Public Interest Disclosure (Protection of Whistleblowers) Bill 2002

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Public Interest Disclosure (Protection of Whistleblowers) Bill 2002

- C2004B01191

A Bill for an Act to encourage the disclosure of conduct adverse to the public interest in the public sector, and for related purposes

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Introduced Senate	11 Dec 2002

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Public Interest Disclosure (Protection of Whistleblowers) Bill 2002

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2002

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Public Interest Disclosure (Protection of Whistleblowers) Bill 2002

No. , 2002

(Senator Murray)

A Bill for an Act to encourage the disclosure of conduct adverse to the public interest in the public sector, and for related purposes

Contents

A Bill for an Act to encourage the disclosure of conduct adverse to the public interest in the public sector, and for related purposes

The Parliament of Australia enacts:

Part 1 Preliminary

1 Short title

This Act may be cited as the Public Interest Disclosure (Protection of Whistleblowers) Act 2002.

2 Commencement

(1) Section 1 and this section commence on the day on which this Act receives the Royal Assent.

(2) The remaining provisions commence on a day, or days, to be fixed by Proclamation.

(3) If a provision referred to in subsection (2) has not commenced before the end of the period of 6 months commencing on the day on which this Act receives the Royal Assent, that provision, by force of this subsection, commences on the first day after the end of that period.

3 Objects of this Act

The objects of this Act are to:

(a) support the principle of public interest disclosure and safeguard the rights, including employment rights, of persons who make public interest disclosures;

(b) provide a framework within which public interest disclosures will be independently and rigorously dealt with;

4 Interpretation

(1) In this Act, unless the contrary intention appears:

act includes investigate.

agency has the same meaning as in the Financial Management and Accountability Act 1997.

conduct includes an act or omission.

detriment means:

(a) injury, damage or loss; or

(b) intimidation or harassment; or

disclosable conduct has the meaning given by section 5.

employee includes a person who is an employee within the meaning of the Public Service Act 1999 or the Parliamentary Service Act 1999.

Executive Agency means an Executive Agency within the meaning of the Public Service Act 1999.

GBE or Government Business Enterprise has the same meaning as in the Commonwealth Authorities and Companies Act 1997.

government agency means:

(a) a Department of State, excluding an Executive Agency or a Statutory agency; or

(b) an Executive Agency; or

offence means an offence under an Act.

parliamentary agency means a Department of the Parliament that is established under the Parliamentary Service Act 1999.

prescribed authority has the meaning given by section 6.

proper authority has the meaning given by section 11.

public interest disclosure means a disclosure of information that the person making the disclosure believes on reasonable grounds tends to show:

(a) that another person has engaged, is engaging, or proposes to engage, in disclosable conduct; or

(b) public wastage; or

(d) that a person has engaged, is engaging, or proposes to engage, in an unlawful reprisal; or

(e) that a public official has engaged, is engaging, or proposes to engage, in conduct that amounts to a substantial and specific danger to the health or safety of the public;

and includes an anonymous disclosure.

public official means:

(a) an employee of an agency, including an agency head;

(b) a person employed by or on behalf of an agency or in the service of a prescribed authority, whether under a contract of service or a contract for services, including a person who has ceased to perform those services; or

public wastage means conduct by a public official that amounts to negligent, incompetent or inefficient management within, or of, an agency resulting, or likely to result, directly or indirectly, in a substantial waste of public funds, other than conduct necessary to give effect to a law of the Commonwealth.

Statutory Agency means a Statutory Agency within the meaning of the Public Service Act 1999.

unlawful reprisal means conduct that causes, or threatens to cause, detriment:

(a) to a person directly because a person has made, or may make, a public interest disclosure; or

(b) to a public official directly because he or she has resisted attempts by another public official to involve him or her in the commission of an offence.

5 Meaning of disclosable conduct

(1) For the purposes of this Act, conduct is to be taken to be disclosable if:

(a) it is of a type referred to in subsection (2); and

(b) it would, if proven, constitute:

(i) a criminal offence; or

(ii) a disciplinary offence; or

(iii) reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public official who is engaged in it.

(2) For the purposes of paragraph (1)(a), the following types of conduct are disclosable:

(a) conduct of a person (whether or not a public official) that adversely affects, or could adversely affect, either directly or indirectly, the honest or impartial performance of official functions by a public official or agency;

(b) conduct of a public official which amounts to the performance of any of his or her official functions dishonestly or with partiality;

(d) conduct of a public official, a former public official or an agency that amounts to the misuse of information or material acquired in the course of the performance of official functions (whether for the benefit of that person or agency or otherwise);

(e) conduct of a public official of a kind that amounts to maladministration which is action or inaction of a serious nature that is:

(i) contrary to law; or

(ii) unreasonable, unjust, oppressive or improperly discriminatory; or

(iii) based wholly or partly on improper motives;

(f) a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (e) (inclusive).

(3) In this section:

disciplinary offence means conduct that constitutes grounds for disciplinary action under the Public Service Act 1999 or the Parliamentary Service Act 1999.

6 Meaning of prescribed authority

(1) A prescribed authority includes a Commonwealth authority which is either of the following kinds of body that holds money on its own account:

(a) a body corporate that is incorporated for a public purpose by an Act;

(b) a body corporate that is incorporated for a public purpose by:

(i) regulations under an Act; or

(ii) an Ordinance of an external Territory (other than Norfolk Island) or regulations under such an Ordinance;

and is prescribed for the purposes of this paragraph by regulations under this Act.

(2) For the purposes of subsection (1), none of the following is a Commonwealth authority:

(a) a Corporations Act company;

(b) an Aboriginal association incorporated under Part IV of the Aboriginal Councils and Associations Act 1976;

(3) For the purposes of subsection (1), all money that a body holds is taken to be held by it on its own account, unless the money is public money as defined in section 5 of the Financial Management and Accountability Act 1997.

(4) A prescribed authority also includes a Commonwealth company which is a Corporations Act company in which the Commonwealth has a controlling interest. However, it does not include a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies.

(5) A prescribed authority also includes a wholly-owned Commonwealth company which is any Commonwealth company other than a company any of the shares in which are beneficially owned by a person other than the Commonwealth.

7 Disclosures during proceedings

If information that could amount to a public interest disclosure is disclosed in the course of the proceedings of a court or tribunal, the court or tribunal may refer the information to a proper authority.

8 Other protection preserved

This Act does not limit the protection given by any other Act or law to a person who makes a public interest disclosure or prejudice any other remedy available to the person.

9 Liability of agent of the Crown

An agent of the Commonwealth who commits an offence against this Act is liable for a penalty for the offence.

10 Legal professional privilege

Nothing in this Act is to be taken to entitle a person to disclose information which would otherwise be the subject of legal professional privilege.

Part 2 Proper authorities

11 Meaning of proper authority

(1) Each of the following is a proper authority to receive a public interest disclosure concerning a government agencys conduct or the conduct of a public official in relation to the agency, or a public interest disclosure that a person has engaged, is engaging, or proposes to engage, in an unlawful reprisal:

(a) the agency head;

(b) the Public Service Commissioner;

(d) the Commonwealth Ombudsman.

(2) Each of the following is a proper authority to receive a public interest disclosure concerning a parliamentary agencys conduct or the conduct of a public official in relation to the parliamentary agency, or a public interest disclosure that a person has engaged, is engaging, or proposes to engage, in an unlawful reprisal:

(a) a Clerk or a Secretary of a parliamentary agency;

(b) the Parliamentary Service Commissioner;

(d) the Commonwealth Ombudsman.

12 Procedures

(1) An agency must establish procedures:

(a) to facilitate the making of public interest disclosures; and

(b) to deal with public interest disclosures that it is the proper authority to receive;

as soon as practicable, and in any event, within 12 months after:

(d) the agency comes into existence;

whichever is later.

(2) An agency must ensure that procedures established under subsection (1) are maintained.

(3) The procedures to be established under subsection (1) must include procedures dealing with the following:

(a) making public interest disclosures;

(b) assisting and providing information to a person who is considering making or who makes a public interest disclosure;

(c) protecting a person who makes a public interest disclosure from unlawful reprisals, including unlawful reprisals taken by public officials in relation to the agency;

(d) acting on public interest disclosures.

(4) The agency must, in respect of a document setting out the procedures established and maintained in accordance with this section:

(a) make a copy of the document available to its public officials; and

(b) make a copy of the document available to the public for inspection at all reasonable times; and

(c) supply to a person a copy of the document on payment of an amount directed by the agency to be paid in relation to supply of such a copy (being an amount that the agency has determined, on reasonable grounds, to be equal to the costs that will be incurred by the agency in providing such a copy).

13 Report on disclosures

(1) An agency that is required by an Act to prepare an annual report of its activities during a year for tabling before the Parliament must include in the report:

(a) a description of the procedures maintained by it under section 12 during the year; and

(b) statistics relating to the year in accordance with subsection (2); and

(2) The statistics to be included in the annual report are:

(a) the number of public interest disclosures received by the agency; and

(b) the number of each type of public interest disclosure received by the agency; and

(d) the number of public interest disclosures investigated by the agency; and

(e) where the agency has referred public interest disclosures to other agencies for investigation:

(i) the total number of disclosures referred; and

(ii) the identity of each other agency to which a disclosure was referred; and

(iii) the number of disclosures referred to each other agency; and

(iv) the number of each type of public interest disclosure referred to each other agency; and

(f) the number of public interest disclosures on which the agency declined to act under section 20; and

(g) the number of public interest disclosures that were substantiated by the agencys investigation of the disclosure.

(3) The annual report must include particulars of remedial action taken by the agency in relation to:

(a) each public interest disclosure that was substantiated on investigation by the agency; and

(b) any recommendations of the Public Service Commissioner or the Parliamentary Service Commissioner, as the case may be, that relate to the agency.

Part 3Public interest disclosures

14 Making a public interest disclosure

(1) Any person may make a public interest disclosure to a proper authority.

(2) Without limiting the generality of subsection (1), a person may make a public interest disclosure:

(a) about conduct in which a person engaged, or about matters arising, before the commencement of this Act; and

(b) whether or not the person is able to identify any person that the information disclosed concerns.

15 Anonymous disclosures

(1) A person may make an anonymous disclosure in accordance with this section and such a disclosure is protected by this Act.

(2) An anonymous disclosure may only be made to a proper authority specified in paragraph 11(1)(b), (c) or (d) or 11(2)(b), (c) or (d), where the disclosure does not relate to the proper authority to whom the disclosure is made.

(3) A person making an anonymous disclosure must identify themselves to the head of a proper authority specified in paragraph (11)(1)(b), (c) or (d) or 11(2)(b), (c) or (d) and request that his or her identity be kept confidential by the proper authority.

(4) The head of the proper authority must personally consider an anonymous disclosure and make a preliminary assessment of the disclosure against the matters mentioned in section 16 before referring the matter without any identification of the person making the disclosure to staff of the proper authority for further and full investigation.

(5) The proper authority must maintain confidentiality when examining a matter referred in accordance with this section.

(6) An anonymous disclosure is subject to the tests set out in section 16.

16 Frivolous etc. disclosures

(1) A proper authority may decline to act on a public interest disclosure received by it if it consider that:

(a) the disclosure is frivolous or vexatious; or

(b) the disclosure is misconceived or lacking in substance; or

(d) there is a more appropriate method of dealing with the disclosure reasonably available; or

(e) the disclosure has already been dealt with adequately.

(2) If an issue raised in a public interest disclosure has been determined by a court or tribunal authorised to determine the issue at law after consideration of the matters raised by the disclosure, the proper authority shall decline to act on the disclosure to the extent that the disclosure attempts to reopen the issue.

17 Referral without investigation

Subject to section 20, if a public interest disclosure received by a proper authority is not related to:

(a) the conduct of the authority or of a public official in relation to the authority; or

(b) a matter, or the conduct of any person, that it has a function or power to investigate;

the proper authority must refer the disclosure to an agency that, because it has a function or power to deal with the conduct or matter the disclosure concerns, is a proper authority to receive the disclosure.

18 Investigation by proper authority

(1) A proper authority shall investigate a public interest disclosure received by it if the disclosure relates to:

(a) its own conduct or conduct of a public official in relation to the authority; or

(b) a matter, or the conduct of any person, that the authority has a function or power to investigate; or

(2) Where a proper authority investigates a matter in accordance with subsection (1) and is unable to investigate the matter impartially or without a conflict of interest, the matter must be referred to another proper authority.

(3) In all cases, where a proper authority is investigating a public interest disclosure in relation to its own conduct, it must notify the Commonwealth Ombudsman of the fact within 2 weeks of the disclosure.

19 Non-investigation by proper authority

(1) Where a proper authority decides not to investigate a public interest disclosure received by it, the proper authority must refer the matter to either the Commonwealth Ombudsman or the Auditor-General seeking their approval to not investigate the disclosure.

(2) Where action of the kind mentioned in subsection (1) occurs, subsection 21(2) of this Act applies.

20 Referral with investigation

(1) Subject to subsection (2), if a public interest disclosure being investigated by a proper authority relates to:

(a) the conduct of another agency or the conduct of a public official in relation to another agency; or

(b) a matter, or the conduct of any person, that another agency has a function or power to investigate;

the proper authority may refer the public interest disclosure to the other agency.

(2) Nothing in this section affects the duty of a proper authority to act under section 18.

21 No referral

(1) A proper authority must not refer a public interest disclosure to another agency under section 17 or subsection 20(1) if, in the authoritys opinion:

(a) there is a serious risk that a person would engage in an unlawful reprisal; or

(b) the proper investigation of the disclosure would be prejudiced;

as a result of the reference to the other agency.

(2) Where a non-referral of the type mentioned in subsection (1) occurs, the matter must be referred immediately to the Ombudsman who must decide what action is to be taken in relation to the matter.

22 Action by proper authority

(1) Subject to subsection (2), if, after investigation, a proper authority is of the opinion that a public interest disclosure has revealed:

(a) that a person has engaged, is engaging, or proposes to engage, in disclosable conduct; or

(b) public wastage; or

(d) that a public official has engaged, is engaging, or proposes to engage, in conduct that amounts to a substantial and specific danger to the health or safety of the public;

the authority must take such action as is necessary and reasonable:

(e) to prevent the conduct or reprisal continuing or occurring in future; and

(f) to discipline any person responsible for the conduct or reprisal.

(2) Where the Public Service Commissioner or the Parliamentary Service Commissioner reports that a public interest disclosure has revealed:

(a) that a person has engaged, is engaging, or proposes to engage, in disclosable conduct; or

(b) public wastage; or

(d) that a public official has engaged, is engaging, or proposes to engage, in conduct that amounts to a substantial and specific danger to the health or safety of the public;

a proper authority to which the disclosure relates must, having regard to any recommendations of the Public Service Commissioner or the Parliamentary Service Commissioner, take such action as is necessary and reasonable:

(e) to prevent the conduct or reprisal continuing or occurring in future; and

(f) to discipline any person responsible for the conduct or reprisal.

(3) Subsections (1) and (2) do not apply if:

(a) an investigation, or a report by the Public Service Commissioner or the Parliamentary Service Commissioner, reveals conduct referred to in paragraphs (1)(d) or (2)(d); and

(b) the conduct is necessary to give effect to a law of the Commonwealth.

23 Progress report

(1) A person who makes a public interest disclosure, or a proper authority which refers a disclosure to another proper authority, may request the proper authority to which the disclosure was made or referred to provide a progress report.

(2) Where a request is made under subsection (1), the proper authority to which it is made shall provide a progress report to the person or authority who requested it:

(a) as soon as practicable after receipt of the request; and

(b) if the proper authority takes further action with respect to the disclosure after providing a progress report under paragraph (a):

(i) while the authority is taking actionat least once in every 90 day period commencing on the date of provision of the report under paragraph (a); and

(ii) on completion of the action.

(3) A progress report provided under subsection (2) must contain the following particulars with respect to the proper authority that provides the report:

(a) where the authority has declined to act on the public interest disclosure under section 16that it has declined to act and the ground on which it so declined;

(b) where the authority has referred the public interest disclosure to another proper authoritythat it has referred the disclosure to another authority and the name of the authority to which the disclosure has been referred;

(c) where the authority has accepted the public interest disclosure for investigationthe current status of the investigation;

(d) where the authority has accepted the public interest disclosure for investigation and the investigation is completeits findings and any action it has taken or proposes to take as a result of its findings.

(4) Nothing in this section prevents the proper authority from providing a progress report in accordance with subsection (3) to a person who may make a request under subsection (1).

24 Joint action

If more than one proper authority is required by this Act to act on a public interest disclosure, the proper authorities may enter into such arrangements with each other as are necessary and reasonable:

(a) to avoid duplication of action; and

(b) to allow the resources of the authorities to be efficiently and economically used to take action; and

Part 4 Unlawful reprisals

Division 1 Unlawful reprisalsgeneral

25 Agency must protect its officers against reprisals

Within 6 months of the commencement of this Act, an agency must establish reasonable procedures to protect its officers from reprisals that are, or may be, taken against them.

26 Offence

A person must not engage, or attempt or conspire to engage, in an unlawful reprisal.

Penalty:

(a) if the offender is a natural person100 penalty units or imprisonment for 1 year, or both;

(b) if the offender is a body corporate500 penalty units.

27 Function to assist complainant

(1) Where a proper authority receives a public interest disclosure that relates to an unlawful reprisal, it shall provide the person who made the public interest disclosure with information about the protection and remedies available under this Act in relation to an unlawful reprisal.

(2) A proper authority must provide a person who has suffered an unlawful reprisal with access to counselling services if requested by the person to do so.

28 Relocation powers

(1) Where a public official in relation to an agency applies in writing to the agency for relocation and the agency considers:

(a) that there is a danger that a person will engage in an unlawful reprisal in relation to the public official if the public official continues to hold his or her current position; and

(b) that the only practical means of removing or substantially removing the danger is relocation of the public official to another position in an agency;

the agency must, as far as practicable, make arrangements for relocation of the public official to another position in an agency.

(2) Where a public official is relocated in accordance with this section, the employing agency of the public official being relocated must:

(a) meet all reasonable relocation expenses; and

(b) take all reasonable steps to ensure that the public official is placed in a position of equivalent level of salary and duties.

29 Consent to relocation

Section 28 does not authorise the relocation of a public official in relation to an agency to another position in the agency without the consent of the public official.

Division 2 Civil claims

30 Liability in damages

(1) A person who engages in an unlawful reprisal is liable in damages to any person who suffers detriment as a result.

(2) The damages may be recovered in an action as for a tort in any court of competent jurisdiction.

(3) Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section.

31 Application for injunction or order

An application to a Supreme Court of a State or Territory for an injunction or order under section 32 may be made:

(a) by a person claiming that he or she is suffering or may suffer detriment from an unlawful reprisal; or

(b) by the Public Service Commissioner or the Parliamentary Service Commissioner on behalf of a person referred to in paragraph (a).

32 Injunction or order to take action

(1) If, on receipt of an application under section 31, a court is satisfied that a person has engaged, or is proposing to engage, in:

(a) an unlawful reprisal; or

(b) conduct that amounts to or would amount to:

(i) aiding, abetting, counselling or procuring a person to engage in an unlawful reprisal; or

(ii) inducing or attempting to induce, whether by threats, promises or otherwise, a person to engage in an unlawful reprisal; or

(iii) being in any way, directly or indirectly, knowingly concerned in, or party to, an unlawful reprisal;

the court may:

(d) grant an injunction in terms the court considers appropriate.

(2) The court may, pending the final determination of an application under section 31, make an interim order in the terms referred to in paragraph (1)(c) or grant an interim injunction.

(3) The court may grant an injunction or an interim injunction under this section whether or not the person has previously engaged in conduct of that kind.

(4) The court may make an order or an interim order under this section requiring a person to take specified action, whether or not the person has previously refused or failed to take that action.

33 Undertakings as to damages and costs

(1) If the Public Service Commissioner or the Parliamentary Service Commissioner applies under section 31 for an injunction or order, no undertaking as to damages or costs is required.

(2) The Public Service Commissioner or the Parliamentary Service Commissioner may give an undertaking as to damages or costs on behalf of a person applying under section 31 and, in that event, no further undertaking is required.

Part 5 Miscellaneous

34 Confidentiality

(1) A public official must not, without reasonable excuse, make a record of, or wilfully disclose to another person, confidential information gained through the public officials involvement in the administration of this Act.

Penalty: 50 penalty units.

(2) Subsection (1) does not apply to a public official who makes a record of, or discloses, confidential information:

(a) to another person for the purposes of this Act or the regulations; or

(b) to another person, if expressly authorised under another law of the Commonwealth; or

(3) In this section:

confidential information means:

(a) information about the identity, occupation or whereabouts of a person who has made a public interest disclosure or against whom a public interest disclosure has been made; or

(b) information contained in a public interest disclosure; or

(d) information that, if disclosed, may cause detriment to a person.

35 False or misleading information

A person must not knowingly or recklessly make a false or misleading statement, orally or in writing, to a proper authority with the intention that it be acted on as a public interest disclosure.

Penalty:

(a) if the offender is a natural person100 penalty units or imprisonment for 1 year, or both;

(b) if the offender is a body corporate500 penalty units.

36 Limitation of liability

(1) A person is not subject to any liability for making a public interest disclosure or providing any further information in relation to the disclosure to a proper authority investigating it, and no action, claim or demand may be taken or made of or against the person for making the disclosure or providing the further information.

(2) Without limiting subsection (1), a person:

(a) does not commit an offence under a provision of an Act which imposes a duty to maintain confidentiality with respect to a matter; and

(b) does not breach an obligation by way of oath or rule of law or practice requiring him or her to maintain confidentiality with respect to a matter;

by reason only that the person has made a public interest disclosure with respect to that matter to a proper authority.

(3) Without limiting subsection (1), in proceedings for defamation there is a defence of absolute privilege in respect of the making of a public interest disclosure, or the provision of further information in relation to a public interest disclosure, to a proper authority.

(4) The defence of absolute privilege is not available where the complaint is frivolous, vexatious or otherwise meets the conditions specified in section 16.

37 Liability of person disclosing

A persons liability for his or her own conduct is not affected by the persons disclosure of that conduct in a public interest disclosure.

38 Regulations

The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

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Federal Register of Legislation - Australian Government

Primary content

Public Interest Disclosure (Protection of Whistleblowers) Bill 2002