5 things to think about - transitioning to the Public Interest Disclosure Act

1. What document/s does the Council need to prepare?

Under Section 12(4) of the PID Act (once amended by the Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill 2019), the chief executive officer of each council must ensure that a document setting out procedures for making disclosures and dealing with disclosures is prepared and maintained in accordance with any applicable guidelines published by the Independent Commissioner Against Corruption under the PID Act.

The PID Act therefore only contemplates a single, procedural document. The guidelines also only contemplate a single document. We see nothing stopping Council also adopting ‘policies’ in addition to the required procedural document, but such policies are not necessary.

So long as a council’s procedural document adheres to the minimum requirements in the PID Act and the guidelines, councils have significant scope to adapt procedures to their specific circumstances and operational requirements.

2. What is the deadline for this document to be prepared?

The transitional provision in Schedule 1 clause 6 of the PID Act requires chief executive officers to prepare this document “within 3 months after [the] commencement” of the PID Act. Chief executive officers must also designate one or more persons as ‘responsible officers’ for the purpose of the PID Act within that timeframe.

There is perhaps some legal ambiguity as to whether this means 3 months from 1 July 2019, or three months from the commencement of the amendments effected by the Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill 2019.

However, in any event, for practical reasons, it would be sensible for both of these matters to be attended to as soon as possible.

3. Will the procedural document override ordinary regulatory investigatory procedures?

We expect that, relatively frequently, councils will receive complaints which both attract the protections of the PID Act and warrant regulatory investigation (e.g. under the Local Nuisance and Litter Control Act 2016, the South Australian Public Health Act 2011, etc). Such complaints might be made directly to a council member, officer or employee, or may be received by the Council upon referral from another ‘relevant authority’ (e.g. the Environment Protection Authority).

We encourage councils to ensure that their regulatory investigative procedures are compatible with the PID Act. While councils are preparing their procedural document for the purpose of Section 12(4) of the PID Act, it would be prudent to ensure that specific procedures for dealing with regulatory matters are contemplated in that document.

4. What happens to old disclosures which attracted the protection of the old Whistleblowers Protection Act 1993?

Where a council is handling a disclosure which attracted the protection of the Whistleblowers Act 1993 (SA), that matter will transition to being covered by the protections of the PID Act. However, the requirements in Section 7 of the PID Act to take action upon disclosures and to notify the informant and the Office for Public Integrity of certain matters will not apply to a disclosure which has been carried over from the old regime.

5. What happens to new disclosures which relate to matters pre-dating the PID Act?

If a person makes a disclosure following the commencement of the PID Act, but the disclosure relates to a matter which occurred prior to the commencement of the PID Act, the PID Act will still apply fully to that disclosure. This includes the requirements of Section 7 of the PID Act to take action in relation to disclosures and to notify the informant and the Office for Public Integrity of certain matters.

We look forward to assisting councils in the transition to the PID Act.