As per the Public Interest Disclosure (Whistleblower Protection) Act and Regulations, the Public Interest Commissioner has indicated a public entity may apply for a partial exemption from some provisions of the Act, in circumstances where their management structure or small size would make it impractical to undertake internal investigations into wrongdoings.
Section 31, Public Interest Disclosure (Whistleblower Protection) Act:
- The Commissioner may, in accordance with the Regulations, exempt any person, class of persons, public entity, information, record or thing from the application of all or any portion of this Act or the Regulations.
- The Commissioner may impose any terms and conditions the Commissioner considers appropriate on any exemption provided for under subsection (1).
- The Commissioner must provide reasons for giving an exemption under this section and must ensure the exemption, including any terms or conditions imposed, and the reasons for giving the exemption are made publicly available.
Section 8, Public Interest Disclosure (Whistleblower Protection) Act Regulations
The Commissioner may exercise powers and perform the duties set out in Section 31 of the Act if, in view of any one or more of the following factors, it would be inappropriate in the opinion of the Commissioner to apply the Act, a requirement of section 5, 7, 9, 10, 11, 18, 22, 23 or 29 of the Act, or this Regulation to a person, class of persons, public entity, information, record or thing:
(a) the small size or management structure of a public entity which is the subject of the disclosure of wrongdoing or complaint of reprisal;
(b) the nature or content of the disclosure of wrongdoing or complaint of reprisal;
(c) the persons involved in the disclosure of wrongdoing or complaint of reprisal.
One of the objectives of the Commissioner is to encourage public entities to embrace the notion of internal whistleblowing as a healthy and positive option in organizations. This demonstrates a high level of openness and integrity within management when employees feel they can bring incidents of wrongdoing forward without fear of reprisal. However, it is recognized that in small organizations it is often impractical to have a designated officer, maintain comprehensive procedures, and undertake investigations. In these circumstances, the Commissioner will consider providing partial exemptions to public entities, relative to certain requirements of the Act.
A partial exemption for public entities would only be considered relative to Sections 5, 7, 9, 10 and 11 of the Act. Upon approval, this would mean a public entity would be exempt from having to identify a designated officer and establish and maintain comprehensive procedures relative to disclosures of wrongdoing and complaints of reprisal. For entities granted an exemption to these sections, it should be noted that all other aspects of the Act would continue to apply. In short, employees of those approved entities would come direct to the Public Interest Commissioner for disclosures of wrongdoing or complaints of reprisal, rather than being required to report internally in the initial instance. If necessary, the office of the Public Interest Commissioner would then manage and investigate matters of wrongdoing or reprisal accordingly.
Should your entity consist of less than 7 employees, inclusive of the management structure, consideration for this partial exemption can be made by the Public Interest Commissioner upon application.
- Without a partial exemption, there is a legislative requirement on the part of all public entities to establish and maintain written procedures for managing and investigating disclosures by employees, for whom the Chief Officer is responsible.
- Regardless of whether an exemption is approved or not, the responsibility of annual reporting relative to Section 32 of the Act, remains with individual Chief Officers.
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