a public interest disclosure may not be made about the conduct or actions taken by:
- the former Office of the Special Investigations Monitor
- the former Special Investigations Monitor
- a court
- an investigating panel
- a member of an investigating panel
- ‘public officers’, including:
- public servants, including VI and IBAC officers
- local government Councillors and council employees
- university employees and teachers
- Victoria Police personnel
- Members of Parliament, including Ministers
- ministerial officers, parliamentary advisers and officers, electorate officers
- judicial officers, including coroners, members of the Victorian Civil and Administrative Tribunal (VCAT), associate judges, judicial registrars
- statutory office holders, including the Auditor-General and the Victorian Ombudsman, and the Director of Public Prosecutions
- the Governor, Lieutenant-Governor or Administrator of the State
- ‘the conduct of any person’ that:
- adversely affects the honest performance of a public body or public officer, or
- is intended to adversely affect the effective performance of a public body or public officer and results in that person or an associate of that person obtaining a specified benefit, or
- the conduct of any person who attempts to engage or conspire in improper conduct.
A public interest disclosure may still be made even if you cannot identify the person or the organisation to which the disclosure relates. For more information please see section 6 of the PID Act. Further information can also be found on the Victorian Public Sector Commission website at vpsc.vic.gov.au.
3.5 Opting-out of making a PID
Under section 19 of the PID Act, you may avoid your public interest disclosure being or continuing to be considered and treated as a PID under the PID Act, by stating in writing that your disclosure is not a public interest disclosure (PID) and providing this statement to the entity that you made your disclosure to, no later than 28 days after making your disclosure.