Mandatory referrals: Public Interest Disclosure officers

People with responsibilities under the Public Interest Disclosure Act 2013 (the PID Act) also have obligations under the National Anti-Corruption Commission Act 2022 (the NACC Act). They must refer certain issues to the NACC so the NACC Commissioner can decide whether or not to investigate. These obligations are called mandatory referral obligations. They are separate from the ability to make voluntary referrals under the NACC Act.

This factsheet provides guidance on the mandatory referral obligations for Public Interest Disclosure (PID) officers.

For mandatory referral obligations for heads of Commonwealth agencies other than intelligence agencies, see Mandatory referrals: Commonwealth agency heads.

For mandatory referral obligations for heads of intelligence agencies, see Mandatory referrals: Intelligence agency heads.

Who is a PID officer?

Under the NACC Act, PID officers are staff members of Commonwealth agencies who have responsibilities or carry out certain functions under the PID Act.

To be a PID officer for the purposes of the NACC Act, the staff member will have powers and functions relating to:

• allocating internal disclosures under Division 1 of Part 3 of the PID Act (these people are known as 'authorised officers' under the PID Act)
• investigating internal disclosures under Division 2 of Part 3 of the PID Act.

What are the mandatory referral obligations for PID officers?

PID officers in Commonwealth agencies other than intelligence agencies

If a PID officer receives an internal disclosure under the PID Act that raises a corruption issue under the NACC Act, they must tell the NACC about it if all of the following apply:

• they received the internal disclosure in the course of performing their functions under the PID Act
• the internal disclosure raises a corruption issue under the NACC Act
• the corruption issue concerns the conduct of a person who is, or was, a staff member of the agency while that person is, or was, a staff member of the agency, and
• the PID officer suspects the issue could involve serious or systemic corrupt conduct.

The PID officer must refer the corruption issue to the NACC as soon as reasonably practicable after becoming aware of it.

See National Anti-Corruption Commission Act 2022, section 35 and 38

What about PID officers in intelligence agencies?

The following agencies are intelligence agencies under the NACC Act:

• Australian Geospatial-Intelligence Organisation
• Defence Intelligence Organisation
• Australian Signals Directorate
• Australian Secret Intelligence Service
• Australian Security Intelligence Organisation
• Office of National Intelligence

If an internal disclosure in an intelligence agency raises a corruption issue, and the PID officer suspects it could involve serious or systemic corrupt conduct, they must either refer it to the NACC or the Inspector General of Intelligence and Security (IGIS).

If the PID officer decides to refer the corruption issue to the NACC instead of the IGIS, they must notify the IGIS as soon as practicable.

If the PID officer decides to refer the corruption issue to the IGIS instead of the NACC, the IGIS will consider it. If the IGIS is satisfied the corruption issue is likely to involve serious or systemic corrupt conduct, they must refer the issue to the NACC.

For more information about the role of the IGIS in mandatory referrals from intelligence agencies, see Mandatory referrals: Intelligence agency heads.

The PID officer must tell the discloser if they refer the PID

If the PID officer refers a corruption issue to the NACC or the IGIS, they must notify the person who made the internal disclosure as soon as practicable.

This is consistent with existing obligations under the PID Act to keep the discloser informed of the progress of their PID.

What is a corruption issue?

A corruption issue is information, or an allegation, that raises a question of whether a person:

• has engaged in corrupt conduct in the past
• is currently engaging in corrupt conduct, or
• will engage in corrupt conduct in the future.

See National Anti-Corruption Commission Act 2022, section 9

What is corrupt conduct?

While corrupt conduct can take many forms, the NACC Act defines it as situations where a public official:

• does something that breaches the public trust
• abuses their office as a public official, or
• misuses information they have access to in their capacity as a public official.

It also applies to any person (whether or not they are a public official) who does something, or tries to do something, that that could adversely affect a public official’s honesty or impartiality in their official capacity.

See National Anti-Corruption Commission Act 2022, section 8

To find out more about corrupt conduct, see What is corrupt conduct?

What is 'serious' or 'systemic' corrupt conduct?

The PID officer must refer a corruption issue to the NACC (or the IGIS, if appropriate) if they suspect it could involve serious or systemic corrupt conduct. It will be up to the NACC Commissioner to decide if they think a particular allegation of corrupt conduct is serious or systemic.

The terms ‘serious’ and ‘systemic’ are not defined in the Act and will take their ordinary meaning.

The PID officer does not need firm evidence that the conduct could involve serious or systemic corrupt conduct. It is enough for the PID officer to suspect that it could be serious or systemic.

However, when the PID officer refers the corruption issue to the NACC (or the IGIS, if appropriate) they must explain why they suspect it could be serious or systemic.

Once operational, the NACC Commissioner may provide more detailed guidance on assessing what amounts to serious or systemic corrupt conduct.

The following information is intended to provide an indication of some factors that may be relevant.

Serious corrupt conduct

Many factors could be considered when assessing whether conduct could be serious corrupt conduct. The NACC Act does not specify what a PID officer should consider.

A PID officer may suspect that an incident involves 'serious' corrupt conduct for many reasons. For example, they might consider if the alleged conduct could involve any of the following:

• a criminal offence and, if so, the seriousness of the offence and maximum penalty if a person is found guilty
• a financial gain or loss and, if so, the amount of money gained or lost
• another benefit or detriment and, if so, the significance of that benefit or detriment
• misuse of information and, if so, the sensitivity of the information and potential harm from an improper disclosure or misuse of that information
• a person who holds a senior or trusted role and, if so, the seniority of the person; the level of trust or influence they exercise in their role; and whether the person should have understood their responsibilities and duties in that role
• a person trying to cause a public official to act dishonestly or in a biased way and, if so, the significance if the public official did behave dishonestly or showed an inappropriate preference.

PID officers could also consider whether the conduct:

• involved deception or was done secretly
• was planned or deliberate
• occurred over a prolonged period of time.

Systemic corrupt conduct

'Systemic' means something that relates to a system, or affects a system (including an organisation) as a whole. Corrupt conduct could also be systemic if it formed part of a pattern. For example, a pattern of similar kinds of conduct in the agency.

What information must be provided to the NACC or the IGIS?

A PID officer must include the following information when making a mandatory referral to the NACC or the IGIS:

• all information relevant to the corruption issue in their possession or control when they make the referral
• the reason why they suspect the issue could involve corrupt conduct that is serious or systemic.

Information relevant to a corruption issue may include (but is not limited to):

• the names of any public officials who the PID officer suspects has engaged in serious or systemic corrupt conduct
• the names of any private individual or entities involved
• a description of the conduct
• the dates and timeframes of when the alleged corrupt conduct occurred or may occur
• how and when the PID officer became aware of the issue
• any supporting documents or evidence
• any other relevant information.

If the PID officer becomes aware of new information after making the referral, they must provide it to the NACC (or the IGIS, if appropriate) as soon as reasonably practicable.

Exceptions to information requirements

A PID officer is not required to provide information about a corruption issue if any of the following apply:

• the PID officer believes on reasonable grounds that the Commissioner (or the IGIS if appropriate) is already aware of the information
• the NACC Commissioner or the IGIS has advised the information is not required
• the information is subject to an exempt secrecy provision, or
• the Attorney-General has certified that disclosing the information would be contrary to the public interest because it would harm Australia’s international relations.

When do the mandatory referral obligations start?

PID officers must start to make mandatory referrals after 28 July 2023. They can still voluntarily refer a corruption issue to the NACC (or the IGIS, if appropriate) within the first 28 days.

If a PID officer becomes aware of a corruption issue they suspect could be serious or systemic after the 28-day grace period, they must refer it to the NACC or the IGIS as soon as reasonably practicable.

What about historical conduct?

After 1 July 2023, if the PID officer becomes aware of a corruption issue that happened before the NACC commences, the mandatory referral obligations apply with the 28-day grace period. The PID officer must refer the issue to the NACC (or the IGIS if appropriate) as soon as reasonably practicable after becoming aware of it after 28 July (or later if the NACC Commissioner allows it).

After 28 July 2023, if the PID officer becomes aware of a corruption issue that occurred before 1 July 2023 the mandatory referrals apply without the 28-day grace period. This means the PID officer must refer the issue to the NACC as soon as reasonably practicable.

This applies regardless of when the relevant conduct occurred, such as before:

• the PID officer joined the agency
• they became a PID officer
• the NACC commenced operations.

If the PID officer was already aware of a corruption issue before the NACC commenced, they are not obligated to refer it to the NACC or the IGIS. However, they can still do so voluntarily.

Exceptions to mandatory referral obligations

A PID officer is not required to refer a corruption issue to the NACC or IGIS if:

• they believe on reasonable grounds that the NACC Commissioner or the IGIS (as appropriate) is already aware of the corruption issue, or
• the NACC Commissioner decides a referral is not required.

What if sharing the information would breach a secrecy obligation?

The NACC Act generally requires PID officers to comply with their mandatory referral obligations, even if doing so would breach a secrecy obligation under another law.

However, there are some exceptions to this rule. If one of the following secrecy obligations (known as 'exempt secrecy provisions') applies to information about a corruption issue, the PID officer is not required to provide that information to the NACC or the IGIS:

• Part 11 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
• Section 34 of the Inspector-General of Intelligence and Security Act 1986
• Secrecy provisions under the My Health Records Act 2012
• Sections 45 and 45B of the Surveillance Devices Act 2004
• Sections 63 and 133 of the Telecommunications (Interception and Access) Act 1979
• a secrecy provision that is a provision of a taxation law
• a secrecy provision in another law that says is still applies despite the NACC Act.

It is important to note that the mandatory referral obligation continues to apply in these circumstances. However, the PID officer is not required to include the information subject to an exempt secrecy provision in their referral.

See National Anti-Corruption Commission Act 2022, section 36

What happens after making a mandatory referral?

The PID officer must tell the person who made the internal disclosure as soon as practicable after referring the issue to the NACC or the IGIS.

Where applicable, if a PID officer decides to refer the corruption issue to the NACC instead of the IGIS the PID officer must notify the IGIS as soon as reasonably practicable. This makes sure the IGIS has visibility of allegations of corruption within the intelligence community, which is relevant to their oversight role.

If the NACC Commissioner is satisfied that the referral raises a corruption issue, they may deal with it in one or more of the following ways:

• commence a preliminary investigation
• investigate the issue alone or with the relevant Commonwealth agency or a state or territory government entity
• refer the issue back to the Commonwealth agency for them to investigate
• refer the issue to another Commonwealth agency or a state or territory government entity for consideration
• take no action.

The NACC Commissioner is not required to consider every referral they receive and may decide not to take any action in relation to a referral.

Preliminary investigations

The NACC Commissioner may conduct a preliminary investigation if they are unsure:

• whether a referral raises a corruption issue
• about the nature of a corruption issue
• whether a corruption issue is serious or systemic.

A preliminary investigation helps the NACC Commissioner find out more information about the referral. They can then decide whether or how to deal with it. The NACC Commissioner can use some of their investigatory powers under the NACC Act to conduct a preliminary investigation, such as compelling persons to provide certain information, documents or things.

What happens to the PID investigation after referring the corruption issue?

Referring a corruption issue to the NACC or the IGIS does not prevent an agency from taking action.

The agency is still required to meet its obligations under the PID Act in relation to the internal disclosure. This means the agency must still investigate the PID, unless the NACC Commissioner directs it to stop.

What is a stop action direction?

The NACC Commissioner is able to direct a Commonwealth agency to stop taking action in relation to a corruption issue. This is called a stop action direction. A stop action direction can prevent an agency from taking particular action in relation to the issue, or from taking any action at all.

In consultation with the agency head, the NACC Commissioner can only direct an agency to stop taking action where the direction is required to ensure the effectiveness of any action the NACC Commissioner has taken, or might take, in relation to the corruption issue. For example, to avoid prejudicing the NACC’s corruption investigation. The NACC Commissioner must withdraw the direction as soon as it is no longer required.

See National Anti-Corruption Commission Act 2022, section 43