Assessing and managing the risk of detrimental action

People who disclose wrongdoing need to be confident they will be protected from detrimental action against them as a result of their disclosure. Such detrimental actions include bullying, harassment, denial of a promotion or workplace benefit, and dismissal. Further information on detrimental action can be found in the guideline Protections in the PID Act.

Action might also need to be taken to ensure that other people do not suffer detrimental action as a result of a PID. Of course, taking action to protect everyone against detrimental action does not prevent an agency taking reasonable management action. In the case of a person accused of wrongdoing, that includes investigating the wrongdoing, reasonable suspension from the workplace, and reasonable disciplinary action.

Under section 61(2) of the Public Interest Disclosures Act 2022 (PID Act), agencies have a duty to take steps to assess and minimise the risk of detrimental action (other than reasonable management action) being taken against any person. This includes the maker of a voluntary public interest disclosure (PID) and a public official who is the subject of the PID.

Depending on the circumstances, risks might also need to be considered in respect of other people, such as those involved in investigating alleged wrongdoing, or family members or friends of the person who made the disclosure.

The duty to undertake a risk assessment and implement risk management strategies arises as soon as an agency is aware that a PID has been made. An agency can be liable to pay damages for failing to comply with its risk management obligations under the PID Act.

This guideline explains:

• when agencies must assess the risk of detrimental action
• agencies’ risk management obligations under the PID Act
• what to consider when creating a risk management plan including who might need to be considered as part of the risk assessment, beyond the PID maker and the public official against whom allegations have been made
• agency liability for failing to assess and minimise the risk of detrimental action
• what reasonable management action is permitted.