Public interest disclosure act

11 Key excerpts on "Public interest disclosure act"

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  eBook - PDF

  Public Sector Employment in the Twenty-first Century

  • Marilyn Pittard, Phillipa Weeks, Marilyn Pittard, Phillipa Weeks(Authors)
  • 2007(Publication Date)
  • ANU Press

    (Publisher)

  The British Public interest disclosure act represents a striking departure from a restrictive view of whistleblowing. This departure challenges existing tenets of public employment law and seeks to create a different type of workplace. The Act, being broad in scope, covers almost all employees in Britain, including civil servants and most categories of public employees. 74 It permits disclosures in circumstances in which public employees would previously have been compelled to remain silent. Although the Act does not authorise violation of statutory prohibitions against disclosure, such as the Official Secrets Acts, it provides that in order to be denied protection, a whistleblower must have been convicted of a violation of the Official Secrets Act, or that the adjudicatory tribunal hearing a claim of retaliation must be effectively satisfied ‘beyond a reasonable doubt’, that the whistleblower committed the offence. 75 This provision of the Act combined with the subsequent enactment of a freedom of information statute 76 in Britain reduces the legal demands for secrecy. Moreover, the Act voids contractual provisions that prohibit whistleblowers from disclosing any information or from exercising their rights under the Act. 77 In this sense, the Act protects disclosures ‘whether or not the information is confidential’. 78 The protection of whistleblowers alone undermines the legal and policy justifications for restrictions on the release of information by public employees. Such protection accepts and legitimatises such disclosures and implicitly rejects the arguments for restrictions which rest upon the premise that a public sector whistleblower commits a politically hostile act, both ethically and legally indefensible. On the contrary, the protection of whistleblowers is seen as so important that the Act deprives public employers of the ability contractually to limit disclosures protected by the Act.

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  An HR Guide to Workplace Fraud and Criminal Behaviour

  Recognition, Prevention and Management

  • Michael J. Comer, Timothy E. Stephens(Authors)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  Any employee who at any time in his career with the company believes otherwise, should discuss the matter with the auditor. Public interest disclosure act The company will comply fully with the Public interest disclosure act 1998 in the UK, and with equivalent legislation in other parts of the world. This legislation, which is concerned with what is known as ‘whistle-blowing’, sets out the circumstances in which employees will be protected against internal disciplinary action if, in good faith, they report suspicions of fraud directly to external bodies. It should be noted that neither the legislation, nor the company, will protect any employee who makes malicious, slanderous or libellous allegations whether they are made internally or externally. All employees are strongly advised to report matters internally before approaching any third party. Protection of employees and whistle-blowing General provisions : The company will comply fully with the Public interest disclosure act 1999 in the UK, and with equivalent legislation in other parts of the world. This legislation, which is concerned with what is known as ‘whistle-blowing’, sets out the circumstances in which employees will be protected against internal disciplinary action if, in good faith, they report suspicions of fraud directly to external bodies

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  Preventing Corruption

  Investigation, Enforcement and Governance

  • G. Brooks, D. Walsh, C. Lewis, H. Kim(Authors)
  • 2013(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  There is significant literature on this subject attempting to identify the variables and antecedents of whistleblowing, these are gender, ideal values, personality traits, individuals’ dispositions, religion, tenure, age, education, satisfaction felt and loyalty (Glazer and Glazer, 1989; Barton, 1995; Barnett et al., 1996; Sims and Keenan, 1998; Miceli et al., 2001). However, human behaviour is the result of one’s cultural and social background (Chiu and Kosinski, 1999) and employees with different cultural upbringings and under different socio-economical influences have different views on what is ethical or unethical (Chen, 2001). Both contextual and individual factors have been identified in the literature as possible influences on the individual’s decision to expose corruption. Ethical judgment, however, is a key factor in the formation of intention toward a certain ethical or moral issue as it is an integral part of an individual’s attitude toward this issue. In fact, ethical judgment is included in many models of ethical decisions (Rest, 1986; Trevino, 1986; Jones, 1991). However, it is suggested that we will only behave in a particular way if the resources and opportunity are available. The individual will not have an intention to expose corruption if they are not in control of the situation and the potential outcome (Ajzen, 1991). This ‘locus of control’ is one of the characteristics that affects whistleblowing, and it is suggested that the situation is potentially under their control. This, however, is misleading, as control of a situation is often under the control of those committing corruption rather than those exposing it.

  The limits to legislation

  The Public interest disclosure act 1998 (PIDA) for the UK received Royal Assent in July 1998 and came into force on 2 July 1999. Inserted into the Employment Rights Act (1996), the PIDA provided protection for ‘whistleblowers’ if they met set criteria. These are referred to as ‘qualifying disclosures’ and these are where an employee discloses information that can cover: criminal offences, failure to comply with or breach of legal obligations, miscarriages of justice, health and safety matters, and environmental risks. The protection is also available if the qualifying disclosure is about a company overseas.

  A key point about the disclosure is that it need not be correct. Therefore, while it might later be discovered that the employee was wrong to disclose information, they only have to show that they held a ‘reasonable belief’ at the time of disclosure that one of the above criminal offences, failure to comply with or breach of legal obligations etc. had occurred. The revelation, however, is not a qualifying disclosure if; by making the disclosure they have committed an offence; that is, the disclosure was made by a legal advisor who acquired the information in the course of providing legal counsel. However, if an employee(s) disclosure fits the ‘qualifying disclosure’ criteria they can disclose even if they have signed a contract of employment, with a confidentiality clause.

  The UK is not the only country to offer legal protection for those who want to become a whistleblower. In the US there is the Sarbanes-Oxley Act (SOX) 2002. This Act came as a result of high-profile financial scandals in the US, where malpractice occurred. As part of the Act any publicly traded company is required to establish a whistleblowing procedure offering employees the opportunity to raise their concern(s) in a confidential way, free from victimisation. The European Commission, however, has recommended that anonymous reporting should not be encouraged since whistleblowing schemes require the processing of personal data and are subject to data protection rules.

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  Government Accountability

  Australian Administrative Law

  • Judith Bannister, Gabrielle Appleby, Anna Olijnyk, Joanna Howe(Authors)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  86 ........................................................................... 74 V R Kessing (2008) 73 NSWLR 22. 75 See discussion above at p. 208. 76 See, eg, Whistleblowers Protection Act 1993 (SA); Protected Disclosure Act 2012 (Vic); Public interest disclosure act 2013 (Cth); Public Interest Disclosures Act 1994 (NSW); Public Interest Disclosures Act 2003 (WA). 77 See, eg, Public interest disclosure act 2013 (Cth) s 47; Public Interest Disclosures Act 1994 (NSW) s 3. 78 Public Interest Disclosures Act 1994 (NSW) s 8; Public Interest Disclosures Act 2002 (Tas) s 6. 79 Public Interest Disclosures Act 2003 (WA) s 5. 80 A J Brown and Paul Latimer have argued that outsiders – that is, members of the public – do not need the same level of protection as government employees who face greater reprisals and can confuse the complainants with whistleblowers: A J Brown and Paul Latimer, ‘Symbols or Substance? Priorities for the Reform of Australian Public Interest Disclosure Legislation’ (2008) 17 Griffith Law Review 223, 230. 81 Whistleblowers Protection Act 1993 (SA) s 4 definition of public interest information. Other statutes such as the Corporations Act 2001 (Cth) pt 9.4AAA can also include provisions relating to the private sector. 82 See, eg, Public Interest Disclosures Act 2003 (WA) s 3 definition of public interest information. 83 See, eg, Public Interest Disclosures Act 2010 (Qld) ch 2 pt 2 div 2. 84 Public Interest Disclosures Act 1994 (NSW) pt 2. 85 For the meaning of ‘public interest disclosure’ in the Commonwealth provisions see Public interest disclosure act 2013 (Cth) pt 2 div 2 sub-div A. 86 Public Interest Disclosures Act 2003 (WA) s 7A; Public Interest Disclosures Act 2010 (Qld) s 20. 216 ACCOUNTABILITY MECHANISMS Obligations to disclose So far, we have considered how the executive maintains secrecy and addresses unauthorised disclosures of information.

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  OECD Integrity Scan of Kazakhstan

  • OECD(Author)
  • 2017(Publication Date)
  • OECD

    (Publisher)

  In addition, disclosable conduct also includes when a public official abuses his or her position as a public official and conduct engaged in by a public official that could, if proved, given reasonable grounds for disciplinary action against the public official. Source: Australia’s Public interest disclosure act (2013) Part 2 Division 2 Section 29. 258 – 13. ENCOURAGING REPORTING OF CORRUPTION IN KAZAKHSTAN THROUGH STRONGER WHISTLEBLOWER PROTECTION OECD INTEGRITY SCAN OF KAZAKHSTAN: PREVENTING CORRUPTION FOR A COMPETITIVE ECONOMY © OECD 2017 property (non-property) benefits and advantages for themselves or for third parties, as well as bribery of such persons by providing benefits and advantages.” The provision of protection for whistleblowers who disclose acts of corruption is a key element of an effective whistleblower framework. However, disclosures of other types of wrongdoings should be included. In doing so, individuals who witness or are aware of other types of wrongdoing, such as violations to the code of conduct or conflict of interest policies, gross waste or mismanagement, etc., could feel free to come forward to the relevant authorities to disclose the wrongdoing. Taken together, this would encourage the prevention of wrongdoing in general, not just corruption, in the public service. Both the laws also specify that protection is applied to those who disclose information on corruption offences. It is not clear whether a whistleblower will receive protection in the event that they provide information about a corruption offence that leads to administrative sanctions. Likewise, it is not clear what protection is afforded to an individual who comes forward with information in good faith that does not result in an administrative sanction or a criminal conviction. This lack of clarity risks undermining the confidence potential whistleblowers may have in bringing forward information that about potential corruption offences.

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  Whistleblowing in the Australian Public Sector

  Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations

  • J. Brown(Author)
  • 2008(Publication Date)
  • ANU Press

    (Publisher)

  This definition provides a sound starting point because it allows for the many types of wrongdoing about which such disclosures might arise and the many forms that whistleblowing can take (Miceli et al. 2001). It is also the most commonly accepted and widely used definition in related empirical research (Tavakoli et al. 2003). In this book, whistleblowing is also taken to mean disclosure by organisation members about matters of ‘public interest’—that is, suspected or alleged wrongdoing that affects more than the personal or private interests of the person making the disclosure (Senate Select Committee on Public Interest Whistleblowing 1994:Par.2.2). This qualification aligns with most public and public policy conceptions of the term and with the objectives of the many different legislative regimes for public sector whistleblower protection now in place in Australia. Despite the controversies surrounding policy and legislative responses to whistleblowing, the objectives of this legislation are relatively consistent and clear (NSW Ombudsman 2004a; Brown 2006:5): 1. to facilitate public interest disclosures—that is, to encourage whistleblowing 2. to ensure that disclosures by whistleblowers are properly dealt with—that is, properly assessed, investigated and actioned 3. to ensure the protection of whistleblowers from reprisals taken against them as a result of their having made the disclosure. In its method, the present research did not use the term ‘whistleblowing’ itself, just as no existing legislative regime actually makes substantive use of the term. 8 Whistleblowing in the Australian Public Sector Instead, our surveys asked respondents about ‘wrongdoing’ of which they were aware (discussed further below) and whether they or anyone else had formally ‘reported’ it.

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  Feminist Perspectives on Equity and Trusts

  • Susan Scott-Hunt, Hilary Lim(Authors)
  • 2013(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  The legal concern with the ‘sovereignty of the individual’ 156 fails to explain collective responsibility or the accountability of corporations. 157 The PIDA 1998 focuses attention on the individual by providing a worker with employment protection, subject to strict statutory requirements, but is does not guarantee the whistleblower’s concerns will be heeded. There is no obligation upon an employer ‘to give credence to or do anything about a whistleblower’s charges’. 158 This is unfortunate as ‘[t]he roles of responsibility and blame allocation do not begin and end with individual moral positions’. 159 Public interest disclosure act 1998 The PIDA 1998 came into force on 2 July 1999 160 and amends the Employment Rights Act (ERA) 1996 to provide statutory protection to whistleblowers against dismissal and victimisation if they disclose information in respect of their employer’s criminal, dangerous or damaging activities. 161 The preamble to the PIDA states that it is: ‘[A]n Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes.’ The protection is only afforded if a ‘qualifying disclosure’ is made which falls within one of the categories in the definitive 162 list provided by s 43B of the ERA 1996, that is: ‘any disclosure of information which, in the reasonable belief of the worker making the disclosure,’ tends to show one or more of the following has been committed: a criminal offence; non-compliance of a legal obligation; a miscarriage of justice; a threat to the health or safety of an individual; damage to the environment; or the deliberate concealment of information concerning any of the previous categories. The requirement of ‘reasonable belief’ on the part of the worker does not mean the belief need be justified, but only that it was reasonable to hold it

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  Inside Lawyers' Ethics

  • Christine Parker, Adrian Evans(Authors)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  They state that ‘where in-house counsel find themselves aware of information regarding wrongdoing by the organization, in-house counsel must disclose this material information to the organization. The person within the organization to whom the disclosure is made may be impacted by the nature of the concern. If there is a legislative disclosure requirement then this must be done and the organization advised accordingly’. 87 This whistleblowing pathway is equally valid for external lawyers advising the company. This approach is also consistent with the 2004 amendments to the Australian corpor- ations law which protect corporate employees and service-providers from civil or criminal liability, or victimisation, where they disclose in good faith information relating to a possible breach of the Australian corporations law within the company to the Board or to the corporate regulator, 88 and also the process under the Public interest disclosure act 2013 (Cth) (‘Public interest disclosure act ’) for protecting Commonwealth public sector whistleblowers. Lawyers are not, however, well covered by whistleblower protections at present. There is no provision for whistleblower protection in legal profession legislation or conduct rules. The Australian corporations law whistleblower protections only protect whistleblowers in relation to breaches of the Australian corporations law itself and not other kinds of misconduct, and the more complete protections available under the Public Interest Disclos- ure Act apply only to whistleblowers employed by or contracted by a Commonwealth government agency. 89 The Turnbull Federal Government promised, in late 2016, to strengthen whistleblower protections, and this may provide greater protection for lawyer whistleblowers in a variety of areas.

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  Unlocking the Law of Evidence

  • Charanjit Singh(Author)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  As case law demonstrates, government officials usually make most claims for PII; however, private individuals are also entitled to claim it (see D v NSPCC [1978] AC 171 or R v Reading Justices, ex p Berkshire County Council (1996) 1 Cr App R 239). The primary justification for establishing PII is based on the policy that the public interest in protecting certain pieces of information or documents outweighs the narrower concept of justice being accorded to a private individual in having all the relevant evidence available to them for presentation to the court. In Rogers v Home Secretary [1973] AC 388 Lord Pearson stated: JUDGMENT ‘The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side resulting from non-disclosure of a document which is relevant to an issue in legal proceedings.’ Section 21 of the Criminal Procedure and Investigations Act 1996 (CPIA) governs the basis of public interest immunity in criminal cases. It provides: SECTION ‘(1) Where this Part applies as regards things failing to be done after the relevant time in relation to an alleged offence, the rules of common law which (a) were effective immediately before the appointed day, and (b) relate to the disclosure of material by the prosecutor, do not apply as regards things failing to be done after that time in relation to the alleged offence… (2) Subsection (1) does not affect the rules of common law as to whether disclosure is in the public interest.’ The CPIA 1996 normally requires full disclosure by the prosecution unless the common law rules apply. It should be noted that the Criminal Justice Act 2003, reference to which will be made in this chapter as and when necessary, has amended the 1996 Act

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  Unlocking Evidence

  • Charanjit Singh, Mohamed Ramjohn(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  Although as case law demonstrates government officials usually make most claims for PII; however, private individuals are also entitled to claim it (see D v NSPCC [1978] AC 171 or R v Reading Justices, ex p Berkshire County Council (1996) 1 Cr App R 239). The primary justification for establishing ‘public interest immunity’ is based on the policy that the public interest in protecting certain pieces of information or documents outweighs the narrower concept of justice being accorded to a private individual in having all the relevant evidence available to them for presentation to the court. In Rogers v Home Secretary [1973] AC 388 Lord Pearson stated: Judgment ‘The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side resulting from non-disclosure of a document which is relevant to an issue in legal proceedings.’ Section 21 of the Criminal Procedure and Investigations Act 1996 (CPIA) governs the basis of public interest immunity in criminal cases. It provides: Section ‘(1) Where this Part applies as regards things failing to be done after the relevant time in relation to an alleged offence, the rules of common law which (a) were effective immediately before the appointed day, and (b) relate to the disclosure of material by the prosecutor, do not apply as regards things failing to be done after that time in relation to the alleged offence … (2) Subsection (1) does not affect the rules of common law as to whether disclosure is in the public interest.’ The CPIA 1996 normally requires full disclosure by the prosecution unless the common law rules apply. It should be noted that the Criminal Justice Act 2003, reference to which will be made in this chapter as and when necessary, has amended the 1996 Act

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  The Law of Confidentiality

  A Restatement

  • Paul Stanley KC(Author)
  • 2008(Publication Date)
  • Hart Publishing

    (Publisher)

  27 Some of authorities 28 suggest that in cases of serious wrongdoing disclosure to the public in general is justified. That is no doubt true. But, it is suggested, the public interest being pursued there is not so much that identified in § 12, the detection and prevention of crime, but rather the public interest in freedom of expression. That is not to say that such cases—dealing with the public exposure of disgraceful or criminal behaviour—are in any way wrongly decided, or that they do not reflect a public interest. But it seems better to regard the public inter-est in ‘exposure’ (for public comment, information, or censure) as different from the public interest in the communication of information which may lead to the detection or prevention, by the proper authorities, of crime or serious wrong-doing. Such disclosure by publication is best addressed through the principles set out in § 17. 64 Public Interest: Wrongdoing ‘following such investigations as are reasonably open to the recipient, and having regard to all the circumstances of the case, . . . can reasonably be regarded as being a credible allegation from an apparently reliable source’. 24 As in Re A Company’s Application [1989] Ch 477 (financial services regulator and the Inland Revenue); Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 (CA) (disclosure to jockey club and police). 25 Initial Services Ltd v Putterill [1968] 1 QB 396 (CA), 406 (Lord Denning MR). 26 Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 74 ALR 428, 450 (Gummow J). 27 See Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 (Laws J) where the police were held justified in distributing photographs of known shoplifters to local traders. Laws J stressed that the dissemination ‘was limited to parties having a reasonable concern to see it’: [1995] 1 WLR 804, 811. 28 Initial Services Ltd v Putterill [1968] 1 QB 396 (CA), 406 (Lord Denning MR); Lion Laboratories Ltd v Evans [1985] QB 526 (CA).

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