Public interest disclosure procedure

1. This Procedure has been prepared to meet the requirements of sections 12(4) and (5) of the Public Interest Disclosure Act 2018 (the Act).
2. As the designated Principal Officer for the purposes of the Act, the Chief Executive of the SA Water Corporation (‘SA Water’) is committed to encouraging and facilitating disclosure, in the public interest, of information about substantial risks to public health, safety, or the environment, or about corruption, misconduct and maladministration in public administration.
3. This Procedure is designed to enable disclosure, by ensuring that mechanisms are in place for:

(a)    Making disclosures;

(b)    Dealing with disclosures; and

(c)    Providing appropriate protections for those who make disclosures.

4. Everyone at SA Water is committed to the protection of Informants who make public interest disclosures in accordance with the objectives of the Act, and to the genuine and efficient consideration and action in relation to information provided to SA Water via a public interest disclosure.  In particular:

(a) Accountability and transparency in our administrative and management practices

(b) The appointment of Responsible Officers for the purposes of the Act with their contact details made available to everyone in the business

(c) Documented procedures that are made available on our website for:

1. a person who wants to make an appropriate disclosure of public interest information; and
2. officers and employees of the agency receiving and dealing with such a disclosure

(d) Adequate protections for Informants who make appropriate public interest disclosures to a relevant authority

(e) Adequate and timely receipt, assessment and notification of appropriate disclosures of public interest information to SA Water

(f) Adequate and efficient consideration and action in relation to information provided in a public interest disclosure

(g) Facilitating the investigation of appropriate disclosures that promotes fair and objective treatment for all persons involved

(h) Rectifying any substantiated wrongdoing to the extent that is reasonably practicable

(i) Referring, as necessary, appropriate disclosures to another relevant authority

(j) Where the disclosure relates to corruption, or serious or systemic misconduct or maladministration in public administration, reporting the Disclosure directly to the Office for Public Integrity (OPI) in accordance with the Guidelines and the requirements of the Independent Commission Against Corruption Act 2012 (ICAC Act).

5. Any questions about this Procedure can be directed to the Responsible Officers (details at Appendix 3 – How Informants can contact SA Water).
6. If an Informant believes their disclosure is not being dealt with appropriately or in accordance with this Procedure, they are encouraged to contact a Responsible Officer.
7. All employees must comply with the Act.  Where employees are considering a disclosure of public interest information under the Act, they must also consider if they have obligations under the ICAC Act (and ICAC Directions and Guidelines).
8. Advice can be provided by an SA Water Responsible Officer and further information can be found on the ICAC or OPI website.
9. Purpose
10. The Public Interest Disclosure Act 2018 (the Act) encourages and facilitates disclosures of certain information in the public interest by ensuring that proper procedures are in place for making and dealing with such disclosures and providing protection for persons making such them.
11. This document sets out the procedures and processes in place for making, receiving and dealing with appropriate disclosures of public interest information, to ensure SA Water:

(a) Fulfils its responsibilities under the Act and the ICAC Act

(b)    Provides guidance on how individuals can ensure they comply with the Act and the ICAC Act (and ICAC Directions and Guidelines)

(c) Facilitates disclosures of public Interest information

(d) Provides a process by which disclosures may be made so that they are properly investigated

(e) Provides guidance on the criteria to be considered by the person who receives a disclosure (recipient) when undertaking a risk assessment

(f) Provides appropriate protection for those who make disclosures in accordance with the Act:

1. all public officers who make an appropriate disclosure of public administration information
2. any person who makes an appropriate disclosure of environmental and health information

(g) Provides appropriate support to Informants, recipients, Responsible Officers and, as appropriate, public officers who are affected by appropriate disclosures

(h) Updates Informants as to action taken in respect of a disclosure

(i) Provides guidance on who in SA Water can be contacted if an Informant believes that his or her disclosure is not being dealt with appropriately.

3. Scope
4. This Procedure applies to appropriate disclosures of public interest information, which are made in accordance with the Act, by public officers including officers and employees of SA Water, and by members of the public.
5. This Procedure is intended to complement the reporting framework under the ICAC Act and is designed to operate in conjunction with other existing policies, procedures and practices within SA Water.
6. Disclosure of Public Interest Information
7. A disclosure may be made in person, by telephone or in writing (either by post or email) as set out in Appendix 3 - How Informants can contact SA Water.
8. A disclosure may be made in accordance with Appendix 4 - How to make an appropriate Disclosure of public interest information.
9. Section 5 of the Act sets out what is an appropriate disclosure of public interest information. There are two types of disclosures of public interest Information:

(a)    Environmental and health information – that raises a potential issue of a substantial risk to the environment or to the health or safety of the public generally or a significant section of the public

(b) Public administration information –that raises a potential issue of corruption, misconduct or maladministration in public administration (whether occurring before or after the commencement of the Act).

4. The Act provides for the protection of Informants where public interest disclosures are made:

   (a)    by a member of the public or a Public Officer about environmental and health information which the Informant reasonably believes to be true or which the Informant believes may be true and is of sufficient significance to warrant disclosure

   (b)    by a Public Officer with a reasonable suspicion about public administration information.

5. Confidentiality
   1. A person who makes an appropriate disclosure of public interest information is protected and their identity must be kept confidential in accordance with section 8 of the PID Act.
   2. It is a criminal offence to divulge the identity of an Informant, except in the limited exceptions listed below in sections 5.3, and the offence carries a maximum penalty of a $20,000 fine or imprisonment for 2 years.
   3. The Act and ICAC Guideline set out exceptions to maintaining the identity of the Informant confidential. A recipient of an appropriate disclosure may divulge the identity of an Informant where:

(a)    The recipient believes on reasonable grounds that it is necessary to divulge the identity of the Informant in order to prevent or minimise an imminent risk of serious physical injury or death to any person, and the identity of the Informant is then divulged to a person or authority that the recipient believes on reasonable grounds is the most appropriate authority or person to be able to take action to prevent or minimise the imminent risk of serious physical injury or death to any person

(b)    The recipient has been issued with a notice from the OPI advising that the identity of the Informant is required by the OPI, in which case the recipient must disclose the identity of the Informant to the OPI

(c)    Doing so is necessary for the matter to be properly investigated (but only to the extent necessary to ensure proper investigation) or

(d)    The Informant consents to his/her identity being disclosed.

4. The Act does not expressly require any other information relating to a disclosure to be maintained as confidential, but in considering whether to disclose any other information, consideration should be given to the prohibition against victimisation in the Act.
5. If an Informant wishes to remain anonymous, the Informant should ensure that the allegation is sufficiently supported by details and evidence to enable the disclosure to be properly investigated.
6. Receipt of a disclosure
7. Appendix 5 sets out how recipients of disclosures should act in assessing and notifying an appropriate disclosure of public interest information.
8. The recipient of an appropriate disclosure of public interest information will:

(a)  Discuss with the Informant how they wish to be contacted, if their identity is known.  This should be mutually agreed and it is good practice for this to be documented

(b)  Take notes of the conversation with the informant where a disclosure is made by telephone

(c)  Ask the Informant whether they consent to the details of their identity being provided to other persons as required (e.g. Responsible Officer, Investigator, legal advisor) and advise the Informant that a failure to provide consent could lead to the disclosure not being properly investigated

(d)  Inform a Responsible Officer of the disclosure (without divulging the identity of the informant unless consent has been obtained from the informant) so that the Responsible Officer can maintain a centralised repository of all disclosures

(e)  Seek advice from a Responsible Officer as and when required

(f) Immediately undertake a Preliminary Assessment

(g)  As soon as practicable:

1. notify the OPI of the disclosure, and
2. confirm receipt of it with the Informant; and
3. subject to the outcome of the Preliminary Assessment, take appropriate action such as:

• appointing an Investigator, as required, to investigate
• notifying the Informant of the outcome of any action, including any investigation
• notifying the OPI of the outcome of any action taken
• reporting the outcome of any action taken to the Minister (only where the Minister was the recipient of the disclosure)
• make recommendations, as required, to the Chief Executive (Principal Officer) in relation to dealing with such disclosures.

7. Secure Handling and Storage of Information
   1. Public interest information should be securely received and stored, and accurate records of an appropriate disclosure should be securely and confidentially maintained.
   2. The recipient will:

(a) Ensure all information relating to an appropriate disclosure is maintained as confidential and as such, will be responsible for the secure storage of this information

(b) Maintain a confidential file of information (including notes of all discussions, phone calls, interviews and hardcopy and electronic documents) that relate to a disclosure and/or associated investigation/reporting process

(c) Record in a register all such information which is to remain confidential and be securely stored

(d) Inform any Investigator who is appointed in relation to any Investigation that the security and confidentiality obligations also apply to them.

3. The Responsible Officer will:

(a) Provide all necessary information to the newly appointed Responsible Officer In the event that a person’s appointment as a Responsible Officer is terminated

(b) Continue to be bound by a duty of confidentiality in respect of an Informant's identity and the information received as a result of the disclosure, in the event that a person’s appointment as a Responsible Officer is terminated.

8. Protection for the Informant
   1. SA Water is committed to protecting people who make any appropriate disclosure of public interest information.

      (a) Only public officers are eligible for the protections provided by the Act when they make an appropriate disclosure of public administration information

      (b) However, anyone is eligible for the protections provided by the Act if they make an appropriate disclosure of environmental and health information

   2. Although the Act does not provide any protection to people who knowingly make disclosures that are false or misleading in a material particular, an Informant who makes an appropriate disclosure will ordinarily be protected by:

      (a)    immunity from criminal or civil liability

      (b)    a prohibition on disclosure of his/her identity, other than in limited specific circumstances

      (c)    a prohibition against victimisation and

      (d)    a prohibition against hindering, obstructing or preventing an Informant from making an appropriate disclosure.

      Victimisation

   3. SA Water is committed to minimising any risk that an Informant might be victimised as a consequence of making, or intending to make, a public interest disclosure.
   4. A person who personally commits an act of victimisation against an Informant is guilty of an offence and may be prosecuted.  A person who makes an appropriate disclosure of public interest information is protected against victimisation in accordance with section 9 of the Act.  It is a criminal offence to commit an act of victimisation or cause detriment against an Informant and the offence carries a maximum penalty of a $20,000 fine or imprisonment for 2 years.
   5. SA Water will take action as appropriate in the circumstances of the relevant disclosure/s to protect Informants from victimisation, and/or from being hindered or obstructed in making a disclosure. Such action may include acting in accordance with risk minimisation steps set out in the following:

(a) Set out in SA Water Fair Treatment, Anti-Discrimination and Harassment Procedure

(b) Set out in SA Water Ethical Standards Procedure

(c) Set out in this Procedure and/or referring the matter to the SA Police

(d) Disciplinary action for any failure to act otherwise than in accordance with this Procedure (including with respect to divulging the identity of an Informant) in relation to a disclosure.

Immunity

6. A person who makes an appropriate disclosure of public interest information has the immunity provided for in section 5(1) of the Act and is not subject to any liability as a result of that disclosure.

   Preventing or hindering Disclosure

7. A person must not prevent another person from making an appropriate disclosure of public interest information or to hinder or obstruct another person in making such a disclosure under section 11 of the Act.  The offence carries a maximum penalty of a $20,000 fine or imprisonment for 2 years.
8. Responsibilities
   1. The Chief Executive (Principal Officer) is responsible for:

      (a) Ensuring that one or more officers or employees of SA Water are designated as Responsible Officers of SA Water for the purposes of the Act who meet the prescribed qualifications and undertake any training as specified by the Public Interest Disclosure Regulations

      (b) Ensuring that the name and contact details of each Responsible Officer of SA Water are made available to officers and employees of SA Water

      (c) Preparing and maintaining this Procedure in accordance with the requirements of the Act and the Public Interest Disclosure Guidelines.

   2. A person designated as a Responsible Officer for SA Water is responsible for the following:

      (a) Receive appropriate disclosures relating to SA Water, and ensure compliance with the Act, and this Procedure, in relation to any such disclosures

      (b) Make appropriate recommendations to the Principal Officer of SA Water in relation to dealing with disclosures, including any suggested changes to this Procedure

      (c) Provide advice to officers and employees of SA Water in relation to the administration of the Act

      (d) Complete any training courses / maintain qualifications as required by the Independent Commission Against Corruption and/or the Public Interest Disclosure Regulations

      (e) May carry out any other functions relating to the Act.

   3. All employees or officers of SA Water are responsible for complying with this Procedure.

10. Legislation and References

• Code of Ethics Policy for Public Sector Employees
• Independent Commission Against Corruption (ICAC) Act 2012
• ICAC Public Interest Disclosure Guidelines
• Public Sector Act 2009
• Public Interest Disclosure Act 2018
• Public Interest Disclosure Regulations 2019
• Public Interest Disclosure Guidelines
• SA Water Fair Treatment, Anti-Discrimination and Harassment Procedure
• SA Water Ethical Standards Procedure

11. Appendices

• Appendix 1 – Definitions
• Appendix 2 – Table of Relevant Authorities
• Appendix 3 – How Informants can contact SA Water
• Appendix 4 – How to make an appropriate disclosure of public interest information
• Appendix 5 – Assessing and notifying an appropriate disclosure of public interest information
• Appendix 6 – Notification process flowchart

12. Performance Indicator(s)

The success of this procedure can be measured by: Compliance with the Act.

A downloadable PDF version of this document is available here.