A Bill for an Act to strengthen public integrity by encouraging and facilitating the disclosure of corruption, maladministration and other wrongdoing in the Commonwealth public sector, by protecting public officials who make disclosures, 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 (Whistleblower Protection) Act 2012.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | |
| 2. Sections 3 to 62 | A single day to be fixed by Proclamation. However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Objects
The objects of this Act are to strengthen public integrity by:
(a) encouraging and facilitating the making of public interest disclosures by public officials; and
(b) ensuring public officials who make public interest disclosures are supported and protected from detrimental action, victimisation or other reprisals in relation to a disclosure; and
(c) ensuring public interest disclosures are properly investigated and dealt with.
4 Definitions
In this Act:
action includes inaction.
agency has the meaning given by section 10.
Australia, when used in a geographical sense, includes the external Territories.
chief executive officer of a court or tribunal includes:
(a) the Chief Executive and Principal Registrar of the High Court of Australia; and
(b) the Registrar of the Federal Court of Australia; and
(c) the Chief Executive Officer of the Family Court of Australia; and
(d) the Chief Executive Officer of the Federal Magistrates Court; and
(e) the Registrar of the Administrative Appeals Tribunal.
code of conduct means:
(a) the Code of Conduct within the meaning of the Public Service Act 1999; or
(b) the Code of Conduct within the meaning of the Parliamentary Service Act 1999; or
(b) any other code of conduct that binds a public official in connection with his or her office or position as a public official.
Commonwealth authority has the same meaning as in the Commonwealth Authorities and Companies Act 1997.
Commonwealth company has the same meaning as in the Commonwealth Authorities and Companies Act 1997.
contact details, for a discloser, means details of how a disclosure officer or investigating entity may contact the discloser about the public interest disclosure.
contracted service provider, for a Commonwealth contract:
(a) means a person who is:
(i) a party to a contract with an agency or with the Commonwealth; and
(ii) responsible for the provision of services to any person (whether directly or indirectly, and whether or not that person is the Commonwealth or an agency); and
(b) includes a subcontractor for a Commonwealth contract.
corrupt conduct has the meaning given by section 9.
Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency.
detrimental action has the meaning given by section 40.
disclosable conduct has the meaning given by section 9.
disclose includes re‑disclose.
discloser means a person who makes a public interest disclosure.
disclosure includes any part of a disclosure.
disclosure officer, for a public interest disclosure, has the meaning given by section 12.
excluded judicial or tribunal matters has the meaning given by section 9.
Executive Agency has the same meaning as in the Public Service Act 1999.
foreign public official has the same meaning as in the Criminal Code.
head of an agency has the meaning given by section 14.
integrity agency has the meaning given by section 10.
intelligence agency has the meaning given by section 10.
investigate includes re‑investigate.
investigating entity for a public interest disclosure, has the meaning given by section 24.
investigative agency has the meaning given by section 10.
maladministration has the meaning given by section 9.
Ombudsman means the Commonwealth Ombudsman.
public interest disclosure has the meaning given by section 8.
public interest disclosure procedures means procedures under section 35.
public official, for an agency, has the meaning given by section 11.
relates, to an agency—see section 13.
sensitive defence, intelligence or law enforcement information has the meaning given by section 15.
statutory officeholder means an individual who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:
(a) a judicial officer or a member of tribunal, when exercising judicial power or a power of the tribunal; or
(b) a person who holds an office in an organisation or an association registered under the Fair Work (Registered Organisations) Act 2009; or
(c) a person holding office under:
(i) the Corporations Act 2001; or
(ii) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or
(iii) the Australian Capital Territory (Self‑Government) Act 1988; or
(iv) the Northern Territory (Self‑Government) Act 1978; or
(v) the Norfolk Island Act 1979.
5 Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not:
(a) apply to an authority of the Crown; or
(b) affect any liability of any employee or agent of the Crown to be prosecuted for an offence; or
(c) apply in relation to section 45 (Vicarious liability).
6 Extension to external Territories
This Act extends to every external Territory.
7 Extension to things outside Australia
This Act extends to acts, omissions, matters and things outside Australia.
Part 2—Scope of the Act
8 Meaning of public interest disclosure
(1) For the purposes of this Act, a public interest disclosure:
(a) is a disclosure of information by a public official about disclosable conduct that:
(i) the public official honestly believes on reasonable grounds tends to show disclosable conduct; or
(ii) tends to show disclosable conduct regardless of whether the public official honestly believes on reasonable grounds the information tends to show the conduct; and
(b) includes any assistance or further information given by the public official during an investigation of the information mentioned in paragraph (a); and
(c) may include information relating to one or more instances of disclosable conduct; and
(d) is a disclosure made after the commencement of this section, but which may include information about disclosable conduct that occurred prior to commencement of this section.
(2) However, a public interest disclosure does not include a disclosure of information by a person:
(a) that the person knows is false or misleading; or
(b) that relates entirely to a disagreement in relation to a policy about amounts, purposes or priorities of public expenditure; or
(c) that relates entirely to excluded judicial or tribunal matters.
Note: If a disclosure is not a public interest disclosure, the person disclosing the information is not protected under this Act and there is no obligation for an agency to investigate the disclosure under this Act.
(3) For the purposes of this Act, excluded judicial or tribunal matters means:
(a) conduct of a judicial officer of a court, the chief executive officer of a court, or a member of the staff of the chief executive officer of a court; or
(b) conduct of a member of a tribunal, the chief executive officer of a tribunal, or a member of the staff of the chief executive officer of a tribunal;
when exercising a power, or performing a function, of a judicial nature, or relating to the hearing or determination of matters before the court or tribunal; unless:
(c) the conduct could constitute a criminal offence; or
(d) the conduct is entirely of an administrative nature.
9 Meaning of disclosable conduct
(1) For the purposes of this Act, disclosable conduct means any of the following:
(a) corrupt conduct engaged in by any person, agency or public official;
(b) action of an agency or public official that is any of the following:
(i) maladministration that adversely affects a person’s interests in a substantial and specific way;
(ii) a substantial misuse of public money or public property;
(iii) a substantial and specific danger to public health or safety;
(iv) a substantial and specific danger to the environment;
(v) detrimental action towards, or victimisation of, any person relating to a public interest disclosure.
(2) In this section:
corrupt conduct means:
(a) for any person, agency or public official—conduct of, or involving, the person or agency that adversely affects, or could adversely affect, directly or indirectly, the honest and impartial exercise of a function of a public official or agency, including a foreign public official; or
(b) for a public official or agency—conduct of, or involving, the person or agency that is or involves:
(i) the exercise of the person’s functions as a public official, or the agency’s functions, in a way that is not honest or is not impartial; or
(ii) a breach of public trust; or
(iii) a misuse of information or material acquired in or in relation to the exercise of the functions of the public official or agency, whether the misuse is for the benefit of the public official or agency or the benefit of someone else; or
(iv) conduct that perverts, or is engaged in for the purpose of perverting, the course of justice; or
(v) conduct that, having regard to the duties and powers of the public official, or the functions of the agency, involves, or is engaged in for the purpose of, corruption of any other kind; or
(c) a conspiracy or attempt to engage in conduct mentioned in paragraph (a) or (b).
maladministration means an administrative action or a matter of administration that is:
(a) contrary to a law of the Commonwealth; or
(b) unreasonable, unjust, oppressive or improperly discriminatory; or
(c) negligent; or
(d) based wholly or partly on improper motives.
misuse includes theft or misappropriation.
public health or safety includes health or safety of people:
(a) under lawful care or control; or
(b) using community facilities or services provided by the public or private sector; or
(c) in workplaces.
public money has the same meaning as in the Financial Management and Accountability Act 1997.
public property has the same meaning as in the Financial Management and Accountability Act 1997.
10 Meaning of agency
(1) For the purposes of this Act, agency means:
(a) a Department; or
(b) an Executive Agency; or
(c) a Commonwealth authority; or
(d) a Commonwealth company; or
(e) the Defence Force; or
(f) the Australian Federal Police; or
(g) an intelligence agency; or
(h) an integrity agency; or
(i) any other body corporate established for a public purpose by or under a law of the Commonwealth, other than an incorporated company or association; or
(j) any other unincorporated body, established for a public purpose by or under a law of the Commonwealth, other than:
(i) the Legislative Assembly for the Australian Capital Territory; or
(ii) the Legislative Assembly for the Northern Territory; or
(iii) the Legislative Assembly of the Territory of Norfolk Island; or
(k) the High Court or any court created by the Parliament; or
(l) a tribunal established by a law of the Commonwealth; or
(m) any other person holding, or performing the duties of, an office established by a law of the Commonwealth.
(2) For the purposes of this Act, intelligence agency means:
(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service; or
(c) the Defence Imagery and Geospatial Organisation; or
(d) the Defence Intelligence Organisation; or
(e) the Defence Signals Directorate; or
(f) the Office of National Assessments.
(3) For the purposes of this Act, integrity agency means:
(a) the Ombudsman; or
(b) the Inspector‑General of Intelligence and Security; or
(c) the Integrity Commissioner holding office under the Law Enforcement Integrity Commissioner Act 2006; or
(d) the Auditor‑General; or
(e) the Australian Public Service Commissioner; or
(f) the Merit Protection Commissioner.
(4) For the purposes of this Act, investigative agency means an agency of the Commonwealth, a State or a Territory with the function of receiving, investigating or taking action in relation to information regarding disclosable conduct, and includes:
(a) an integrity agency; or
(b) in relation to a suspected offence under the Criminal Code or against the criminal law of the Commonwealth—the Australian Federal Police; or
(c) in relation to a suspected breach of the Corporations Act 2001—the Australian Securities and Investments Commission; or
(d) in relation to a suspected breach of the Competition and Consumer Act 2010—the Australian Competition and Consumer Commission.
11 Meaning of public official
For the purposes of this Act, a public official for an agency is:
(a) a person who is or has been:
(i) an employee, member, statutory officeholder, Director or head of the agency; or
(ii) a contractor, officer or employee of a contractor, volunteer or other individual exercising a power or performing a function of the agency; or
(iii) a contracted service provider, or officer or employee of a contracted service provider, for a Commonwealth contract; or
(b) a person who is or has been:
(i) a Senator; or
(ii) a member of the House of Representatives; or
(iii) a person employed under the Members of Parliament (Staff) Act 1984; or
(c) a person prescribed by regulation.
12 Meaning of disclosure officer
(1) For the purposes of this Act, a disclosure officer for a public interest disclosure is any of the following:
(a) for a disclosure that relates to any agency:
(i) the head of the agency; or
(ii) a person declared under subsection (2) for the agency; or
(iii) the Ombudsman; or
(iv) for a disclosure that relates to an intelligence agency—the Inspector‑General of Intelligence and Security.
(b) for a disclosure that relates to:
(i) a Senator—the President of the Senate;
(ii) a member of the House of Representatives—the Speaker of the House of Representatives;
(iii) a person employed under the Members of Parliament (Staff) Act 1984—the member or Senator concerned, or the Speaker or the President as the case may be.
(2) The head of an agency must declare at least 1 person to be a disclosure officer for public interest disclosures for the agency.
(3) The head of an agency must publish the declaration on the agency’s website and in the Gazette.
(4) A declaration made under subsection (2) is not a legislative instrument.
13 Meaning of relates to an entity
For the purposes of this Act, a public interest disclosure relates to an agency if it is about:
(a) the agency’s disclosable conduct; or
(b) the disclosable conduct of a public official for the agency; or
(c) the disclosable conduct of another person that affects the exercise of functions of:
(i) the agency; or
(ii) a public official for the agency.
14 Meaning of head of an agency
(1) For the purposes of this Act, the head of an agency is any of the following:
(a) for an agency that is an Agency within the meaning of the Public Service Act 1999—the Agency Head within the meaning of that Act;
(b) for the Defence Force—the Chief of the Defence Force;
(c) for the Australian Federal Police—the Commissioner of the Australian Federal Police;
(d) for a person who is an agency within the meaning of paragraph (m) of the definition of agency—that person;
(e) for any other agency—the person who has responsibility for managing the affairs of the agency.
(2) For the purposes of this Act, the head of an agency includes the delegate of the head of an agency.
15 Meaning of sensitive defence, intelligence or law enforcement information
For the purposes of this Act, sensitive defence, intelligence or law enforcement information is information:
(a) obtained by, under the control of, originating from within, or received from:
(i) the Defence Force; or
(ii) the Defence Department; or
(iii) the Australian Federal Police or another Commonwealth law enforcement agency; or
(iv) an intelligence agency; or
(v) the Inspector‑General of Intelligence and Security; or
(vi) the Ombudsman;
(b) which a public official, acting reasonably and with due diligence for a public official of the position and training of that public official, reasonably believes or should reasonably believe to be information which could, if disclosed to a particular person or any person:
(i) reveal a confidential source of advice, assessment or information for a lawful defence, intelligence or law enforcement activity or operation; or
(ii) reveal confidential information concerning technologies, methods, strategies, materials, assets or resources used, proposed to be used, or being developed for use for the purposes of a lawful defence, intelligence or law enforcement activity or operation; or
(iii) identify, or lead to the identification of, a person as being, or having been, a member of staff, officer, serviceperson, employee or agent of any of the agencies mentioned in paragraph (a), who was, is or may be engaged in a particular defence, intelligence or law enforcement activity or operation; or
(iv) reveal confidential operational details of a lawful defence, intelligence or law enforcement activity or operation; or
(v) reveal the contents of confidential intelligence advice, or an intelligence assessment, given or proposed to be given to a Minister or an agency as part of a lawful defence, intelligence or law enforcement activity or operation;
(c) where the disclosure of the information to that person, or any person, could:
(i) adversely affect a person’s safety (other than an enemy combatant); or
(ii) jeopardise the proper planning, execution, conduct or future conduct of a lawful defence, intelligence or law enforcement activity or operation, in such a way as may adversely affect a person’s safety, whether directly or indirectly, including the safety of the general public.
Part 3—Making a public interest disclosure
16 Who may make a public interest disclosure?
Any public official may make a public interest disclosure in accordance with this Act.
17 To whom may a public interest disclosure be made?
A public interest disclosure may be made to:
(a) a disclosure officer; or
(b) if the discloser is a public official for an agency:
(i) a public official of that agency who, directly or indirectly, supervises or manages the discloser; or
(ii) a public official of that agency, or of an agency to whom the disclosure relates, who has the function of receiving, investigating or taking action in relation to information of the kind being disclosed; or
(iii) a person engaged by that agency under a contract to provide services involving the receipt of public interest disclosures relating to that agency;
(iv) an integrity agency who has the function of receiving, investigating or taking action in relation to information of the kind being disclosed; or
(v) an investigative agency who has the function of receiving, investigating or taking action in relation to information of the kind being disclosed; or
(vi) for an agency that has a governing board—a member of the board; or
(vii) the Minister responsible for the agency.
18 How may a public interest disclosure be made?
(1) A public interest disclosure may be made:
(a) orally or in writing; and
(b) anonymously; and
(c) without the discloser asserting that the disclosure is made under this Act.
(2) If a public interest disclosure is made orally to a person mentioned in section 17, the person must make a written record of the disclosure.
19 Action upon receipt of a public interest disclosure
(1) If a person or agency mentioned in paragraph 17(b) receives a public interest disclosure, the person or agency must:
(a) as soon as possible, give a copy of the disclosure to a disclosure officer; and
(b) in deciding to which disclosure officer they will give a copy of the disclosure:
(i) have regard to the risk that detrimental action or victimisation may be taken against any person as a result of the disclosure; and
(ii) have regard to whether the disclosure contains sensitive defence, intelligence or law enforcement information; and
(ii) consult the discloser regarding the disclosure officer or officers to whom the disclosure is proposed to be given.
(2) After receiving a public interest disclosure, a disclosure officer must give a copy, or if the disclosure is made orally, a written record, of the disclosure to:
(a) the head of each agency to which the disclosure relates; and
(b) the Ombudsman; and
(c) for a disclosure that relates to an intelligence agency—the Inspector‑General of Intelligence and Security.
20 Limitations on obligations to inform agencies or others about public interest disclosures
(1) Notwithstanding section 19, no person is under an obligation to tell any other person about any information in relation to a public interest disclosure under this Act, if telling the person would be likely to:
(a) adversely affect a person’s safety; or
(b) adversely affect an investigation relating to the disclosure; or
(c) result in, or increase, a risk that detrimental action or victimisation may be taken against any person as a result of the disclosure;
unless the other person is:
(d) the Ombudsman; or
(e) the Inspector‑General of Intelligence and Security.
(2) If a person or agency mentioned in section 17 receives a public interest disclosure containing sensitive defence, intelligence or law enforcement information, they may only tell another person about that information if:
(a) they believe on reasonable grounds that:
(i) the other person is entitled by law, or by virtue of their position or function, to possess the information; and
(ii) telling the person would not jeopardise a lawful defence, intelligence or law enforcement activity or operation; or
(b) the other person is:
(i) the Ombudsman; or
(ii) the Inspector‑General of Intelligence and Security.
(3) If a public interest disclosure includes sensitive defence, intelligence or law enforcement information, nothing in this section affects any obligation or entitlement on a person or agency in relation to any part of the disclosure which does not contain that information, or from which that information could be removed.
(4) To avoid doubt, in this section, person includes a head of an agency, a disclosure officer, or a discloser.
Part 4—Investigations
22 Investigation of public interest disclosure
(1) If a disclosure officer receives a public interest disclosure, the head of the agency to which the disclosure relates must investigate the disclosure.
(2) However, if a public interest disclosure relates to the disclosable conduct of a head of an agency, the head of the agency must refer the disclosure for investigation by:
(a) the Ombudsman; or
(b) for a disclosure that relates to an intelligence agency—the Inspector‑General of Intelligence and Security; or
(c) another agency, including an integrity agency or investigative agency, whom the head of the agency reasonably believes, and the Ombudsman or Inspector‑General of Intelligence and Security agree, is appropriate to investigate the disclosure.
(3) If a public interest disclosure relates to their own disclosable conduct, the Ombudsman or the Inspector‑General of Intelligence and Security must refer the disclosure for investigation by another agency whom they reasonably believe is appropriate to investigate the disclosure.
(4) A head of an agency to whom a public interest disclosure has been referred under subsection (2) or (3) must investigate the disclosure.
23 Referral to another agency
(1) This section applies if:
(a) the head of the agency reasonably believes that a disclosure relating to the agency is more appropriately investigated by another agency that has a function or power to investigate; or
(b) the Ombudsman decides that a disclosure relating to a particular agency is more appropriately investigated by another agency that has a function or power to investigate; or
(c) for a disclosure that relates to an intelligence agency—the Inspector‑General of Intelligence and Security decides that the disclosure is more appropriately investigated by another agency that has a function or power to investigate.
(2) The head of the agency, Ombudsman or Inspector‑General of Intelligence and Security, as the case may be, may refer the disclosure to the head of the other agency.
(3) The head of the other agency must investigate the public interest disclosure.
24 Meaning of investigating entity
For the purposes of this Act, an investigating entity for a public interest disclosure means:
(a) the head of the agency to whom the disclosure relates; or
(b) if paragraph 22(2)(c) or subsection 22(3) applies—the head of the agency to whom a disclosure has been referred; or
(c) if section 23 (Referral to another agency) applies—the head of the agency to whom the disclosure is referred; or
(d) the Ombudsman; or
(e) the Inspector‑General of Intelligence and Security.
25 Referral of possible offences
If satisfied on reasonable grounds that the disclosable conduct the subject of the disclosure involves, or could involve, an offence against a law of the Commonwealth, the investigating entity for a public interest disclosure must refer the disclosure, or that part of the disclosure, to:
(a) the Australian Federal Police; or
(b) another investigative agency whom the investigating entity reasonably believes is appropriate to investigate the disclosure.
26 Conduct of investigations
(1) A public interest disclosure must be investigated pursuant to procedures under a law of the Commonwealth for the investigation of disclosable conduct of that kind.
(2) Without limiting subsection (1), procedures under a law of the Commonwealth for the investigation of disclosable conduct may include:
(a) procedures established under subsection 15(3) of the Public Service Act 1999 (relating to the investigation of alleged breaches of the Code of Conduct);
(b) procedures established under subsection 15(3) of the Parliamentary Service Act 1999 (relating to the investigation of alleged breaches of the Code of Conduct);
(c) procedures established under the Ombudsman Act 1976;
(d) procedures established under the Inspector‑General of Intelligence and Security Act 1986;
(e) procedures established under paragraph 35(2)(d) of this Act.
(3) Irrespective of under which procedures a public interest disclosure is investigated, an investigating entity must at all times have due regard to:
(a) the risk that detrimental action or victimisation may be taken against any person as a result of the disclosure; and
(b) procedural fairness.
27 Investigating entity may decide not to investigate etc.
An investigating entity may decide not to investigate a public interest disclosure, or may end the investigation of a disclosure, if:
(a) the discloser has withdrawn the public interest disclosure and the investigating entity is reasonably satisfied that there are no further matters in the disclosure that warrant investigation; or
(b) the discloser has not disclosed his or her name and contact details and the investigating entity is reasonably satisfied that this lack of information makes it impracticable for the disclosure to be investigated; or
(c) the following applies:
(i) the investigating entity asks the discloser for assistance to investigate the disclosure;
(ii) the discloser fails or is unable to give the assistance;
(iii) the investigating entity is reasonably satisfied that this lack of assistance makes it impracticable for the disclosure to be investigated; or
(d) the investigating entity is reasonably satisfied that the age of the disclosed information makes it impracticable for the disclosure to be investigated; or
(e) the investigating entity is reasonably satisfied that the substance of the disclosure has already been investigated under this Act or another law of the Commonwealth; or
(f) the investigating entity is reasonably satisfied that the disclosed information is wrong in a material way and investigation of the disclosure is not warranted; or
(g) there is a more appropriate way reasonably available to deal with the disclosable conduct in the disclosure.
Note 1: The investigating entity’s decision may be reviewed by the Ombudsman or IGIS under section 50.
Note 2: An investigating entity must tell a referring entity about its decision to not investigate a disclosure, or to end an investigation of the disclosure (see section 28).
28 Investigating entity must keep referring entity informed
(1) This section applies if a public interest disclosure is referred by a head of an agency (the referring entity) to the head of another entity under section 22 or 23.
(2) The investigating entity must tell the referring entity, as soon as possible, about:
(a) if the investigating entity decides not to investigate the disclosure, or to end the investigation of the disclosure:
(i) the decision; and
(ii) the ground mentioned in section 27 for the decision; and
(iii) the reasons for making the decision on that ground; or
(b) if the disclosure is investigated by the investigating entity—the progress and outcome of the investigation.
29 Discloser must be kept informed
(1) The investigating entity for a public interest disclosure must tell the discloser, as soon as possible, about:
(a) the referral of a disclosure to another agency; and
(b) a decision not to investigate a disclosure, or to end the investigation of the disclosure, including:
(i) the ground mentioned in section 27 for the decision; and
(ii) the reasons for making the decision on that ground; and
(c) if a disclosure is investigated:
(i) the likely duration of the investigation; and
(ii) the progress of the investigation at least once every 3 months; and
(iii) the outcome of the investigation; and
(iv) any action taken or proposed to be taken as a result of the disclosure.
(2) If an investigating entity has not provided the discloser with information in subsection (1), the head of the agency to whom the disclosure relates must provide that information.
(3) This section does not apply if:
(a) the public interest disclosure was made anonymously; or
(b) the discloser has asked in writing not to be kept informed about the public interest disclosure.
(4) A discloser need not be told about information in relation to a public interest disclosure if telling the discloser would be likely to:
(a) identify a person that has given information in relation to the disclosure; or
(b) allow the identity of the person to be worked out; or
(c) adversely affect a person’s safety; or
(d) adversely affect an investigation relating to the disclosure; or
(e) result in, or increase, a risk that detrimental action or victimisation may be taken against any person as a result of the disclosure.
30 Ombudsman and IGIS must be kept informed
(1) An investigating entity for a public interest disclosure must tell the Ombudsman, as soon as possible, about the following:
(a) the progress and outcome of an investigation of the disclosure;
(b) the referral of the public interest disclosure to the head of another agency or an investigative agency;
(c) a decision not to investigate the disclosure, or to end the investigation of the disclosure and:
(i) the ground mentioned in section 27 for the decision; and
(ii) the reasons for making the decision on that ground; and
(iii) if the ground mentioned in section 27 (g) was a reason for the decision—how the disclosure was otherwise dealt with and the result (if any) of dealing with the disclosure in that way;
(d) any action taken, or proposed to be taken, in relation to disclosable conduct the subject of the disclosure.
(2) Where a disclosure relates to an intelligence agency, an investigating entity for a public interest disclosure must tell the Inspector‑General of Intelligence and Security about the same matters contained in subsection (1).
Part 5—Public interest disclosure to third parties
31 When disclosure may be made to journalists etc.
(1) This Part applies if a public official has made a public interest disclosure to a person mentioned in section 17 and:
(a) the person has refused or failed to receive the disclosure; or
(b) an investigating entity has refused or failed to investigate the disclosure, other than in accordance with section 26; or
(c) the discloser has not been told within 3 months after the day the disclosure is made whether or not the disclosure will be investigated or dealt with; or
(d) the discloser has been told the disclosure will be investigated but has not been told about the progress of the investigation for a period of more than 3 months; or
(e) the disclosure has been investigated, and
(i) there is clear evidence that 1 or more instances of disclosable conduct mentioned in the disclosure has occurred, or was likely to have occurred; and
(ii) the discloser has been told by the investigating entity that no action will be taken in relation to the disclosable conduct.
(2) This Part also applies if a public official honestly believes on reasonable grounds that:
(a) the public official has information that tends to show disclosable conduct; and
(b) there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and
(c) it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.
32 Disclosure may be made to journalists etc.
(1) A public official to whom this Part applies may make a public interest disclosure to a person whom they reasonably believe can assist them to ensure that appropriate action is taken in relation to the disclosable conduct.
(2) To avoid doubt, a person to whom a public interest disclosure may be made under this section includes a journalist.
(3) In this section:
journalist means a person who is engaged and active in the publication of news and who may be given information by someone else in the expectation that the information may be published in a news medium.
news medium means a medium for the dissemination to the public, or a section of the public, of news and observations on news.
33 Limitations on disclosures to journalists etc.
(1) In making a disclosure under this Part, the discloser:
(a) must disclose sufficient information to show that the conduct is disclosable conduct, but not more than is reasonably necessary to show that the conduct is disclosable conduct; and
(b) if a public interest disclosure was made under section 17—may inform the person about the progress and outcome of any investigation.
(2) Before making a disclosure under this Part, the discloser must first:
(a) have regard to whether the information proposed to be disclosed includes sensitive defence, intelligence or law enforcement information; and
(b) if the proposed disclosure includes such information, satisfy themselves, on reasonable grounds, that the public interest in disclosure of the particular disclosable conduct outweighs the public interest in protection of the particular sensitive defence, intelligence or law enforcement information.
(3) Notwithstanding subsection 32(1), a public interest disclosure may not be made under this Part to a foreign public official.
Part 6—Obligations of agencies
34 Key responsibilities
The head of an agency must:
(a) ensure that employees and contractors for the agency are aware of how they may make public interest disclosures, including the identity of disclosure officers; and
(b) provide protection from detrimental action or victimisation, or the threat of detrimental action or victimisation, for any public official for the agency who makes a public interest disclosure; or for any public official whose disclosure they are investigating; and
(c) investigate, or cause to be investigated, all instances of disclosable conduct raised by a public interest disclosure; and
(d) where it is shown that disclosable conduct has occurred, is likely to have occurred or is likely to occur, take action necessary and reasonable to:
(i) prevent the disclosable conduct continuing or occurring in the future; and
(ii) if the investigation of the public interest disclosure has been completed—discipline any person responsible for the disclosable conduct; and
(iii) if any loss or damage has been caused by disclosable conduct—remediate the loss or damage; and
(iv) if a discloser has suffered detrimental action or victimisation because of the public interest disclosure—take such action as is necessary and reasonable to remedy the detrimental action or victimisation; and
(e) prepare, publish and implement procedures relating to the agency’s obligations under this Act.
35 Public interest disclosure procedures
(1) An agency’s procedures relating to the agency’s obligations under this Act must be consistent with standards prepared by the Ombudsman under section 54 of this Act.
(2) Without limiting subsection (1), a public sector entity’s procedures must include the following:
(a) encouragement and advice for public officials and contractors for the agency to disclose any matter they consider to be wrongdoing;
(b) advice for managers, public officials and contractors regarding the means by which wrongdoing can be disclosed;
(c) guidance to managers and public officials regarding the processes to be followed for the management and resolution of different types of suspected wrongdoing, including public interest disclosures, other complaints, other grievances, and other alleged breaches of a code of conduct;
(d) procedures for the proper investigation of public interest disclosures;
(e) clear obligations on the agency and its public officials to take action to protect disclosers;
(f) risk management steps for assessing and minimising:
(i) detrimental action or victimisation against people because of public interest disclosures; and
(ii) detriment to people against whom allegations of disclosable conduct are made in a disclosure;
(g) guidelines for maintaining confidentiality, wherever possible, in respect of the identity of disclosers and of people against whom allegations of disclosable conduct are made in a disclosure;
(h) procedures for the investigation or referral of information regarding detrimental action or victimisation, if it occurs;
(i) procedures for assessing and remedying detrimental action or victimisation, if it occurs;
(j) procedures for monitoring the welfare of public officials who have made public interest disclosures, after the conclusion of any investigation and associated action, to ensure that:
(i) detrimental action or victimisation has not occurred or continued to occur; or
(ii) remedial action is taken, if detrimental action or victimisation has occurred.
(3) The head of an agency may publish the agency’s public interest disclosure procedures as part of, or in conjunction with, procedures under any other law of the Commonwealth relating to the integrity, accountability and proper management of the agency.
(4) The head of an agency must provide the agency’s public interest disclosure procedures, and any amendment of the procedures, to:
(a) the Ombudsman; and
(b) if the agency is an intelligence agency—the Inspector‑General of Intelligence and Security.
(5) The head of an agency must comply with any recommendation or direction to amend the agency’s public interest disclosure procedures, given by:
(a) the Ombudsman; or
(b) if the agency is an intelligence agency—the Inspector‑General of Intelligence and Security.
36 Confidentiality guidelines
(1) Once a public interest disclosure has been made, a public official, including:
(a) a discloser; or
(b) a disclosure officer; or
(c) a person who receives a disclosure under section 17; or
(d) an investigating entity; or
(e) the head of an agency;
must observe appropriate confidentiality regarding the making, referral or investigation of the public interest disclosure.
(2) In this section, appropriate confidentiality includes confidentiality with respect to:
(a) the identity of a discloser; and
(b) the identity of people against whom allegations of disclosable conduct are made; and
(c) the fact that any disclosure has been made or is being investigated;
unless excused by any of the circumstances mentioned in subsections 58(3) or (4), including as a result of a public interest disclosure made under Part 5 of this Act.
(3) Nothing in this section prevents a public official from making a public interest disclosure under this Act, or a person from receiving a protection under Part 7 of this Act.
37 Notification and reporting
(1) At least once annually, the head of an agency must provide the Ombudsman, and the head of an intelligence agency must also provide the Inspector‑General of Intelligence and Security, with a summary of:
(a) the number of public interest disclosures received by the agency over the report period; and
(b) the results of investigations conducted as a result of the disclosures and the action, if any, taken as a result of each investigation; and
(c) such other matters as are stipulated in a standard published by the Ombudsman under paragraph 54(1)(b).
(2) The head of an agency must, in an annual report for a financial year, include details of the following for the year:
(a) the total number of public interest disclosures made to the agency;
(b) the total number of investigations carried out by the agency;
(c) the total number of investigations completed;
(d) the average time taken for completed investigations;
(e) anything else prescribed by regulation.
(3) However, the annual report under subsection (2) must not include protected information.
Part 7—Legal protections for disclosers
38 Immunity from liability
If a person makes a public interest disclosure:
(a) the making of the public interest disclosure is not:
(i) a breach of confidence; or
(ii) a breach of professional etiquette or ethics; or
(iii) a breach of a rule of professional conduct; or
(iv) if the disclosure is made in relation to a Member of the House of Representatives or a Senator—a contempt of the Parliament; and
(b) the discloser is not subject to any civil, criminal or administrative liability (including disciplinary action or dismissal) for making the disclosure; and
(c) no contractual or other remedy or right may be enforced, or exercised, against the discloser on the basis of the disclosure (including an action to terminate a contract on the basis that the disclosure constitutes a breach of the contract); and
(d) no sanction may be imposed upon the discloser as a result of the disclosure.
39 Protection from defamation action
Without limiting section 20, in a proceeding for defamation, a discloser has a defence of absolute privilege for publishing the information disclosed.
40 What is detrimental action?
For the purposes of this Act, action is detrimental action if:
(a) it causes detriment to any person, including:
(i) any detriment suffered as a result of a failure to fulfil an obligation under this Act, or under the public interest disclosure procedures of an agency; or
(ii) treating, or proposing to treat, a person unfavourably in relation to the person’s reputation, career, profession, employment or trade; or
(iii) dismissing a person from a position of employment; or
(iv) harassing or intimidating a person; or
(v) causing harm or injury to a person; or
(vi) damaging a person’s property; and
(b) a reason or ground of any significance for the action was the fact that a public official has made, is suspected to have made, or may make a public interest disclosure.
41 Detrimental action is adverse action in the course of employment
Where undertaken in the course of a person’s employment, detrimental action under this Act is adverse action for the purposes of subsection 340(1) and section 342 of the Fair Work Act 2009.
Note 1: This section and the meaning of workplace law in section 12 of the Fair Work Act 2009 mean that the making of a public interest disclosure is a process under a workplace law, giving rise to workplace rights under paragraph 341(1)(b) of the Fair Work Act 2009.
Note 2: A person who suffers detrimental action in the course of employment may therefore seek remedies for that action under Part 3‑1 (General protections), Part 4‑1 (Civil remedies) or paragraph 772(1)(e) of the Fair Work Act 2009.
Note 3: Where detrimental action is dismissal of a person from a position of employment, section 387A and subsection 392(7) of the Fair Work Act 2009 also mean that the person will be taken as having been unfairly dismissed for the purposes of, and may seek any remedy under, Part 3‑2 (Unfair dismissal) of the Fair Work Act 2009.
42 Injunction to prevent detrimental action etc.
(1) Without limiting any remedy available under this or any other Act, the Federal Court or the Federal Magistrates Court may, on application:
(a) if satisfied that a person has taken detrimental action—order the person who took detrimental action to remedy the action; or
(b) if satisfied that a person is taking, or is likely to take, detrimental action—grant an injunction to prevent detrimental action being taken.
(2) The Federal Court or the Federal Magistrates Court may, on application, grant an interim injunction restraining a person from taking detrimental action before deciding an application for an injunction under this section.
(3) In making any order under this section, the Federal Court or the Federal Magistrates Court may make any orders that it thinks fit against any other person who aided, abetted, conspired or was otherwise knowingly concerned or involved in the detrimental action.
(4) An application under this section may be made by:
(a) the Ombudsman; or
(b) an investigating entity that is dealing with the disclosure; or
(c) the discloser; or
(d) a person against whom detrimental action has been or is likely to be taken.
43 Reinstatement
Without limiting any remedy available under this or any other Act, if the Federal Court or the Federal Magistrates Court is satisfied that:
(a) the discloser is or was employed in a particular position with another person (the employer); and
(b) the employer terminates, or purports to terminate, the discloser’s employment as a result of the disclosure;
the Court may, on application, order that the discloser be reinstated in that position or in a position with comparable duties and remuneration.
44 Damages for detrimental action
(1) Without limiting any remedy available under this or any other Act, a person who takes detrimental action against someone else is liable in damages to anyone who suffers detriment as a result.
(2) Detrimental action is a tort and compensation for loss or damage from the action, including future loss or damage, may be recovered in a proceeding in the Federal Court or Federal Magistrates Court.
(3) Any remedy that may be given by the Court for a tort, including exemplary damages, may be given in a proceeding under this section.
(4) An applicant for damages in proceedings (including an appeal) under this section may only be ordered by the Court to pay costs incurred by another party to the proceedings, if:
(a) the Court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or
(b) the Court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur the costs.
(5) The right of a person to bring a proceeding for damages under this section does not affect any other right or remedy available to the person, but a person is not entitled to make an application for:
(a) a remedy under the Fair Work Act 2009 in relation to particular detrimental action, if an application has been made for damages under this section in relation to the same action; or
(b) damages under this section for particular detrimental action, if a remedy has been sought under the Fair Work Act 2009 in relation to the same action;
unless the prior application has been discontinued or has failed for want of jurisdiction.
45 Vicarious liability
(1) If any of an agency’s employees takes detrimental action in the course of employment, both the agency and the employee, as the case may be, are jointly and severally liable for the action, and a proceeding under this Part may be taken against either or both.
(2) It is a defence to a proceeding against an agency under this Part if the agency proves, on the balance of probabilities, that the agency took every reasonable step to minimise the risk of, or prevent the employee from taking, the detrimental action.
46 Offence—victimisation
(1) A person commits an offence if the person (the offender) victimises any person because of a public interest disclosure.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) For the purposes of this Act, an offender victimises a person because of a public interest disclosure if the offender intentionally takes, or threatens to take, detrimental action against that person because:
(a) a person has made, or may make, a public interest disclosure; or
(b) the offender believes or suspects that a person has made, or may make, a public interest disclosure.
(3) In determining whether an offender has victimised a person because of a public interest disclosure, it is sufficient if a reason for the action mentioned in subsection (2) is a contributing reason.
(4) In a prosecution for an offence against subsection (1), it is not necessary to prove that any person did make, or may have been likely to make, a public interest disclosure.
(5) Proceedings may be brought under this or any other Act for civil remedies or damages in relation to detrimental action, irrespective of whether an offence of victimisation has occurred or a prosecution for an offence of victimisation has been brought, or could be brought, under this section.
47 Liability for own conduct
(1) A person’s liability for the person’s own conduct is not affected by the person’s disclosure of that conduct under this Act.
(2) In this section, liability includes:
(a) civil or criminal liability or any liability arising from an administrative action (including disciplinary action or dismissal); and
(b) liability for an offence of knowingly providing false or misleading information under section 137.1 or 137.2 of the Criminal Code.
48 Loss of protection
(1) A person who makes a public interest disclosure forfeits the protections under this Act in relation to the disclosure if a court is satisfied that:
(a) the discloser has given information to a person investigating the disclosure that is false or misleading; or
(b) the disclosure is vexatious; or
(c) the discloser has failed to comply in a substantial way with an obligation under this Act.
(2) However, a court may make an order that subsection (1) does not apply if the court considers that the discloser’s conduct mentioned in paragraph (1)(a):
(a) has not materially prejudiced the investigation of the public interest disclosure; and
(b) is of a minor nature.
Part 8—Oversight of public interest disclosures
49 Functions of Ombudsman and IGIS
(1) The Ombudsman has the following functions:
(a) to give advice and assistance to agencies, public officials and the general public about public interest disclosures;
(b) to monitor the management of public interest disclosures by agencies;
(c) to review the way in which agencies investigate and deal with public interest disclosures generally, or particular public interest disclosures;
(d) to ensure just outcomes for public officials who make public interest disclosures, including by preventing and remedying the effect of detrimental action or victimisation against people because of disclosures;
(e) to undertake, or coordinate the undertaking of, education and training programs about public interest disclosures;
(f) to report publicly and to agencies on the implementation of the Act, including procedures, arrangements and outcomes in respect of the management of public interest disclosures.
(2) The Inspector‑General of Intelligence and Security has the same functions as mentioned in subsection (1), for disclosures relating to intelligence agencies.
(3) The Ombudsman and the Inspector‑General of Intelligence and Security may enter into shared arrangements or mutual assistance in relation to the performance of functions conferred on either of them by this Act.
50 Ombudsman and IGIS may review decisions
(1) The Ombudsman may, at any time, review:
(a) a decision by a head of an agency to refer, or not to refer, a public interest disclosure for investigation by another agency;
(b) a decision by an investigating entity to refuse to investigate a public interest disclosure, or to end the investigation of the disclosure;
(c) a decision relating to the conduct or quality of an investigation into a public interest disclosure, including the adequacy of information given to a discloser or an agency;
(d) a decision to assess or manage the risks of detrimental action or victimisation in a particular way;
(e) an action taken, or proposed to be taken, by an agency in relation to disclosable conduct the subject of a public interest disclosure; and
(f) an action taken, or proposed to be taken, by an agency in relation to detrimental action or victimisation as a result of a public interest disclosure.
(2) The Ombudsman may ask anyone to give the Ombudsman information, including protected information, relevant to the investigation of the disclosure.
(3) An agency or public official must comply with a request made to the agency or official.
(4) After reviewing a decision, the Ombudsman may:
(a) amend the decision; or
(b) set aside the decision and substitute a new decision; or
(c) take no action.
(5) After reviewing an action, or proposed action, the Ombudsman may recommend to an agency or public official that it take, or not take, particular action in relation to the disclosable conduct.
(6) The management of a public interest disclosure is a matter of administration for the purposes of the Ombudsman Act 1976, and the Ombudsman may exercise any power under that Act for the purposes of reviewing a decision, reviewing an investigation, making a recommendation, or making a report in relation to the management of a public interest disclosure.
(7) Nothing in this Act is intended to limit the Ombudsman’s powers under the Ombudsman Act 1976.
(8) The Inspector‑General of Intelligence and Security has the same functions as mentioned in this section, and may exercise any powers under the Inspector‑General of Intelligence and Security Act 1986, in relation to disclosures relating to intelligence agencies.
51 Ombudsman and IGIS may conduct investigations
(1) The Ombudsman may, at any time:
(a) commence his or her own investigation of a public interest disclosure, or of any aspect of the management of a public interest disclosure, including the assessment and management of risks of detrimental action or reprisal; or
(b) provide direction to an agency or an investigating entity regarding the investigation of a public interest disclosure, including the assessment and management of risks of detrimental action or reprisal.
(2) A person may complain to the Ombudsman about an action taken by an agency or public official in exercising a function under this Act.
(3) Without limiting subsection (2), a complaint may be about:
(a) the adequacy of an agency’s public interest disclosure procedures; or
(b) whether an agency or public official has followed the agency’s public interest disclosure procedures.
(4) The Inspector‑General of Intelligence and Security has the same powers as mentioned in subsections (1), (2) and (3), for disclosures relating to intelligence agencies.
52 Report by Ombudsman or IGIS
(1) The Ombudsman or Inspector‑General of Intelligence and Security, as the case may be, may make a report about:
(a) an agency’s public interest disclosure procedures; or
(b) how a public interest disclosure is dealt with by an agency or a public official.
(2) However, the Ombudsman or Inspector‑General of Intelligence and Security:
(a) may only include in a report information that may be adverse to, or critical of, a person or agency if the Ombudsman or Inspector‑General of Intelligence and Security has given the person or agency an opportunity to be heard; and
(b) must not include in a report information that is:
(i) likely to adversely affect a person’s safety; or
(ii) likely to adversely affect an investigation relating to the disclosure; or
(iii) sensitive defence, intelligence or law enforcement information.
(3) Subsection (2) (a) applies whether or not the adverse or critical material is:
(a) express or implicit; or
(b) by way of opinion or otherwise.
(4) The Ombudsman or Inspector‑General of Intelligence and Security, as the case may be, must provide a copy of the report to:
(a) the head of any agencies to whom the report relates; and
(a) the Minister or Ministers responsible for the agency or agencies.
(5) Where the Ombudsman or Inspector‑General of Intelligence and Security considers it to be in the public interest to do so, the Ombudsman or Inspector‑General of Intelligence and Security, as the case may be, may publish the report or such other information regarding a disclosure as is prudent to be published.
53 Ombudsman or IGIS must tell discloser about decisions
(1) If the Ombudsman or Inspector‑General of Intelligence and Security makes a decision or recommendation under subsection 50(4) or (5), or makes a report under this Part, the Ombudsman or Inspector‑General of Intelligence and Security, as the case may be, must:
(a) tell the discloser:
(i) the decision or recommendation; and
(ii) the reasons for the decision or recommendation; and
(b) provide the discloser with the report, as the case may be.
(2) This section does not apply if:
(a) the public interest disclosure was made anonymously; or
(b) the discloser has asked in writing not to be kept informed about the public interest disclosure.
(3) A discloser need not be told about information in relation to a public interest disclosure if telling the discloser would be likely to:
(a) identify a person that has given information in relation to the disclosure; or
(b) allow the identity of the person to be worked out; or
(c) adversely affect a person’s safety; or
(d) adversely affect an investigation relating to the disclosure; or
(e) result in, or increase, a risk that detrimental action or victimisation may be taken against any person as a result of the disclosure.
54 Ombudsman’s standards
(1) The Ombudsman must publish standards about:
(a) the way in which agencies and public officials deal with public interest disclosures; and
(b) the content and timing of information which agencies and public officials must provide to the Ombudsman, Inspector‑General of Intelligence and Security, or any other integrity agencies in respect of the management of public interest disclosures; and
(c) the contents of the internal public interest disclosure procedures required under section 35 to be prepared and published by an agency.
(2) The Ombudsman’s standards under paragraph 1(c) must provide guidance to agencies consistent with subsections 35(2) and (3).
(3) Before publishing a standard under subsection (1), the Ombudsman must consult:
(a) the Inspector‑General of Intelligence and Security; and
(b) each integrity agency.
(4) A standard published under subsection (1) is a legislative instrument.
55 Annual report
(1) The Ombudsman must, in an annual report for a financial year, include an annual report on the operations of this Act during that financial year.
(2) The annual report must include, for the year:
(a) the total number of public interest disclosures made;
(b) the total number of investigations carried out;
(c) the total number of investigations completed;
(d) the average time taken for completed investigations;
(e) anything else prescribed by regulation.
(3) However, the annual report must not include protected information.
(4) The head of an agency, including the Inspector‑General of Intelligence and Security, must give the Ombudsman such information as the Ombudsman reasonably requires to assist in the preparation of a report under subsection (1).
Part 9—Miscellaneous
56 Protection of witnesses etc.
(1) A person who, when requested to do so:
(a) gives information; or
(b) produces a document; or
(c) answers a question; or
(d) otherwise provides assistance;
to an investigating entity, disclosure officer, or other official exercising a function under this Act, is not civilly or criminally liable for giving the information, producing the document, answering the question or providing the assistance.
(2) A person commits an offence if the person victimises, harasses, intimidates or causes detriment to another person because the other person has provided, or might provide, assistance of the kind mentioned in subsection (1).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
57 Protection of officials from liability
(1) An official is not civilly liable for anything done or omitted to be done honestly and without recklessness:
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise of a function under this Act.
(2) Any civil liability that would, apart from subsection (1), attach to an official attaches instead to the Commonwealth.
(3) In this section:
official means:
(a) the Ombudsman; or
(b) the Inspector‑General of Intelligence and Security; or
(c) a disclosure officer; or
(d) an investigating entity; or
(e) a person authorised under this Act to do or not to do a thing.
(4) Subsection (1) does not affect any rights to seek a review by a court or tribunal, including any rights conferred by the Administrative Decisions (Judicial Review) Act 1977, in relation to:
(a) a decision; or
(b) conduct engaged in for the purpose of making a decision; or
(c) a failure to make a decision.
58 Offences—use or divulge protected information
(1) A person to whom this section applies commits an offence if:
(a) the person uses information; and
(b) the information is protected information about someone else; and
(c) the person knows, or is reckless about whether, the information is protected information about someone else.
Penalty: 50 penalty units, imprisonment for 6 months or both.
(2) A person to whom this section applies commits an offence if:
(a) the person does something that divulges information; and
(b) the information is protected information about someone else; and
(c) the person knows, or is reckless about whether:
(i) the information is protected information about someone else; and
(ii) doing the thing would result in the information being divulged to someone else.
Penalty: 50 penalty units, imprisonment for 6 months or both.
(3) Subsections (1) and (2) do not apply if the information is used or divulged:
(a) under this Act or another law of the Commonwealth; or
(b) in relation to the exercise of a function, by a person to whom this section applies, under this Act or another law of the Commonwealth; or
(c) in a court proceeding.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
(4) Subsections (1) and (2) do not apply to the using or divulging of protected information about a person:
(a) with the person’s consent; or
(b) if the information has previously been lawfully published, including as a result of a public interest disclosure made under Part 5 of this Act.
Note: The defendant bears an evidential burden in relation to the matter mentioned in subsection (4): see subsection 13.3(3) of the Criminal Code.
(5) A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for the purposes of this Act or another law in force in the Commonwealth.
(6) In this section:
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
divulge includes:
(a) communicate; or
(b) publish.
person to whom this section applies means:
(a) a person who is or has been:
(i) the Ombudsman; or
(ii) the Inspector‑General of Intelligence and Security; or
(iii) a disclosure officer; or
(iv) an investigating entity; or
(b) anyone else who has exercised a function under this Act.
produce includes allow access to.
protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise of a function under this Act by the person or someone else; and includes information that would identify, or tend to identify, a discloser.
use, in relation to information, includes make a record of the information.
59 Concurrent operation of State and Territory laws
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
60 Legal professional privilege
This Act does not affect the law relating to legal professional privilege.
61 Parliamentary privilege
(1) This Act does not affect the powers, privileges and immunities of:
(a) the Senate; and
(b) the House of Representatives; and
(c) the members of each House of the Parliament; and
(d) the committees of each House of the Parliament;
under section 49 of the Constitution.
(2) This Act does not affect the powers, privileges and immunities conferred by, or arising under, the Parliamentary Privileges Act 1987.
62 Regulations
The Governor‑General may make regulations 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.