Fact Sheet 16 - Protected Disclosure Act 2012 - role of the Ombudsman

Purpose of the Protected Disclosure Act 2012

The main objective of the Protected Disclosure Act 2012 (the PDA) is to encourage people to report improper conduct involving public officers and/or public bodies. The PDA also provides protection from detrimental action to any person affected by a protected disclosure whether it is a person who makes a disclosure, a witness, or a person who is the subject of an investigation.

The Independent Broad-based Anti-corruption Commission (IBAC) has overall responsibility for administration of the PDA and is the body responsible for determining whether a disclosure is a protected disclosure complaint. More information about Protected Disclosures and advice on how to make a Protected Disclosure to the IBAC can be obtained from the IBAC website via the following link:

Role of the Victorian Ombudsman

The Ombudsman’s role in handling disclosures under the PDA includes:

  • receiving certain types of disclosures about :
    • a councillor, Freedom of Information Commissioner, Commissioner for Privacy and Data Protection or Health Services Commissioner which can only be made to the Ombudsman or IBAC, or
    • protected disclosure entities that the Ombudsman would be able to investigate under the Ombudsman Act  
  • notifying IBAC within 28 days if the Ombudsman receives an assessable disclosure and considers the disclosure may be a protected disclosure under section 21(2) of the PDA
  • determining whether a protected disclosure warrants investigation under the provisions of sections 13A, 15D, 15E and 17 of the Ombudsman Act but only after it has been assessed and referred to the Ombudsman by IBAC. For example the Ombudsman may not investigate a protected disclosure complaint if she considers it to:
    • be trivial, frivolous or vexatious
    • lacking in substance or credibility
    • have already been investigated or otherwise dealt with by IBAC or another relevant body
    • involve conduct that does not amount to improper conduct or detrimental action
  • investigating protected disclosure complaints referred by IBAC under section 15C of the Ombudsman Act.

If the Ombudsman receives a disclosure that falls within the definition of a protected disclosure under the PDA,  then we must notify IBAC unless the person making the disclosure expressly states in writing (at the time of making the disclosure) that they do not wish the matter to be considered a disclosure.

The Ombudsman has no jurisdiction to receive complaints regarding police personnel. A protected disclosure complaint concerning the conduct of a member of police personnel, including non-uniform employees, may only be made to IBAC or a police officer of or above the rank of sergeant. 

Where the Ombudsman investigates a Protected Disclosure

Once it has assessed a protected disclosure complaint, IBAC determines if it will investigate the protected disclosure complaint or refer it to another body, such as the Ombudsman, to investigate.

If IBAC refers a protected disclosure complaint to the Ombudsman, the investigation is conducted under Part IV of the Ombudsman Act 1973. Before investigating a protected disclosure complaint, the Ombudsman may make enquiries to determine if the investigation is warranted.

The Protected Disclosure Act requires that any person or entity who receives information due to the handling or investigation of a protected disclosure not disclose that information except in certain limited circumstances. A breach of the confidentiality provisions constitutes an offence.
 
 

Please note: This document is intended as a guide only. For this reason the information contained herein should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases. To the maximum extent permitted by the law, The Victorian Ombudsman is not liable to you for any loss or damage suffered as a result of reliance on this document. For the most up-to-date versions of cited Acts, please refer to www.legislation.vic.gov.au.

 
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Contact Details

Victorian Ombudsman
Level 2
570 Bourke Street
Melbourne VIC 3000
Phone                     03 9613 6222
Toll free                  1800 806 314
Fax                         03 9602 4761
TTY                        133 677 or
                               1800 555 677
Interpreter service  131 450