Section 61TA - Information Commissioner must investigate public interest complaints

People who make disclosures about improper conduct and detrimental action in the Victorian public sector receive protections such as keeping the identity of the person reporting improper conduct confidential and protecting them from reprisals (including bullying, harassment or legal action).⁴

A public interest disclosure is a disclosure of information that shows or tends to show (or the person believes on reasonable grounds that):

• a person, public officer or public body has engaged or proposes to engage in improper conduct; or
• a public officer or public body has, is or is proposing to take detrimental action against a person in reprisal for their disclosure.⁵

People may report improper conduct to the Independent Broad-based Anti-corruption Commission (IBAC) or to the Public Interest Disclosure Coordinator of certain public sector bodies and agencies. A Public Interest Disclosure Coordinator must keep all potential public interest disclosures confidential and refer them to IBAC for assessment.⁶

IBAC is Victoria’s agency responsible for preventing and exposing public sector corruption and police misconduct.

If a public interest disclosure is made to IBAC, IBAC must assess the disclosure to determine whether the disclosure is a public interest complaint.⁸ IBAC may decide to dismiss the matter, investigate the matter, or refer the matter to another investigating entity (such as OVIC).

Division 3 of Part VIB provides for the Information Commissioner to investigate public interest complaints referred by IBAC.

If IBAC decides that a disclosure is a public interest complaint, they will deal with it under the Independent Broad-based Anti-corruption Act 2011 (Vic) (IBAC Act).¹¹ This may include referring the complaint to OVIC or another integrity body under sections 73 or 73A of the IBAC Act.

If IBAC refers the complaint to OVIC, OVIC must investigate it.¹² However, there are specific instances where OVIC cannot, or may refuse to, investigate a public interest complaint.

Section 73A of the IBAC Act allows IBAC to refer public interest complaints to certain other agencies, including OVIC.¹⁹ IBAC may only refer public interest complaints if:

• it does not consider the subject matter of the complaint amounts to corrupt conduct;²⁰
• the subject matter of the complaint is relevant to the functions of the agency it is referring it to;²¹
• the complaint is not about the agency it is referring it to;²²
• IBAC considers it is more appropriate that the other agency investigate the complaint than IBAC;²³ and
• IBAC has consulted with the agency before referring the complaint.²⁴

Division 3 was inserted into the FOI Act by the Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Act (Vic) in 2019 (Integrity and Accountability Amendment Act).

The Integrity and Accountability Amendment Act’s second reading speech said that it gave effect to seven guiding principles:

• ‘Accountability: the Bill promotes responsibility for the actions and decisions of public officials and bodies by encouraging people to report wrongdoing, and ensuring serious wrongdoing is effectively investigated.
• ‘Independence: the Bill strengthens the roles of key integrity bodies’ such as OVIC and ‘supports the investigation of serious wrongdoing by investigating entities who are independent from government influence and control.’²⁷
• ‘Effectiveness: the Bill ensures that each integrity body has appropriate and proportionate powers that allow them to achieve their objectives within the system. The Bill also makes the process of disclosure, notification, assessment and investigation more streamlined and effective.
• ‘Transparency: the Bill provides clear and transparent guidance on how complaints are to be treated by the public sector and integrity bodies, and how integrity bodies are overseen by the Victorian Inspectorate.
• ‘Collaboration: the Bill will allow integrity bodies to collaborate more effectively with each other and with the public sector.
• ‘Cohesion: the Bill resolves discrepancies between integrity bodies’ jurisdictions and improves referral mechanisms, which will prevent the duplication efforts between bodies and will help to ensure matters are resolved in a timely, efficient manner.

‘Fairness: the Bill provides additional safeguards to protect the rights, safety and welfare of people who are involved in an integrity body’s investigation, to ensure that people are treated fairly and equally.’²⁸