Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to encourage and facilitate the disclosure of information in the public interest, by protecting public officials and others who make disclosures, and for related purposes.
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Registered 18 Jun 2007
Introduced Senate 14 Jun 2007

 

 

2004‑2005‑2006‑2007

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Public Interest Disclosures Bill 2007

 

No.      , 2007

 

(Senator Murray)

 

 

 

A Bill for an Act to encourage and facilitate the disclosure of information in the public interest, by protecting public officials and others who make disclosures, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Purpose............................................................................................... 2

4............ Act binds the Crown.......................................................................... 2

5............ Interpretation...................................................................................... 2

6............ Parliamentary immunity not affected................................................. 6

Part 2—Public interest disclosures                                                                               7

Division 1—When a public interest disclosure is made                             7

7............ Public interest disclosures.................................................................. 7

8............ Disclosures to proper authorities....................................................... 7

9............ Disclosure to persons other than proper authorities.......................... 8

10.......... Disclosures remain disclosures in certain circumstances.................. 10

Division 2—Obligations of a proper authority to whom a disclosure is made    12

11.......... Obligation to carry out investigation................................................ 12

12.......... Risk assessment by proper authority.............................................. 14

13.......... Proper authority to notify official of action taken........................... 14

14.......... Limitation on information provided by proper authority................ 15

15.......... Confidentiality.................................................................................. 15

16.......... Relationship with other Acts........................................................... 17

Part 3—Protection                                                                                                                19

17.......... Immunity for public interest disclosures.......................................... 19

18.......... Reprisal an offence........................................................................... 19

19.......... Criminal Code to apply.................................................................... 20

20.......... Remedies for detrimental action—employment appeals.................. 20

21.......... Remedies for detrimental action—civil liability............................... 21

22.......... Remedies for detrimental action—forum and quantum.................... 22

23.......... Injunctions........................................................................................ 23

24.......... Liability of person disclosing unaffected.......................................... 23

25.......... Loss of protection............................................................................ 24

Part 4—Obligations of Agency Heads, Ombudsman and Public Service Commissioner   25

26.......... Internal disclosure procedures.......................................................... 25

27.......... Protection of employees................................................................... 26

28.......... Responsibilities of the Ombudsman—disclosures........................... 27

29.......... Responsibilities of the Ombudsman—reports................................. 29

30.......... Detrimental action............................................................................ 30

Part 5—Miscellaneous                                                                                                       32

31.......... False and misleading information...................................................... 32

32.......... Other laws........................................................................................ 32

33.......... Regulations....................................................................................... 32

34.......... Review.............................................................................................. 32

35.......... Schedule(s)........................................................................................ 33

Schedule 1—Amendment of Freedom of Information Act 1982                 34

Schedule 2—Amendment of Ombudsman Act 1976                                          35

 


A Bill for an Act to encourage and facilitate the disclosure of information in the public interest, by protecting public officials and others who make disclosures, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

1  Short title

                   This Act may be cited as the Public Interest Disclosures Act 2007.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Purpose

                   The purposes of this Act are to increase the transparency and accountability of institutions of government by:

                     (a)  facilitating the disclosure of information in the public interest; and

                     (b)  ensuring that disclosures of information in the public interest are properly dealt with; and

                     (c)  providing protection for public officials who disclose information in the public interest, including relief from liability at law.

4  Act binds the Crown

             (1)  This Act binds the Crown in all its capacities.

             (2)  Nothing in this Act renders the Crown liable to be prosecuted for an offence.

5  Interpretation

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

agency head means:

                     (a)  an agency head within the meaning of section 7 of the Public Service Act 1999; or

                     (b)  the Chief Executive or person responsible for any Commonwealth agency or body subject to the Financial Management and Accountability Act 1997; or

                     (c)  the Chief Executive or person responsible for any Commonwealth agency or body subject to the Commonwealth Authorities and Companies Act 1997.

detrimental action means any act or omission which causes detriment to any person, in which it was a ground of any significance that a public official had made or may make a public interest disclosure, and includes but is not limited to:

                     (a)  personal injury or prejudice to safety;

                     (b)  property damage or loss;

                     (c)  intimidation or harassment;

                     (d)  adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business;

                     (e)  dismissal from employment;

                      (f)  reduction of pay or duties;

                     (g)  termination of contracts or services;

                     (h)  bringing a civil action alleging breach of a duty of secrecy or confidentiality or of any other restriction on disclosure;

                      (i)  disciplinary action under a written law;

                      (j)  threats of detriment;

                     (k)  financial loss.

improper conduct means a breach or attempted breach of the standards of conduct that would be expected of a public official by reasonable persons with knowledge of the duties, powers and authority of the position, and includes but is not limited to:

                     (a)  conduct that involves, or that is engaged in for the purpose of, a public official abusing his or her office as a public official;

                     (b)  conduct of a person (whether or not a public official) that adversely affects, or could adversely affect, either directly or indirectly, the honest performance of a public official’s or a public body’s functions; or

                     (c)  conduct of a public official that amounts to the performance of any of his or her functions as a public official dishonestly or with inappropriate partiality;

                     (d)  conduct of a public official, a former public official or a public body that amounts to a breach of public trust;

                     (e)  conduct of a public official, a former public official or a public body that amounts to the misuse of information or material acquired in the course of the performance of his, her or its functions as such (whether for the benefit of that person or body or otherwise);

                      (f)  conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice;

                     (g)  conduct that, having regard to the duties and powers of a public official, is engaged in for the purpose of corruption of any other kind;

                     (h)  a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (g).

journalist  means a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media.

matter of national environmental significance has the meaning given in Part 3 of the Environment Protection and Biodiversity Conservation Act 1999.

member of the Australian Federal Police has the meaning given in the Australian Federal Police Act 1979.

member of the Australian Defence Force means an officer, soldier, sailor or airman under the Defence Act 1903.

private grievance includes any complaint by a public official about:

                     (a)  action taken by his or her employer in relation to his or her employment, other than alleged detrimental action under this Act, that otherwise raises no issues of public interest; and

                     (b)  conduct taken against him or her personally by any individual or individuals, other than alleged detrimental action under this Act, that otherwise raises no issues of public interest.

public interest information means information that shows, tends to show, or that the person providing the information believes on reasonable grounds shows or tends to show, that in relation to the discharge of a Commonwealth public function, a person, authority or corporation has undertaken or proposes to undertake:

                     (a)  improper conduct; or

                     (b)  a serious breach of the Australian Public Service Code of Conduct established by section 13 of the Public Service Act 1999 (other than a breach giving rise only to a private grievance); or

                     (c)  a serious breach of the Parliamentary Service Code of Conduct established by section 13 of the Parliamentary Service Act 1999 (other than a breach giving rise only to a private grievance); or

                     (d)  administrative action that is unjust, discriminatory, unfair or otherwise wrong under the Ombudsman Act 1976; or

                     (e)  action contrary to the Financial Management and Accountability Act 1997; or

                      (f)  abuse of a decision‑making power granted under Commonwealth legislation; or

                     (g)  a misuse of public resources (other than an alleged misuse based on mere disagreement over policy that may properly be adopted about amounts, purposes or priorities of expenditure); or

                     (h)  an act or omission that constitutes an offence under a law of the Commonwealth; or

                      (i)  an act or omission that involves a substantial risk of:

                              (i)  injury to a person; or

                             (ii)  prejudice to the security of the Commonwealth; or

                            (iii)  a significant impact on a matter of national environmental significance; or

                      (j)  detrimental action against any person as a result of a public interest disclosure.

public official includes:

                     (a)  any person employed by the Commonwealth of Australia, whether as an Australian Public Service employee or by any other Commonwealth body or agency;

                     (b)  a senator or member of the House of Representatives;

                     (c)  a judicial officer;

                     (d)  a person, organisation or corporation contracted to provide goods or services to a Commonwealth department or agency;

                     (e)  an employee of a person, organisation or corporation contracted to provide goods or services to a Commonwealth department or agency;

                      (f)  a person undertaking any activities as a volunteer subject to the supervision of a Commonwealth department or agency;

                     (g)  a person employed under the Members of Parliament (Staff) Act 1984;

                     (h)  a member of the Australian Defence Force;

                      (i)  a person who has occupied, but no longer occupies, one of the positions described in this definition, but only with respect to conduct which occurred while he or she occupied a position described in this definition.

6  Parliamentary immunity not affected

             (1)  Nothing in this Act affects the immunity of proceedings in Parliament under section 49 of the Constitution and the Parliamentary Privileges Act 1987.

             (2)  A public interest disclosure made to the President of the Senate or the Speaker of the House of Representatives under section 8 may be referred by the President or the Speaker to a committee of the Senate or the House of Representatives, as the case may be, in accordance with a procedure of that House, or to the Senate or the House of Representatives, respectively.

 


 

Part 2Public interest disclosures

Division 1When a public interest disclosure is made

7  Public interest disclosures

             (1)  Any public official who discloses public interest information in accordance with this Part, makes a public interest disclosure.

             (2)  A public official who makes a public interest disclosure has the legal rights and protections afforded by Part 3 of this Act.

8  Disclosures to proper authorities

             (1)  Unless section 9 applies to a disclosure, a public official may only make a public interest disclosure to a proper authority.

             (2)  For the purposes of subsection (1), a proper authority is, in relation to any public interest disclosure:

                     (a)  any person who directly or indirectly supervises the public official in the performance of his or her public function; or

                     (b)  any officer of the public official’s agency who has the task of receiving or taking action on the type of information being disclosed; or

                     (c)  any agency with jurisdiction under Commonwealth legislation to investigate or otherwise deal with the information contained in the disclosure; or

                     (d)  the Ombudsman or Deputy Ombudsman appointed under the Ombudsman Act 1976, irrespective of whether the Ombudsman or Deputy Ombudsman would have jurisdiction to investigate the information were it not for this Act.

             (3)  For the purposes of subsection (1), a proper authority is also:

                     (a)  where the public interest information relates to a specific agency—the agency head; or

                     (b)  where the information relates to a possible criminal offence—a member of the Australian Federal Police; or

                     (c)  where the information relates to a Commonwealth law enforcement agency—the Australian Commission for Law Enforcement Integrity; or

                     (d)  where the information relates to a Commonwealth intelligence or security service—the Inspector‑General of Intelligence and Security; or

                     (e)  where the information relates to the misuse of public resources—the Auditor‑General; or

                      (f)  where the information relates to a member of the Australian Defence Force—the Defence Force Ombudsman; or

                     (g)  where the information relates to conduct contrary to the Australian Public Service Code of Conduct—the Public Service Commissioner; or

                     (h)  where the information relates to conduct contrary to the Parliamentary Service Code of Conduct—the Parliamentary Service Commissioner; or

                      (i)  where the information relates to a senator or a member of the House of Representatives—the President of the Senate or the Speaker of the House of Representatives, as the case requires; or

                      (j)  where the information relates to a judicial officer—the Chief Justice of the High Court of Australia, the Chief Justice of the Federal Court of Australia, the Chief Justice of the Family Court of Australia or the Chief Magistrate of the Federal Magistrates Court, as the case requires.

             (4)  If a proper authority establishes a procedure whereby a public official is permitted to disclose public interest information to a third party, including an independent contractor, for the purposes of subsections (2) and (3), then information disclosed to that third party will be taken to be a public interest disclosure as if made to the proper authority.

9  Disclosure to persons other than proper authorities

             (1)  A public official may make a public interest disclosure to a senator or member of the House of Representatives if:

                     (a)  under all the circumstances, it is reasonable for the public official to make the public interest disclosure; and

                     (b)  the disclosure has already been made to a proper authority under section 8, but has not been acted upon, to the knowledge of the public official, within 6 months of the disclosure; or

                     (c)  the disclosure has already been made to a proper authority under section 8, and acted upon, but it is reasonable for the public official to believe that the action was not adequate or appropriate; or

                     (d)  the disclosure concerns especially serious conduct, and exceptional circumstances exist to justify the public official making the disclosure.

             (2)  A public official may make a public interest disclosure to a journalist if:

                     (a)  the public official does not make the disclosure for purposes of personal gain; and

                     (b)  under all the circumstances, it is reasonable for the public official to make the public interest disclosure; and

                     (c)  the disclosure has already been made to a proper authority under section 8, or a senator or member of the House of Representatives under subsection (1), but has not been acted upon, to the knowledge of the public official, within 6 months of the disclosure; or

                     (d)  the disclosure has already been made to a proper authority under section 8 or a senator or member of the House of Representatives under subsection (1), and acted upon, but it is reasonable for the public official to believe that the action was not adequate or appropriate; or

                     (e)  the disclosure concerns especially serious conduct, and exceptional circumstances exist to justify the public official making the disclosure.

             (3)  For the purposes of this section, in determining whether it was reasonable for a public official to make a disclosure or to hold a belief relevant to the making of a disclosure, regard must be had to:

                     (a)  whether a competent public official with the same level of seniority and experience as the public official making the disclosure would have made the disclosure; and

                     (b)  the identity of the person to whom the disclosure was made; and

                     (c)  the seriousness of the conduct contained in the public interest information; and

                     (d)  whether the relevant conduct was continuing or likely to occur in the future; and

                     (e)  the substance of any action which a proper authority, a senator or a member of the House of Representatives has taken or might reasonably be expected to have taken with respect to a disclosure; and

                      (f)  any procedures relevant to the making, receipt or investigation of public interest disclosures, prescribed by regulation or published by a proper authority in accordance with this Act; and

                     (g)  whether the public official making the disclosure complied with any procedures prescribed by regulation or published by a proper authority in accordance with this Act.

             (4)  Determinations as to whether it is or was reasonable, under this section, for a public official to make a disclosure or hold a belief relevant to the making of a disclosure, are questions for a court, commission or tribunal to decide when determining the liabilities, rights or entitlements of any person or body under Part 3.

10  Disclosures remain disclosures in certain circumstances

             (1)  A public official who discloses public interest information under this Part, whose identity is not initially known to a proper authority, but whose identity subsequently becomes known to that or another proper authority, is to be taken as having always made a public interest disclosure.

Note:          This subsection means that an anonymous disclosure must be acted on in accordance with this Part, and attracts the protections in Part 3, notwithstanding that it is anonymous.

             (2)  If a public official provides further information relating to a public interest disclosure, the further information is protected by this Act as though it were a public interest disclosure.

             (3)  Subsection (2) applies regardless of:

                     (a)  whether the public official providing further information also made the initial public interest disclosure; and

                     (b)  whether the further information is provided voluntarily or in response to a request or requirement under this or any other Act.

             (4)  If a public official discloses public interest information to a person in an honest and reasonable belief that the person is a proper authority for the purposes of section 8, the public official will be taken as having made a public interest disclosure even if his or her belief is mistaken.

             (5)  A public interest disclosure may be made under this Act:

                     (a)  even though matters to which the disclosure relates occurred before the commencement of this Act; and

                     (b)  whether or not the person making the disclosure is able to identify any person whom the information concerns.

 


 

Division 2Obligations of a proper authority to whom a disclosure is made

11  Obligation to carry out investigation

             (1)  A proper authority must investigate or cause to be investigated public interest information disclosed to it under this Act if the disclosure relates to:

                     (a)  the authority;

                     (b)  a public officer or a public sector contractor of the authority; or

                     (c)  a matter or person that the authority has a function or a power to investigate.

             (2)  If public interest information is disclosed to a proper authority under this Act, who is not a proper authority in relation to the information disclosed, the person must refer the information to a more appropriate proper authority.

             (3)  If public interest information is disclosed to a proper authority under paragraph 8(2)(a) who is not also a proper authority under paragraph 8(2)(b), the proper authority must refer the information to either:

                     (a)  a proper authority under paragraph 8(2)(b) within the same agency or body; or

                     (b)  another more appropriate proper authority.

             (4)  If public interest information is disclosed to a proper authority under this Act, but the authority considers than another proper authority would be more appropriate to investigate the information, the authority may refer the information to the more appropriate proper authority.

             (5)  If public interest information is referred to a proper authority under subsection (2), (3) or (4), this section applies to that proper authority.

             (6)  A proper authority may decline to investigate, or may discontinue the investigation of, a matter raised by a disclosure if the authority considers that:

                     (a)  the matter is trivial; or

                     (b)  the disclosure is vexatious; or

                     (c)  there is no reasonable prospect of obtaining sufficient evidence due to the nature of the matters alleged or the time that has elapsed since the occurrence of the matter; or

                     (d)  the matter has been or is being adequately investigated or otherwise dealt with by any person, including a court or tribunal, to whom the same or a like disclosure of public interest information has been made; or

                     (e)  the matter has been or would be more appropriately resolved by private legal action by a complainant; or

                      (f)  the disclosure does not contain public interest information under this Act, notwithstanding that it reasonably appeared to do so at the time the disclosure was made.

             (7)  If a proper authority declines to investigate or discontinues the investigation of a matter in accordance with subsection (6), the proper authority must immediately notify the Ombudsman of this decision.

             (8)  If a proper authority determines to investigate a matter contained in a public interest disclosure, the proper authority must notify the Ombudsman of the commencement of the investigation, the nature of the disclosure, and the subsequent results of the investigation, according to the procedure established by Ombudsman for this purpose under Part 4.

             (9)  If, having investigated a public interest disclosure, a proper authority determines that any public official or body may be, may have been, or may in the future be, involved in conduct contrary to the public interest, the proper authority must take appropriate action to:

                     (a)  prevent the conduct to which the disclosure relates from continuing or occurring in future; or

                     (b)  refer the matter to another proper authority, body or organisation having power to take further action; or

                     (c)  commence disciplinary or criminal action, or enable disciplinary or criminal proceedings to be commenced, against a person responsible for the conduct.

12  Risk assessment by proper authority

             (1)  A proper authority who receives a public interest disclosure must, at the earliest practicable time, make or cause to be made an assessment of the risks that detrimental action will be taken against any person as a result of the disclosure.

             (2)  A proper authority who investigates or refers a public interest disclosure must ensure that all actions by the authority under this Act have due regard to the risk assessment made under subsection (1) or any similar later assessments.

13  Proper authority to notify official of action taken

             (1)  If a proper authority receives a public interest disclosure and declines to investigate or discontinues the investigation of a matter under subsection 11(6), the authority must as soon as practicable notify the public official who made the disclosure of:

                     (a)  the decision not to investigate, or to discontinue the investigation; and

                     (b)  the reasons for the decision; and

                     (c)  the fact that this decision has been notified to the Ombudsman under subsection 11(7).

             (2)  If a proper authority decides to investigate any aspect of a public interest disclosure, the authority must, subject to section 14, not more than 3 months after receiving the disclosure, notify the public official who made the disclosure of the action taken or proposed to be taken in relation to the disclosure.

             (3)  A public official who makes a public interest disclosure may request a proper authority to provide a progress report on the action being taken in relation to the disclosure.

             (4)  If an investigation into a public interest disclosure is not complete, the proper authority investigating the disclosure must as soon as practicable provide a progress report in response to a request under subsection (3), unless in all the circumstances it is not reasonable to do so.

             (5)  If an investigation into a public interest disclosure is complete, the proper authority who investigated the disclosure must advise the public official who made the disclosure of:

                     (a)  the outcome of the investigation and any action the proper authority has taken or proposes to take as a result of the investigation; and

                     (b)  the reasons for taking the action that has been taken or that is proposed to be taken, or if no action is to be taken, the reasons for not taking any action.

             (6)  This section only applies if the identity of the public official who made the disclosure is known, or becomes known.

14  Limitation on information provided by proper authority

                   A proper authority must not, in a notification or report under section 13, give information that, in the authority’s opinion, would be likely to affect adversely:

                     (a)  any person’s safety;

                     (b)  the investigation of an offence or possible offence; or

                     (c)  necessary confidentiality about the existence or identity of any person who has provided information to the investigation other than the public official being given the information.

15  Confidentiality

             (1)  A person must not give information to any other person that might identify or tend to identify anyone as a public official who has made a public interest disclosure.

             (2)  Subsection (1) does not apply if:

                     (a)  the public official who made the public interest disclosure consents to the giving of the information; or

                     (b)  the giving of the information is necessary in order to enable the matter to be investigated effectively; or

                     (c)  the giving of the information is necessary in order to enable the provision of support, protection or assistance (including legal or counselling assistance) to any person as a result of the disclosure; or

                     (d)  the information is authorised or required to be given by law, including in satisfaction of the rules of natural justice; or

                     (e)  the giving of the information was for official purposes and in the public interest; or

                      (f)  the public interest disclosure was made under section 9, and the identity of the public official is already in the public domain.

             (3)  A reasonable time before giving the information in the circumstances described in paragraph (2)(b), (c), (d) or (e), the person giving the information must take all reasonable steps to advise the public official whose identity is to be disclosed:

                     (a)  that the information is to be given; and

                     (b)  the reason that the information is being given.

             (4)  A person must not give information to any other person that might identify or tend to identify anyone as a person about whom a public interest disclosure has been made, or to whom it relates.

             (5)  Subsection (4) does not apply if:

                     (a)  the person about whom the public interest disclosure was made, or to whom it relates, consents to the giving of the information; or

                     (b)  the giving of the information is necessary in order to enable the matter to be investigated effectively; or

                     (c)  the giving of the information is necessary in order to enable the provision of support, protection or assistance (including legal or counselling assistance) to any person as a result of the disclosure; or

                     (d)  the information is authorised or required to be given by law; or

                     (e)  the giving of the information was for official purposes and in the public interest; or

                      (f)  the giving of the information is necessary for the purposes of action under section 11(8) or any other action arising from an investigation, including reports authorised by this or any other Act; or

                     (g)  there are reasonable grounds to believe that the information must be given to prevent or minimise the risk of injury to any person or damage to any property; or

                     (h)  the public interest disclosure was made under section 9 of the Act, and the identity of the person concerned is already in the public domain.

             (6)  If a person gives information contrary to this section, and the person is a public official, an agency head may impose sanctions against that official in accordance with section 15 of the Public Service Act 1999, as though the official had breached the Australian Public Service Code of Conduct.

             (7)  If a person gives information contrary to this section, and the giving of the information causes detriment to or contributes to detrimental action under this Act, proceedings may be taken against the person for an offence under section 18 or for liability under section 21, or both.

16  Relationship with other Acts

             (1)  If a matter contained in a public interest disclosure also constitutes a complaint, allegation, matter or information under another Act, a proper authority must investigate or deal with the matter in accordance with that Act notwithstanding that it is also a public interest disclosure under this Act.

             (2)  If a proper authority has powers under another Act to investigate or otherwise deal with any matter contained in a public interest disclosure, the disclosure is to be taken as a complaint, allegation, matter or information to which those powers apply, notwithstanding that the disclosure may not have been expressly made under that Act.

             (3)  If a proper authority has powers or is subject to requirements under another Act in relation to the investigation of any matter contained in a public interest disclosure, the provisions of this Act are to be taken as also applying to the investigation of the disclosure, other than in the event of direct inconsistency, in which case the provisions of the other Act will prevail.

             (4)  If a proper authority declines to investigate, or discontinues the investigation of, a matter under this Act, nothing in this Act prevents a proper authority from investigating or otherwise dealing with the same matter under any other Act.

 


 

Part 3Protection

  

17  Immunity for public interest disclosures

             (1)  A public official who makes a public interest disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the disclosure.

             (2)  Without limiting subsection (1), a public official who makes a public interest disclosure:

                     (a)  subject to section 25, has a defence of absolute privilege in a proceeding for defamation arising from any publication of information contained in the disclosure; and

                     (b)  does not commit an offence under a provision of any other Act that imposes a duty to maintain confidentiality with respect to the matter or any other restriction on the disclosure of the information; and

                     (c)  does not breach an obligation, by way of oath or rule of law or practice or under an agreement, requiring the person to maintain confidentiality or otherwise restricting the disclosure of information with respect to the matter; and

                     (d)  is not, for doing so, liable:

                              (i)  to any disciplinary action under a written law or code of conduct; or

                             (ii)  to be dismissed; or

                            (iii)  to have his or her employment dispensed with or otherwise terminated.

18  Reprisal an offence

             (1)  A person must not take, or threaten to take detrimental action against any other person because a public official has made, or may make, a public interest disclosure.

Penalty:  120 penalty units or imprisonment for 2 years.

             (2)  A person is guilty of an offence against this section only if the fact that a public official had made, or might make, a public interest disclosure is materially significant to the taking of the detrimental action, notwithstanding that there may have also been other grounds for taking the action.

             (3)  Proceedings for an offence against this section may be brought by:

                     (a)  the Director of Public Prosecutions; or

                     (b)  the Australian Federal Police; or

                     (c)  a proper authority who has investigated the public interest disclosure to which the alleged offence relates; or

                     (d)  the agency head who employs, or employed, the public official who made the public interest disclosure to which the alleged offence relates; or

                     (e)  if the victim of the alleged offence is an Australian Public Service employee—the Public Service Commissioner; or

                      (f)  the Ombudsman; or

                     (g)  the victim of the alleged offence.

             (4)  Proceedings for an offence against this section must be brought within 2 years of the occurrence of the alleged offence.

19  Criminal Code to apply

                   Division 11 of the Criminal Code applies to all offences in this Part.

Note:          Division 11 of the Criminal Code extends criminal liability to those who, for instance, attempt to commit an offence of inciting others to commit an offence.

20  Remedies for detrimental action—employment appeals

             (1)  This section applies to a public official who, under an Act, may appeal against, or apply for a review of, any of the following actions:

                     (a)  disciplinary action taken against the official;

                     (b)  the appointment or transfer of the official or another public official to a position as a public official; or

                     (c)  unfair treatment of the official.

             (2)  Whether or not an Act specifies grounds for the appeal or application, the official may also appeal or apply to have the action set aside because it was detrimental action taken in relation to a public interest disclosure.

             (3)  Subsection (2) applies even if the decision on the hearing of the appeal or application is in the form of a recommendation.

21  Remedies for detrimental action—civil liability

             (1)  If a person (the defendant), whether intentionally or otherwise:

                     (a)  takes or threatens to take detrimental action against another person (the claimant) because a public official has made or may make a public interest disclosure; or

                     (b)  fails to take action in fulfilment of a duty, under this or any other Act, to protect another person (the claimant) from detrimental action because a public official has made or may make a public interest disclosure; and

                     (c)  the claimant suffers loss or damage (whether economic or non‑economic) as a result of the actual or threatened action, or the failure;

the claimant may recover the amount of loss or damage by proceedings against the defendant.

             (2)  A person is liable under subparagraph (1)(a)(i) only if the fact that a public official had made, or might make, a public interest disclosure was a ground of any significance in the taking of the detrimental action, notwithstanding that there also may have been other grounds for the taking of the action.

             (3)  In proceedings pursuant to subparagraph (1)(a)(ii), it is a defence for the defendant to prove that he or she:

                     (a)  was not knowingly involved in the detrimental action; and

                     (b)  did not know and could not reasonably have been expected to know about the detrimental action; and

                     (c)  could not, by the exercise of reasonable care, have prevented, stopped, reversed or minimised the detrimental action.

             (4)  Proceedings for loss or damage under this section may also be brought by a proper authority, with the consent of the claimant.

             (5)  If an application for compensation is brought by a proper authority, the authority is not required to give undertakings as to damages or costs, and unless exceptional circumstances apply, must not be required to pay the defendant’s costs.

             (6)  Proceedings under this section must be commenced within 6 years after the day on which the cause of action arose.

             (7)  In proceedings under this section, a finding of fact or guilt made by a court in proceedings for an offence under section 18 is prima facie evidence of detrimental action.

22  Remedies for detrimental action—forum and quantum

             (1)  If proceedings pursuant to section 21 arise between a claimant who is an employee or a former employee, and a defendant who is or was the claimant’s employer, the proceedings may be taken in either:

                     (a)  the Australian Industrial Relations Commission, as if hearing an application for relief under section 643 of the Workplace Relations Act 1996 but without limitation as to the type of detrimental action suffered; or

                     (b)  the Federal Court or the Federal Magistrates Court, as if hearing an application for a civil remedy under section 320 or 413 of the Workplace Relations Act 1996 but without limitation as to the circumstances giving rise to the proceedings.

             (2)  If proceedings pursuant to section 21 arise between any other persons, the proceedings may be taken in either:

                     (a)  the Human Rights and Equal Opportunity Commission, or the Federal Court, or the Federal Magistrates Court, as if hearing a complaint of unlawful discrimination under Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 but without limitation as to the type of detrimental action suffered; or

                     (b)  any other federal or State court of competent jurisdiction.

             (3)  Irrespective of forum, the commission, tribunal or court hearing the proceedings pursuant to section 21 may award such compensation for loss and damage as it sees fit, including exemplary damages, without limit as to quantum.

23  Injunctions

             (1)  If a person (the defendant) has taken, takes or proposes to take detrimental action against another person (the claimant) because or substantially because a public official has made or may make a public interest disclosure, the claimant may apply to the Federal Court or the Federal Magistrates Court for:

                     (a)  an injunction restraining the person from taking the action; or

                     (b)  if the defendant is a Commonwealth officer, a writ of certiorari, mandamus or prohibition to prevent the detrimental action.

             (2)  In response to an application under subsection (1), the Federal Court or the Federal Magistrates Court may make such orders and grant such injunctive relief as it sees fit.

             (3)  An application for injunctive relief under this section may also be brought by a proper authority, with the consent of the claimant.

             (4)  If an application for injunctive relief is brought by a proper authority, the authority is not required to give undertakings as to damages or costs, and unless exceptional circumstances apply, must not be required to pay the defendant’s costs.

24  Liability of person disclosing unaffected

                   Notwithstanding section 17, a public interest disclosure by a public official does not affect that public official’s own liability for:

                     (a)  any matter to which the information relates, including his or her own misconduct; and

                     (b)  any contravention of this Act, including, without reasonable or lawful excuse:

                              (i)  breaches of confidentiality; or

                             (ii)  breaches of lawful directions regarding the conduct of an investigation, including the maintaining of secrecy and the provision of further information.

25  Loss of protection

                   Nothing in this Part applies, or continues to apply, to any public interest disclosure which the public official making the disclosure knows to contain false or misleading information.

Part 4Obligations of Agency Heads, Ombudsman and Public Service Commissioner

26  Internal disclosure procedures

             (1)  The Ombudsman must, within one year of the commencement of this Act, publish model internal disclosure procedures (the model procedures) to guide proper authorities and Commonwealth agencies in the administration of this Act.

             (2)  The Ombudsman must consult the Public Service Commissioner when developing or revising the model procedures.

             (3)  Agency heads must, within two years of the commencement of this Act, publish internal disclosure procedures consistent with the model procedures.

             (4)  The internal disclosure procedures under subsection (3) must set out:

                     (a)  why public interest disclosures are important to the agency;

                     (b)  who is entitled to make public interest disclosures within, about or in respect of the agency;

                     (c)  who are proper authorities for receiving public interest disclosures about the agency, and how they may be contacted;

                     (d)  how public interest disclosures are to be managed and investigated within the agency;

                     (e)  procedures to meet the confidentiality requirements of this Act;

                      (f)  how the risk of detrimental action against public officials who make public interest disclosures is to be assessed and managed;

                     (g)  who is responsible for informing agency employees of their entitlements and obligations under this Act;

                     (h)  who is responsible for providing support, guidance and protection to agency employees who make public interest disclosures under this Act; and

                      (i)  how the effective implementation of the procedures will be monitored and assessed.

             (5)  Agency heads must, within two years of the commencement of this Act, designate a specific officer within the agency as having responsibility for coordinating the receipt, investigation, notification and referral of public interest disclosures relating to the agency.

             (6)  The officer designated for the purposes of subsection (5) is a proper authority pursuant to paragraph 8(2)(b) of this Act.

             (7)  Any agency, including any proper authority, who has a responsibility to prepare an annual report must include in their annual report information describing:

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

                     (b)  the number of public interest disclosures investigated over the reporting period and wholly or partly substantiated; and

                     (c)  the results of actions taken over the reporting period as a result of investigations.

27  Protection of employees

             (1)  Agency heads must take reasonable steps to protect from detrimental action, or the threat of detrimental action, any employee of the agency who makes a public interest disclosure.

             (2)  As soon as practicable after the agency head becomes aware of a public interest disclosure relating to it, the agency head must ensure an assessment is made of the risks that detrimental action will be taken against any employee in relation to the disclosure.

             (3)  If the agency head is the proper authority who received or is investigating the disclosure, the risk assessment made under section 12 satisfies the requirement under subsection (2).

             (4)  The agency head must ensure that all actions by the agency under this Act have due regard to the risk assessment made under subsection (2), and any similar later assessments.

             (5)  If an employee of an agency, or a person directly or indirectly responsible for supervising an employee, considers that:

                     (a)  it is likely that detrimental action will be taken against the employee; and

                     (b)  relocation of the employee to an alternative position provides the only way to remove or reduce the risk of detrimental action;

an agency head must, with the consent of the employee, do everything necessary and possible to relocate the employee.

             (6)  At the earliest practicable time after the agency head becomes aware, a proper authority or the agency head must notify the Ombudsman of:

                     (a)  any information, complaint or allegation that a person may have suffered detrimental action because of a public interest disclosure; and

                     (b)  details of any risk assessments made by or for the proper authority under section 12 or the agency head under subsection (2); and

                     (c)  advice on how the proper authority or the agency head intends to investigate or remedy the alleged detrimental action.

28  Responsibilities of the Ombudsman—disclosures

             (1)  The Ombudsman must, within a year of the commencement of this Act, publish a protocol setting out when and how proper authorities are to notify the Ombudsman of public interest disclosures pursuant to subsections 11(7) and (8).

             (2)  The Ombudsman may review any decision of a proper authority not to investigate a disclosure under subsection 11(6), and as a result may:

                     (a)  affirm the decision that some or all of the disclosure will not be investigated; or

                     (b)  reverse or vary the decision, so as to:

                              (i)  require the proper authority to investigate the disclosure; or

                             (ii)  refer the disclosure to another proper authority to investigate; or

                            (iii)  investigate the disclosure as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint.

             (3)  The Ombudsman may review any decision of a proper authority to investigate a disclosure notified to him or her pursuant to subsection 11(8), and as a result may:

                     (a)  affirm the decision that some or all of the disclosure will be investigated by the proper authority; or

                     (b)  reverse or vary the decision, so as to:

                              (i)  require the proper authority to cease investigating the disclosure; or

                             (ii)  refer the disclosure to another proper authority to investigate; or

                            (iii)  investigate the disclosure as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint were it not for this Act.

             (4)  The Ombudsman may review the outcome of any investigation by a proper authority notified to him or her pursuant to subsection 11(8), and as a result may:

                     (a)  affirm the outcome of the investigation; or

                     (b)  recommend that the matter be further investigated; or

                     (c)  refer the disclosure to another proper authority to be further investigated; or

                     (d)  further investigate the disclosure as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint were it not for this Act.

             (5)  In reviewing a decision of a proper authority under subsection (2) or (3) or the outcome of an investigation under subsection (4), the Ombudsman may make directions or recommendations in relation to:

                     (a)  how a proper authority should investigate a matter; and

                     (b)  whether the Ombudsman should oversee or supervise an investigation, or conduct a joint investigation; and

                     (c)  the date by which an investigation should be completed; and

                     (d)  any measures that should be taken to protect any person or to prevent detrimental action in the course of an investigation.

             (6)  Subsections (2), (3), (4) and (5) do not apply to decisions about an investigation or the outcome of an investigation of a disclosure that is made or referred to a proper authority under paragraph 8(3)(i) or 8(3)(j).

Note:          This subsection means that the Ombudsman cannot reverse or vary any decision to investigate or not to investigate a disclosure, or review the outcome any investigation that concerns a member of Parliament or a judicial officer, and is confined to reporting the numbers of disclosures handled by the legislative and judicial branches in the annual report on the Act.

29  Responsibilities of the Ombudsman—reports

             (1)  After the end of each financial year, the Ombudsman must cause to be tabled in each house of the Parliament a report on:

                     (a)  the numbers and outcomes of investigations of public interest disclosures received by proper authorities under the Act; and

                     (b)  the numbers of decisions by proper authorities reviewed and varied by the Ombudsman under this section; and

                     (c)  levels of compliance with this Act; and

                     (d)  any other matter that the Ombudsman considers relevant to the operation of this Act.

             (2)  Agency heads must, at the end of each financial year, provide the Ombudsman with information concerning:

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

                     (b)  the number of public interest disclosures investigated and wholly or partly substantiated; and

                     (c)  the results of actions taken as a result of investigations; and

                     (d)  any other matters requested by the Ombudsman.

             (3)  The report prepared under subsection (1) must be prepared in accordance with guidelines approved by the Joint Committee of Public Accounts and Audit.

             (4)  In preparing a report under subsection (1), the Ombudsman:

                     (a)  must consult the Public Service Commissioner; and

                     (b)  must have regard to the reporting responsibility of the Public Service Commissioner under section 44 of the Public Service Act 1999; and

                     (c)  may enter into an arrangement with the Public Service Commissioner to report jointly on the administration of this Act in Australian Public Service agencies.

             (5)  The Ombudsman may at any time cause to be presented to the Parliament a report on any matter arising in connection with the exercise of his or her functions under this Act.

30  Detrimental action

             (1)  On notification under subsection 27(6) of any information that a person may have suffered detrimental action because of a public interest disclosure, the Ombudsman must:

                     (a)  review the information provided by the agency; and

                     (b)  subject to subsection (2), determine the most appropriate proper authority to investigate or remedy the alleged detrimental action, and refer it to that proper authority; or

                     (c)  investigate the information as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint were it not for this Act.

             (2)  If information that a person may have suffered detrimental action concerns an Australian Public Service employee, the Ombudsman must refer the matter to the Public Service Commissioner for inquiry under the Public Service Act 1999. The Ombudsman must do so even if the Ombudsman also refers the matter to any other proper authority.

             (3)  Subsections 28(2) to (5) apply to the investigation of information that a person may have suffered detrimental action because of a public interest disclosure, including investigations by the Public Service Commissioner, in the same way that they apply to any other public interest disclosure.

             (4)  Subsections 27(6) and 28(2) to (5) and this section apply to information that a person may have suffered detrimental action because of a public interest disclosure, even if the disclosure was made or referred to a proper authority under paragraph 8(3)(i) or 8(3)(j).

Note:          This subsection means that the Ombudsman can review and act on cases of apparent reprisal arising from public interest disclosures involving the legislative and judicial branches, even though unable to review decisions and outcomes in relation to the original disclosure.

             (5)  If, after investigation by a proper authority (including the Public Service Commissioner) or after the Ombudsman’s own investigation:

                     (a)  the Ombudsman is satisfied there is a reasonable likelihood that a person has suffered detrimental action because of a public interest disclosure; and

                     (b)  no action has been taken by any other agency or person to remedy the detrimental action, including proceedings under section 18, 21 or 23;

the Ombudsman must take all reasonable steps to ensure that action is taken to remedy the detrimental action, including:

                     (c)  making a report under subsection 29(5); or

                     (d)  bringing criminal proceedings under paragraph 18(5)(f); or

                     (e)  bringing proceedings for loss or damage under subsection 21(6); or

                      (f)  bringing proceedings for injunctive relief under subsection 23(3).


 

Part 5Miscellaneous

31  False and misleading information

                   A person must not knowingly provide information to a proper authority under this Act, including information that the person intends to be acted on as a public interest disclosure, that is false or misleading in a material particular.

Penalty:  120 penalty units or imprisonment for 2 years.

32  Other laws

                   The protection given by this Act is in addition to, and does not derogate from, any privilege, protection or immunity existing apart from this Act.

33  Regulations

                   The Governor‑General may make such regulations as are necessary or convenient to be prescribed for giving effect to this Act.

34  Review

             (1)  The Minister must cause to be carried out an independent review of the operation of this Act three years after the date of its commencement.

             (2)  The review must be conducted by a current or former judge of a Commonwealth, State or Territory superior court of record, a former Ombudsman, or a former member of the Administrative Appeals Tribunal (the reviewing officer).

             (3)  The reviewing officer must consider:

                     (a)  the extent to which the purposes of this Act have been attained; and

                     (b)  the administration of this Act; and

                     (c)  such other matters as appear to the reviewer to be relevant.

             (4)  The reviewing officer must prepare a report based on the review and, as soon as practicable after its preparation, and in any case, within six months after the third anniversary of the commencement of this Act, must cause the report to be presented to the Parliament.

35  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendment of Freedom of Information Act 1982

  

1  After section 47A

Insert:

47B  Public interest disclosures

             (1)  A document is an exempt document if it contains information that might identify or tend to identify anyone as a public official who has made a public interest disclosure in accordance with subsection 15(1) of the Public Interest Disclosures Act 2007.

             (2)  A document is an exempt document if it contains information that might identify or tend to identify anyone as a person about whom a public interest disclosure has been made, or to whom it relates, contrary to subsection 15(4) of the Public Interest Disclosures Act 2007.

 


 

 

Schedule 2Amendment of Ombudsman Act 1976

  

1  After subsection 5(4)

Insert:

          (4A)  Nothing in subsection (2) prevents the Ombudsman from investigating detrimental action taken against any person as a result of the making of a public interest disclosure under the Public Interest Disclosures Act 2007, including:

                     (a)  detrimental action taken by or against persons employed in the Australian Public Service or the service of a prescribed authority; and

                     (b)  detrimental action arising from a public interest disclosure made about or concerning a member of Parliament or a judicial officer.