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Public Interest Disclosures Act: Impropriety and serious professional misconduct

Public Interest Disclosures Act: Impropriety and serious professional misconduct

By Malcolm Harding

Disclosure 

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Amendments made to the concept of improper conduct in the Public Interest Disclosures Act draw on the Act’s purpose to encourage and facilitate disclosure of impropriety.

Snapshot
  • The Public Interest Disclosures Act 2012 (Vic) was amended in 2019, including important changes to the statutory concept of “improper conduct”. 
  • The amendments broaden the range of public misfeasance that engage the protections conferred by the Act on those who make public interest disclosures.
  • A new form of “improper conduct” is “serious professional misconduct”. The article discusses the interpretative difficulties of this idea.

The Public Interest Disclosures Act 2012 (Vic) (Disclosures Act) sets out a regime for the disclosure of improper conduct by public officers and public bodies, and for the protection of those who make such disclosures. Important amendments came into effect on 1 January 2020. This article focuses on the amendments made to the concept of “improper conduct”, doing so from a perspective that draws on the Act’s purpose to encourage and facilitate disclosure of impropriety. It concludes by discussing a new form of improper conduct termed “serious professional misconduct”.

The impropriety concept is, and always has been, central to the legislative scheme. Until it was amended, the Disclosures Act conceived of improper conduct as “corrupt conduct”, as defined by s4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act), and other enumerated forms of wrongdoing falling short of corruption but “if proved, constitute a criminal offence or afford reasonable grounds for dismissing, dispensing with or otherwise terminating the services of the officer” who had engaged, or was engaging, in it. Obviously, the statutory intention behind the second category was to encourage disclosure of a broader range of public misfeasance while maintaining a focus on serious departures from proper standards of public administration. This perhaps proved elusive. 

A prospective whistleblower could be forgiven for some consternation. The two conceptions of improper conduct overlapped. For instance, a knowing or reckless breach of public trust could be corrupt conduct but could also fall within the second category provided it, somehow, was not corrupt conduct but nevertheless constituted a criminal offence or justified dismissal. The conceptual difficulty is palpable. So it must have seemed to a person with information about a public official or body that they suspected may be untoward. To disclose it and be protected, he or she had to decide if the information showed or tended to show improper conduct or was information that he or she believed on reasonable grounds had these qualities. The statute's complicated conception of impropriety may be thought to have impaired rather than encouraged prospective whistleblowers. 

So did the 2019 amendments clarify things? For the most part, they have – with the notable exception of a new category of impropriety termed “serious professional misconduct”, discussed later in this article.

The re-imagined idea of improper conduct

The re-imagined idea of improper conduct retains the conception of “corrupt conduct” derived from the IBAC Act, but instead of the second category with its complicated threshold, it now provides for two other categories that separate wrongdoing by a public officer or body from impropriety committed by others through the agency of a public officer or body. 

The first of these two new categories (which I will label the direct category) applies if a public officer or public body engages in one of eight forms of misconduct in those capacities. The second (which I will label the indirect category) applies if the conduct of any person brings about dishonest or intentionally ineffective performance of public functions by a public officer or body, or results in that person obtaining a benefit, appointment or financial gain from a public officer or public body that he or she would not otherwise have obtained. There is still overlap with corrupt conduct. However, this is perhaps of less significance than it once was – a whistleblower’s information need only engage one form of impropriety. The overall effect is to broaden the scope of the disclosures that engage the Disclosures Act

To engage the Act, the alleged wrongdoing must “constitute” one of the enumerated forms of impropriety. At first blush, this raises the bar for a whistleblower; their information may be incomplete and, without more, may be insufficient to satisfy every element of a defined form of impropriety. This seems most likely to arise with those forms of impropriety with subjective elements that pertain to the alleged wrongdoer’s state of mind. Two examples from the direct category illustrate this: an intentional or reckless breach of public trust and an intentional or reckless misuse of information acquired in the course of the performance of the public functions of a public officer or body. Both forms are built on the actor’s wrongful motivation or recklessness.

The IBAC Act avoids problems of this kind by permitting the Independent Broad-based Anti-corruption Commission (IBAC) to assume, for the purposes of its Act, that a required state of mind can be proven. The Disclosures Act adopts a different approach. It lowers the bar for, and at the point of, disclosure by authorising the disclosure of information that shows or tends to show engagement in improper conduct by a public officer or public body or information the person disclosing it reasonably believes shows or tends to show impropriety of these kinds. If the disclosure criteria are met, powerful protections and immunities are conferred on the whistleblower. Those protections and immunities extend to protection from detrimental action, defamation and other civil or criminal liability. The term “detrimental action” is defined broadly and inclusively. It is an offence to take detrimental action against another person in reprisal for a public interest disclosure. A person who does so is liable in damages for any loss, injury or damage caused to the whistleblower, and the courts are otherwise armed with wide powers to remedy the effects of detrimental action. While a whistleblower is not immunised from detrimental action in the form of disciplinary action at the hands of their employer just because he or she has made a disclosure under the Act, the proviso is that none of the reasons for taking that action includes the fact that the whistleblower made a disclosure.1

To engage these protections, a disclosure must be made to prescribed oversight bodies, such as the IBAC, the Ombudsman, the Victorian Inspectorate or, in certain circumstances, a government department or other public sector body. The IBAC is obliged to assess disclosures and in doing so applies criteria that substantially replicates the criteria that authorises a disclosure in the first place, save that for the “reasonable belief” form of disclosure the IBAC must determine if there were reasonable grounds for that belief. If the assessment criteria are met, the disclosure is treated by the Disclosures Act as a public interest complaint. If the finding is the other way, the whistleblower still retains the protections and immunities conferred by the Act, but the disclosure and the identity of the person who made it ceases to be confidential. This is still powerful encouragement. If, for instance, the IBAC finds that a whistleblower’s belief lacked reasonable grounds, the disclosure is still a public interest disclosure and the person who made it is still subject to the Act’s protections. To lose protection, the whistleblower must have disclosed the information knowing it to be false or misleading with the intention that it be acted on as a public interest disclosure.

Quite plainly, the statute encourages and facilitates complaints and disclosures by whistleblowers by conferring protection based on a reasonably low disclosure threshold. This is so despite the potential repercussions for those who are the subject of a disclosure. The quid pro quo for this level of protection is that disclosures are made according to a procedure that funnels them to particular institutions for assessment. In these ways, the Disclosures Act, as amended, maintains a balance between contending interests in favour of exposing impropriety. In this light, it is appropriate to consider the new “serious professional misconduct” form of impropriety.

The concept of serious professional misconduct

The “serious professional misconduct” form of impropriety had no direct counterpart in previous iterations of the legislation. When regard is had to its statutory neighbours, which include corruption, criminal conduct, dishonesty and abuse of public power, “serious professional misconduct” seems to substantially lower the impropriety bar. Notably, the phrase is not defined. How then does one discern professional misconduct, let alone serious professional misconduct, if there is no measuring stick for either? How does one discern it at all in the case of a public body? 

Professional misconduct often appears in laws that govern professional persons. In a context that concerned the misconduct of a lawyer, the High Court has said that the use of the adjective “professional” does not confine the concept to professional persons.2 At common law, “serious misconduct” in employment has been said to cover a multitude of sins. There is no fixed rule that governs what amounts to misconduct that is serious.3 Necessarily, the concept must take its colour from its factual and, here, statutory context. 

Ordinary principles of statutory interpretation emphasise contextual meaning. Context is to be considered at the outset and at the same time as the text of a statutory provision.4 The immediate statutory context of “serious professional misconduct” are forms of impropriety that constitute very significant misbehaviour. In the same breath, the Disclosures Act embraces corruption, criminal behaviour, dishonesty and abuses of public power. This context tends to suggest that the Disclosures Act form of serious professional misconduct is concerned with conduct that suggests the person or body is an unsuitable repository of public functions and powers. 

One potential touchstone is to ask whether the conduct seriously violates the public sector values enshrined in s7 of the Public Administration Act 2004 (Vic). This is perhaps just another way of asking if the conduct is incompatible with the performance of public functions. It tends to align the concept with the common law of employment, which views serious misconduct as synonymous with behaviour that is repugnant to the employment relationship. However, this idea cannot be determinative for this statutory setting. 

The phrase “public officer” takes its meaning from s6 of the IBAC Act. The definition is extensive. It embraces any person employed in any capacity within the Victorian public sector, as well as persons who hold high office as statutory office holders (for instance the Ombudsman), appointed office (for instance, the Governor and departmental heads), judicial office and elected office. 

The standard of professional conduct for a clerk employed in a government department cannot be the same as the standard required of a judge. Moreover, misconduct for a judge will likely hinge on considerations associated with the proper administration of justice. Those who hold appointed office (such as the Governor) or elected office (such as Ministers or local government councillors) will also be subject to considerations relevant to their office. A “public officer” also includes teachers, police officers and crown prosecutors, all of whom are subject to specific statutory regimes governing their professions. Those statutory regimes usually provide for misconduct and, in doing so, may distinguish between conduct that will justify dismissal and conduct that affects the right to practise the profession. 

At common law, professional misconduct does not necessarily require a finding that the miscreant is unfit, but will support such a finding.5 The surrounding statutory context and the need for the Disclosures Act form of professional misconduct to be “serious” strongly suggests the need for the misconduct to warrant epithets such as disgraceful, dishonourable, reprehensible and not a fit and proper person.6 Of course, these conceptions have evolved in a context concerned with individual impropriety by professionals in fiduciary type relationships. The Disclosures Act conception is not so confined. On that score, it is notable that the Act also contemplates the disclosure of serious professional misconduct by a public body. This context is markedly different from misconduct by a public officer. The notion of an entity engaging in professional misconduct, distinct from the individuals whose conduct is attributed to the body, is conceptually difficult, more so when it is realised that a public body can be unincorporated. 

The interpretative difficulties are compounded by s4(2) of the Disclosures Act. This section provides that conduct that is trivial does not constitute improper conduct for the purposes of this Act. It is difficult to conceive of a situation in which serious professional misconduct (or for that matter any of the other forms of wrongdoing captured by the improper conduct definition) could also be trivial; in which case, what work does that section do? It may be that seriousness is to be judged by the consequences of the professional misconduct and that a trivial consequence denies it that status. There is little in the statute that explains this. The explanatory memorandum is silent on the subject.

The range of circumstances to which the statutory concept of “serious professional misconduct” must be applied and that bear on its scope is wide indeed. This will likely stand in the way of there being one standard for judging what it covers or for seriousness. Two concerns arise from this. 

First, the very imprecision of the concept may tend to discourage disclosure if only because the protections conferred by the Disclosures Act hinge on some appreciation of its scope. As has been mentioned, the prospective whistleblower is protected if their information shows or tends to show the relevant impropriety or he or she reasonably believes that it does. There will doubtless be obvious cases, but not always. The prospective whistleblower is left to speculate about what their information shows or tends to show. Second, the same imprecision carries the potential to undermine the balance the Disclosures Act strikes between the encouragement it gives to the disclosure of wrongdoing and the interests of those who are the subject of a disclosure. 

It seems likely that judicial clarification will be required to work out the boundaries. While it is conceivable that the “serious professional misconduct” form of impropriety will be overtaken by the more specific forms of impropriety, if only because they offer a clearer pathway, it also has the potential to become something of a catch-all category of last resort for the person who wishes to avail themselves of the Act. This latter consequence does not seem a desirable development. It is, I think, a question for now of “watch this space”. ■


Malcolm Harding SC is a barrister at the Victorian Bar. He has been at the Bar since 2003 and was appointed Senior Counsel in 2019.

  1. Unlike the general protections provisions of the Commonwealth Fair Work Act, which prohibits the taking of adverse action in certain specified circumstances for prohibited reasons, the Disclosures Act does not require the employer’s decision maker to prove that its reasons exclude the prohibited motivation.
  2. A Solicitor v Law Society (NSW) [2004] 216 CLR 253 at [20].
  3. Rankin v Marine Power International Pty Ltd [2001] 107 IR 117 at [239-240] (Gillard J).
  4. SZAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).
  5. Note 2 above, at [20].
  6. This reflects the common law: Pham v Legal Services Commissioner [2015] VSC 671 at [9]-[11] (Bell J); NSW Bar Association v Cummins [2001] 52 NSWLR 279 at [50] (Spigelman CJ, with whom Mason P and Handley JA agreed).

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