Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014

Administered by Department of the Prime Minister and Cabinet

Legislation au F2014L00978 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014

Issued by the Commonwealth Ombudsman

Background

The Public Interest Disclosure Act 2013 (the PID Act) commenced on 15 January 2014.

The PID Act’s primary purpose is to establish a legislative scheme for the investigation of allegations of wrongdoing in the Commonwealth public sector, and to provide protections for both current and former public officials who make certain types of ‘disclosures’. 

Subsection 74(1) of the PID Act gives the Commonwealth Ombudsman (the Ombudsman) the power to determine standards in relation to certain matters, including the conduct of investigations under the PID Act. Consequently the Ombudsman determined the Public Interest Disclosure Standard 2013 (the Standard). Part 3 of the Standard deals with the conduct of investigations.

Commencement of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) changes the framework for dealing with fraud related matters for Commonwealth bodies covered by that Act. Under the PGPA Act there will be no legislative instrument called the ‘Fraud Control Guidelines’. This will be replaced by a requirement to act in accordance with rules made for the purposes of fraud under the PGPA Act. Consequential amendments have been made to the PID Act to reflect those changes, requiring the Standard to be amended by this legislative instrument (the Amendment Standard).

Legislative authority

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

The Ombudsman relies upon the authority conferred by subsection 33(3) to determine the Amendment Standard.

Purpose and operation of the Amendment Standard

The purpose of the Amendment Standard is to amend Part 3 of the Standard that deals with the conduct of investigations, to reflect the changes made to section 53 of the PID Act by sections 86 to 89 of the Public Governance, Performance and Accountability (Consequential and Transitional) Act 2014.

Part 3, as amended, will continue to operate alongside existing investigation procedures in place for dealing with fraud related matters and alleged breaches of the Australian Public Service Code of Conduct (see subsections 53(4) and (5) of the PID Act).  The Amendment Standard operates to remove references to the Commonwealth Fraud Control Guidelines in Part 3 of the Standard, and replaces them with references to the rules relating to fraud for the purposes of the PGPA Act (Subsection 53(4) of the PID Act).

Consultation

Subsection 74(2) of the PID Act requires the Ombudsman to consult with the Inspector-General of Intelligence and Security (the IGIS) before determining any standards under subsection 74(1). The IGIS was consulted on the Amendment Standard for the purposes of complying with this provision.

Regulatory impact

The Office of Best Practice Regulation (the OBPR) has advised the Ombudsman that as the change effected by the Amendment Standard is machinery in nature, no further analysis of it (in the form of a Regulation Impact Statement) is required. 

Statement of compatibility with human rights

The Ombudsman has considered whether or not the Amendment Standard is compatible with human rights for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011.  A relevant statement of compatibility with human rights is attached.

 

NOTES ON THE INSTRUMENT

Section 1—Name of standard

Section 1 provides that the name of the Standard is the Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014.

Section 2—Commencement

Section 2 provides that the Standard will commence on the day after it is registered.

Section 3—Authority

Section 3 identifies the legislative authority for the determination of the Standard as being section 74 of the Public Interest Disclosure Act 2013.

Section 4—Schedule 1

Section 1 repeals subsection 8(2) of the Public Interest Disclosure Standard 2013 and replaces it to provide that, despite the application of Part 3 of the Standard to principal officers conducting an investigation of a disclosure, in cases where a principal officer is required to act in accordance with any rules relating to fraud that are made for the purposes of the Public Governance, Performance and Accountability Act 2013, the Standard will apply only to the extent that it is not inconsistent with those rules. In other words, any rules made under the Public Governance, Performance and Accountability Act 2013 are to be given preference when conducting an investigation of an alleged case of fraud.

Section 2 repeals Note 1 to subsection 8(2) of the Public Interest Disclosure Standard 2013, and replaces it with a new Note 1 that explains the legislative authority that requires principal officers to act in accordance with any rules relating to fraud (Subsection 53(4) of the PID Act).

Section 3 adds a new Part 6 which contains transitional provisions. Part 6 provides for the continued application of section 8 of the Public Interest Disclosure Standard 2013 to investigations not completed prior to 1 July 2014. That is to say, the Standard in its unamended form will continue to apply to investigations where, by virtue of section 87 of the Public Interest Disclosure Act 2013, a principal officer is still required to act in accordance with the Commonwealth Fraud Control Guidelines.

 

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

This Legislative Instrument amends Part 3 of the Public Interest Disclosure Standard 2013 (the Standard) relating to the conduct of investigations under the Public Interest Disclosure Act 2013 (the PID Act).

The Standard, including Part 3, is largely mechanical or procedural in nature. It addresses such things as what a principal officer needs to include in his or her procedures for dealing with internal disclosures (for example, requirements around contact with disclosers, decision-making and record-keeping), what a principal officer of an agency needs to do when interviewing a person during an investigation, and what details need to be included in a report of an investigation that is conducted under the Act. 

As contemplated by the PID Act, the Standard is effectively directed at principal officers of agencies that are affected by the operation of the PID Act—namely, agencies that are, broadly speaking, related to or managed by the Australian Government.  The Standard does not impose any requirements upon individual citizens in a private capacity. The amendment to Part 3 of the Standard, made by this legislative instrument, does not alter the mechanical or procedural nature of the Standard.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

Colin Neave

Commonwealth Ombudsman

 

Overview

The Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014 was enacted to address changes in the legislative framework for dealing with fraud-related matters in Commonwealth bodies covered by the Public Governance, Performance and Accountability Act 2013. The Public Interest Disclosure Act 2013, which was enacted to establish a legislative scheme for investigating allegations of wrongdoing in the Commonwealth public sector, grants the Commonwealth Ombudsman the power to determine standards for the conduct of investigations. The 2014 Amendment Standard was issued by the Commonwealth Ombudsman to amend Part 3 of the Public Interest Disclosure Standard 2013, in response to changes in the PID Act and the introduction of the PGPA Act, which altered the fraud control framework. The purpose of the Amendment Standard is to ensure that the conduct of investigations under the PID Act aligns with the new rules for fraud under the PGPA Act. The Amendment Standard operates to replace references to the Commonwealth Fraud Control Guidelines with references to the rules relating to fraud under the PGPA Act, ensuring consistency and compliance with the new legislative requirements. The Ombudsman determined the Amendment Standard under the authority conferred by the Acts Interpretation Act 1901, and consultation with the Inspector-General of Intelligence and Security was conducted to comply with the PID Act. The Statement of Compatibility with Human Rights confirms that the Amendment Standard is compatible with human rights as it does not raise any human rights issues.

Scope and Application

The Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014 pertains to the amendment of the Public Interest Disclosure Standard 2013 to align with changes introduced by the Public Governance, Performance and Accountability (Consequential and Transitional) Act 2014. This Standard applies to principal officers conducting investigations under the Public Interest Disclosure Act 2013, particularly those within Commonwealth agencies. Its purpose is to ensure that the procedures for investigating disclosures of wrongdoing in the Commonwealth public sector are updated in accordance with the new legislative framework established by the PGPA Act, which replaces the previous Fraud Control Guidelines with rules relating to fraud under the PGPA Act. The amendment ensures that investigations adhere to these new rules where they are applicable, while also maintaining the existing investigation procedures where necessary. The Standard is jurisdictionally confined to the Commonwealth, affecting agencies within the Australian Government that are subject to the PID Act. The Amendment Standard does not impose requirements on individual citizens in a private capacity and does not engage any applicable rights or freedoms, thereby being compatible with human rights. The amendment commenced on the day after it was registered, and its application is governed by transitional provisions that allow for the continued application of the previous Standard in certain circumstances until 1 July 2014.

Key Provisions

The Public Interest Disclosure Amendment (Conduct of Investigations) Standard 2014 (the Amendment Standard) (F2014L00978) serves to amend Part 3 of the Public Interest Disclosure Standard 2013 (the Standard) in light of changes to the legislative framework governing fraud-related matters within the Commonwealth public sector. This is achieved through the replacement of references to the Commonwealth Fraud Control Guidelines with references to rules made for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) (section 4, Schedule 1). This amendment ensures that the conduct of investigations under the Public Interest Disclosure Act 2013 (PID Act) aligns with the new legal requirements set forth by the PGPA Act, thereby providing a cohesive approach to handling fraud-related disclosures and investigations. The Amendment Standard operates in conjunction with existing investigation procedures, ensuring a seamless transition (subsection 53(4) of the PID Act). The Amendment Standard imposes obligations on principal officers of agencies conducting investigations under the PID Act. These obligations include ensuring that their investigation procedures are consistent with any rules made under the PGPA Act, particularly in cases of alleged fraud (subsection 53(4) of the PID Act). Principal officers must also ensure that their actions are in line with the amended Standard, particularly in terms of contact with disclosers, decision-making processes, and record-keeping (section 4, Schedule 1). Furthermore, the Amendment Standard mandates that investigations not completed prior to 1 July 2014 continue to adhere to the unamended Standard, providing a transitional framework for ongoing investigations (section 4, Part 6). The Amendment Standard does not introduce new offences or penalties but ensures that any breaches of the PID Act or the amended Standard are dealt with in accordance with existing legal frameworks. For instance, if a principal officer fails to comply with the amended Standard or any rules made under the PGPA Act, they may face disciplinary action or other consequences as provided by the PID Act or other relevant legislation. The maximum penalties for breaches of the PID Act can include substantial fines and, in some cases, imprisonment, depending on the severity of the breach and the specific provisions of the Act. The precise penalties would be determined in the context of any legal proceedings that arise from a breach. The Amendment Standard is compatible with human rights, as it does not impose any requirements on individual citizens in a private capacity and does not engage any of the applicable rights or freedoms under the international human rights instruments. The changes introduced by the Amendment Standard are procedural in nature and are aimed at ensuring consistency and compliance with the legislative requirements governing fraud-related investigations within the Commonwealth public sector. The Statement of Compatibility with Human Rights, attached to the Amendment Standard, confirms that the legislative instrument does not raise any human rights issues and is therefore compliant with human rights obligations.

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