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Public Interest Disclosure Act 2013

Authoritative Version
  • - C2013A00133
  • In force - Superseded Version
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Act No. 133 of 2013 as made
An Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes
Administered by: Prime Minister and Cabinet
Originating Bill: Public Interest Disclosure Bill 2013
Registered 16 Jul 2013
Date of Assent 15 Jul 2013
Table of contents.

 

 

 

 

 

 

Public Interest Disclosure Act 2013

 

No. 133, 2013

 

 

 

 

 

An Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes

  

  

  


Contents

Part 1—Introduction                                                                                                            2

Division 1—Preliminary matters                                                                            2

1............ Short title............................................................................................. 2

2............ Commencement................................................................................... 2

3............ Crown to be bound............................................................................. 3

4............ Extension to external Territories.......................................................... 3

5............ Extension to things outside Australia.................................................. 3

Division 2—Objects                                                                                                       4

6............ Objects................................................................................................ 4

Division 3—Overview                                                                                                  5

7............ Overview............................................................................................ 5

Division 4—Definitions                                                                                                6

8............ Definitions.......................................................................................... 6

Part 2—Protection of disclosers                                                                                  12

Division 1—Protections                                                                                             12

9............ Simplified outline.............................................................................. 12

Subdivision A—Immunity from liability                                                           12

10.......... Protection of disclosers..................................................................... 12

11.......... Liability for false or misleading statements etc. unaffected................ 13

11A....... Designated publication restrictions.................................................... 13

12.......... Discloser’s liability for own conduct not affected............................. 13

Subdivision B—Protection from reprisals                                                        14

13.......... What constitutes taking a reprisal...................................................... 14

14.......... Compensation................................................................................... 14

15.......... Injunctions, apologies and other orders............................................. 15

16.......... Reinstatement.................................................................................... 16

17.......... Multiple orders.................................................................................. 16

18.......... Costs only if proceedings instituted vexatiously etc.......................... 17

19.......... Offences............................................................................................ 17

19A....... Interaction between civil remedies and offences................................ 18

Subdivision C—Protecting the identity of disclosers                                      18

20.......... Use or disclosure of identifying information..................................... 18

21.......... Identifying information not to be disclosed etc. to courts or tribunals 19

Subdivision D—Interaction with the Fair Work Act 2009                             20

22.......... Interaction with protections under Part 3‑1 of the Fair Work Act 2009 20

22A....... Interaction with remedies under the Fair Work Act 2009.................. 20

Subdivision E—Miscellaneous                                                                              21

23.......... Claims for protection......................................................................... 21

24.......... Protections have effect despite other Commonwealth laws............... 22

Division 2—Public interest disclosures                                                              23

25.......... Simplified outline.............................................................................. 23

Subdivision A—Public interest disclosures                                                        23

26.......... Meaning of public interest disclosure............................................... 23

27.......... Associated allegations....................................................................... 28

28.......... How a public interest disclosure may be made.................................. 28

Subdivision B—Disclosable conduct                                                                   28

29.......... Meaning of disclosable conduct........................................................ 28

30.......... Officers or employees of a contracted service provider..................... 30

31.......... Disagreements with government policies etc..................................... 31

32.......... Conduct connected with courts or Commonwealth tribunals............ 32

33.......... Conduct connected with intelligence agencies................................... 33

Subdivision C—Internal disclosures: authorised internal recipients          33

34.......... Meaning of authorised internal recipient.......................................... 33

35.......... When conduct relates to an agency.................................................... 35

36.......... Meaning of authorised officer........................................................... 35

Subdivision D—Intelligence information                                                          36

41.......... Meaning of intelligence information................................................. 36

Part 3—Investigations                                                                                                       38

Division 1—Allocating the handling of disclosures                                     38

42.......... Simplified outline.............................................................................. 38

43.......... Authorised officer to allocate the handling of the disclosure............. 38

44.......... Giving notice of the allocation decision............................................. 39

45.......... Subsequent allocations...................................................................... 40

Division 2—The obligation to investigate disclosures                               42

46.......... Simplified outline.............................................................................. 42

47.......... Principal officer must investigate disclosures.................................... 42

48.......... Discretion not to investigate.............................................................. 43

49.......... Investigative agency using separate investigative powers................. 44

50.......... Notification to discloser.................................................................... 45

50A....... Notification to Ombudsman or IGIS of decision not to investigate... 46

51.......... Report of investigation...................................................................... 46

52.......... Time limit for investigations under this Division.............................. 47

53.......... Conduct of investigations under this Division.................................. 48

54.......... Adoption of findings of another investigation................................... 49

Division 3—Miscellaneous                                                                                       51

56.......... Disclosure to a member of an Australian police force....................... 51

57.......... Protection of witnesses etc................................................................ 51

Part 4—Administrative matters                                                                                  53

Division 1—Additional obligations and functions                                        53

58.......... Simplified outline.............................................................................. 53

59.......... Additional obligations of principal officers....................................... 53

60.......... Additional obligations of authorised officers.................................... 54

60A....... Additional obligations of supervisors............................................... 54

61.......... Additional obligations of public officials.......................................... 55

62.......... Additional functions of the Ombudsman.......................................... 55

63.......... Additional functions of the IGIS....................................................... 56

Division 2—Treatment of information                                                              57

64.......... Simplified outline.............................................................................. 57

65.......... Secrecy—general.............................................................................. 57

66.......... Source agencies for intelligence information..................................... 58

67.......... Secrecy—legal practitioners.............................................................. 59

Division 3—Officials and agencies                                                                      60

68.......... Simplified outline.............................................................................. 60

Subdivision A—Public officials                                                                            60

69.......... Public officials.................................................................................. 60

70.......... Individuals taken to be public officials.............................................. 64

Subdivision B—Agencies and prescribed authorities                                     65

71.......... Meaning of agency............................................................................ 65

72.......... Meaning of prescribed authority...................................................... 65

Subdivision C—Principal officers                                                                       67

73.......... Meaning of principal officer............................................................. 67

Part 5—Miscellaneous                                                                                                       69

74.......... Ombudsman may determine standards.............................................. 69

75.......... Restriction on the application of secrecy provisions.......................... 69

76.......... Annual report.................................................................................... 70

77.......... Delegations....................................................................................... 71

78.......... Liability for acts and omissions......................................................... 72

79.......... Concurrent operation of State and Territory laws.............................. 73

80.......... Law relating to legal professional privilege not affected.................... 73

82.......... Other investigative powers etc. not affected...................................... 73

82A....... Review of operation of Act............................................................... 73

83.......... The PID rules.................................................................................... 74

 


 

 

Public Interest Disclosure Act 2013

No. 133, 2013

 

 

 

An Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes

[Assented to 15 July 2013]

 

The Parliament of Australia enacts:

Part 1Introduction

Division 1Preliminary matters

1  Short title

                         This Act may be cited as the Public Interest Disclosure Act 2013.

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.

15 July 2013

2.  Sections 3 to 83

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.

15 January 2014

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  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.

4  Extension to external Territories

                         This Act extends to every external Territory.

5  Extension to things outside Australia

                         This Act extends to acts, omissions, matters and things outside Australia.

Division 2Objects

6  Objects

                         The objects of this Act are:

                     (a)  to promote the integrity and accountability of the Commonwealth public sector; and

                            (b)  to encourage and facilitate the making of public interest disclosures by public officials; and

                     (c)  to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

                     (d)  to ensure that disclosures by public officials are properly investigated and dealt with.

Division 3Overview

7  Overview

             (1)  This Act:

                     (a)  provides a means for protecting public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed; and

                     (b)  provides for the investigation of matters that are disclosed.

Protection of disclosers

             (2)  Part 2 provides the following for public interest disclosures:

                     (a)  immunity from liability;

                     (b)  offences and civil remedies for reprisals taken against disclosers;

                     (c)  offences for disclosure of the identity of disclosers.

Division 2 of Part 2 sets out 4 kinds of public interest disclosures.

Investigations

             (3)  Part 3 provides for:

                     (a)  allocation of the handling of disclosures to appropriate agencies; and

                     (b)  investigation of disclosures by the principal officers of the allocated agencies (but investigative agencies may instead use their separate investigative powers).

Administrative matters

             (4)  Part 4 provides for:

                     (a)  additional obligations and functions supporting the operation of this Act; and

                     (b)  offences protecting information obtained through processes connected with this Act; and

                     (c)  definitions of key concepts relating to officials and agencies.

Division 4Definitions

8  Definitions

                   In this Act:

agency has the meaning given by section 71.

Australia, when used in a geographical sense, includes the external Territories.

Australian legal practitioner has the same meaning as in the Evidence Act 1995.

Australian police force means the Australian Federal Police or the police force of a State or Territory.

authorised internal recipient has the meaning given by section 34.

authorised officer has the meaning given by section 36.

belongs: section 69 sets out when a public official belongs to an agency.

Cabinet information means:

                     (a)  information contained in a document that is an exempt document under section 34 of the Freedom of Information Act 1982; or

                     (b)  information the disclosure of which would involve the disclosure of any deliberation, or decision, of the Cabinet or a committee of the Cabinet.

chief executive officer has the meaning given by subsection 73(2).

Commonwealth company has the same meaning as in the Commonwealth Authorities and Companies Act 1997.

Commonwealth contract has the meaning given by subsection 30(3).

Commonwealth tribunal means:

                     (a)  a body established as a tribunal by or under a law of the Commonwealth; or

                     (b)  a statutory officeholder prescribed by the PID rules for the purposes of this paragraph.

completed, in relation to an investigation under Part 3, has the meaning given by subsection 52(2).

contracted service provider has the meaning given by subsection 30(2).

Defence Department means the Department administered by the Minister administering Part III of the Defence Act 1903, and includes:

                     (a)  the Defence Force; and

                     (b)  the Australian Army Cadets; and

                     (c)  the Australian Navy Cadets; and

                     (d)  the Australian Air Force Cadets.

Department means:

                     (a)  a Department of State (including the Defence Department), excluding any part that is itself an Executive Agency or Statutory Agency; or

                     (b)  a Department of the Parliament that is established under the Parliamentary Service Act 1999.

designated publication restriction means any of the following:

                     (a)  section 121 of the Family Law Act 1975;

                     (b)  section 91X of the Migration Act 1958;

                     (c)  section 110X of the Child Support (Registration and Collection) Act 1988;

                     (d)  a non‑publication order (within the meaning of Part XAA of the Judiciary Act 1903) of any court;

                     (e)  a suppression order (within the meaning of Part XAA of the Judiciary Act 1903) of any court;

                      (f)  an order under section 31 or 38L of the National Security Information (Criminal and Civil Proceedings) Act 2004;

                     (g)  an order under section 28 of the Witness Protection Act 1994;

                     (h)  an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975;

                      (i)  a direction under section 35AA of the Administrative Appeals Tribunal Act 1975;

                      (j)  a direction under subsection 25A(9) of the Australian Crime Commission Act 2002;

                     (k)  section 29B of the Australian Crime Commission Act 2002;

                      (l)  a direction under section 90 of the Law Enforcement Integrity Commissioner Act 2006;

                    (m)  section 92 of the Law Enforcement Integrity Commissioner Act 2006.

detriment includes the meaning given by subsection 13(2).

disclosable conduct has the meaning given by Subdivision B of Division 2 of Part 2.

disclose includes re‑disclose.

disclosure investigation means:

                     (a)  an investigation under Part 3; or

                     (b)  an investigation, in relation to a disclosure that is allocated under Division 1 of Part 3, by an investigative agency under a separate investigative power.

engage in conduct means:

                            (a)   do an act; or

                            (b)   omit to do an act.

Executive Agency has the same meaning as in the Public Service Act 1999.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

foreign country includes:

                     (a)  a colony or overseas territory; and

                     (b)  a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory; and

                     (c)  a territory outside Australia that is to some extent self‑governing, but that is not recognised as an independent sovereign state by Australia.

foreign government means the government of a foreign country.

foreign public official has the same meaning as in Division 70 of the Criminal Code.

identifying information has the meaning given by paragraph 20(1)(b).

IGIS means the Inspector‑General of Intelligence and Security.

information, in relation to a disclosure, includes an allegation made in conjunction with another disclosure of information.

intelligence agency means:

                     (a)  the Australian Secret Intelligence Service; or

                     (b)  the Australian Security Intelligence Organisation; 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.

intelligence information has the meaning given by section 41.

internal disclosure means a public interest disclosure that:

                     (a)  is covered by item 1 of the table in subsection 26(1); or

                     (b)  is an allegation made in conjunction with such a disclosure.

international organisation means an organisation:

                     (a)  of which Australia and one or more foreign countries are members; or

                     (b)  that is constituted by a person or persons representing Australia and a person or persons representing one or more foreign countries.

investigate, in relation to a disclosure, has the meaning given by subsections 47(2) to (4).

investigative agency means:

                     (a)  the Ombudsman; or

                     (b)  the IGIS; or

                     (c)  an agency that is prescribed by the PID rules to be an investigative agency for the purposes of this Act.

judicial officer has the meaning given by subsection 32(2).

legal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995 or under a corresponding law of a State or Territory.

member of the staff of the chief executive officer of a court or Commonwealth tribunal has the meaning given by subsection 32(3).

official of a registered industrial organisation means a person who holds an office (within the meaning of the Fair Work Act 2009) in an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009.

Ombudsman means the Commonwealth Ombudsman.

PID rules (short for Public Interest Disclosure Rules) means the rules made by the Minister under section 83.

position, in relation to a public official, includes office or situation.

prescribed authority has the meaning given by section 72.

principal officer, in relation to an agency, has the meaning given by section 73.

public interest disclosure has the meaning given by Subdivision A of Division 2 of Part 2.

public official has the meaning given by Subdivision A of Division 3 of Part 4.

recipient, in relation to a disclosure of information, means the person to whom the information is disclosed.

relates: section 35 sets out when conduct relates to an agency.

Royal Commission has the meaning given by the Royal Commissions Act 1902.

sensitive law enforcement information has the meaning given by subsection 41(2).

separate investigative power has the meaning given by subsection 49(2).

Statutory Agency has the same meaning as in the Public Service Act 1999.

statutory officeholder has the meaning given by subsection 69(2).

supervisor, in relation to a person who makes a disclosure, is a public official who supervises or manages the person making the disclosure.

suspected disclosable conduct has the meaning given by subparagraph 43(3)(a)(i).

takes a reprisal has the meaning given by section 13.

Part 2Protection of disclosers

Division 1Protections

9  Simplified outline

                         The following is a simplified outline of this Division:

An individual is not subject to any civil, criminal or administrative liability for making a public interest disclosure.

It is an offence to take a reprisal, or to threaten to take a reprisal, against a person because of a public interest disclosure (including a proposed or a suspected public interest disclosure).

The Federal Court or Federal Circuit Court may make orders for civil remedies (including compensation, injunctions and reinstatement of employment) if a reprisal is taken against a person because of a public interest disclosure (including a proposed or a suspected public interest disclosure).

It is an offence to disclose the identity of an individual who makes a public interest disclosure.

Note 1:       Division 2 sets out the kinds of public interest disclosures.

Note 2:       The principal officer of an agency has a duty to protect a public official who belongs to the agency from detriment that relates to a public interest disclosure made by the public official (see section 59).

Subdivision AImmunity from liability

10  Protection of disclosers

             (1)  If an individual makes a public interest disclosure:

                     (a)  the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the public interest disclosure.

             (2)  Without limiting subsection (1):

                     (a)  the individual has absolute privilege in proceedings for defamation in respect of the public interest disclosure; and

                     (b)  a contract to which the individual is a party must not be terminated on the basis that the public interest disclosure constitutes a breach of the contract.

11  Liability for false or misleading statements etc. unaffected

             (1)  Section 10 does not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a statement that is false or misleading.

             (2)  Without limiting subsection (1) of this section, section 10 does not apply to liability for an offence against section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code.

11A  Designated publication restrictions

                   Section 10 does not apply to civil, criminal or administrative liability (including disciplinary action) for making a disclosure that contravenes a designated publication restriction if the person making the disclosure:

                     (a)  knows that the disclosure contravenes the designated publication restriction; and

                     (b)  does not have a reasonable excuse for that contravention.

12  Discloser’s liability for own conduct not affected

                   To avoid doubt, whether the individual’s disclosure of his or her own conduct is a public interest disclosure does not affect his or her liability for the conduct.

Subdivision BProtection from reprisals

13  What constitutes taking a reprisal

             (1)  A person (the first person) takes a reprisal against another person (the second person) if:

                            (a)   the first person causes (by act or omission) any detriment to the second person; and

                            (b)   when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure; and

                     (c)  that belief or suspicion is the reason, or part of the reason, for the act or omission.

             (2)  Detriment includes any disadvantage, including (without limitation) any of the following:

                     (a)  dismissal of an employee;

                     (b)  injury of an employee in his or her employment;

                     (c)  alteration of an employee’s position to his or her detriment;

                     (d)  discrimination between an employee and other employees of the same employer.

             (3)  Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.

14  Compensation

             (1)  If the Federal Court or Federal Circuit Court is satisfied, on the application of a person (the applicant), that another person (the respondent) took or threatened to take, or is taking or threatening to take, a reprisal against the applicant, the Court may:

                     (a)  in any case—make an order requiring the respondent to compensate the applicant for loss, damage or injury as a result of the reprisal or threat; or

                     (b)  if the Court is satisfied that the respondent took or threatened to take, or is taking or threatening to take, the reprisal in connection with the respondent’s position as an employee:

                              (i)  make an order requiring the respondent to compensate the applicant for a part of loss, damage or injury as a result of the reprisal or threat, and make another order requiring the respondent’s employer to compensate the applicant for a part of loss, damage or injury as a result of the reprisal or threat; or

                             (ii)  make an order requiring the respondent and the respondent’s employer jointly to compensate the applicant for loss, damage or injury as a result of the reprisal or threat; or

                            (iii)  make an order requiring the respondent’s employer to compensate the applicant for loss, damage or injury as a result of the reprisal or threat.

             (2)  The Federal Court or Federal Circuit Court must not make an order under paragraph (1)(b) if the respondent’s employer establishes that it took reasonable precautions, and exercised due diligence, to avoid the reprisal or threat.

             (3)  If the Federal Court or Federal Circuit Court makes an order under subparagraph (1)(b)(ii), the respondent and the respondent’s employer are jointly and severally liable to pay the compensation concerned.

15  Injunctions, apologies and other orders

             (1)  If the Federal Court or Federal Circuit Court is satisfied, on the application of a person (the applicant), that another person (the respondent) took or threatened to take, or is taking or threatening to take, a reprisal against the applicant, the Court may make any or all of the following orders:

                     (a)  an order granting an injunction, on such terms as the Court thinks appropriate:

                                       (i)   restraining the respondent from taking, or threatening to take, the reprisal; or

                                      (ii)   if the reprisal or threat involves refusing or failing to do something—requiring the respondent to do that thing;

                     (b)  an order requiring the respondent to apologise to the applicant for taking, or threatening to take, the reprisal;

                     (c)  any other order the Court thinks appropriate.

             (2)  If the Federal Court or Federal Circuit Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who has:

                     (a)  aided, abetted, counselled or procured the conduct against the applicant; or

                     (b)  induced the conduct against the applicant, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the conduct against the applicant; or

                     (d)  conspired with others to effect the conduct against the applicant.

16  Reinstatement

                   If the Federal Court or Federal Circuit Court is satisfied, on the application of a person (the applicant), that:

                     (a)  another person (the respondent) has taken, or is taking, a reprisal against the applicant; and

                     (b)  the applicant is or was employed in a particular position with the respondent; and

                     (c)  the reprisal wholly or partly consists, or consisted, of the respondent terminating, or purporting to terminate, the applicant’s employment;

the Court may order that the applicant be reinstated in that position or a position at a comparable level.

17  Multiple orders

                   The Federal Court or Federal Circuit Court may make orders under sections 14, 15 and 16 in respect of the same conduct.

18  Costs only if proceedings instituted vexatiously etc.

             (1)  In proceedings (including an appeal) in a court in relation to a matter arising under section 14, 15 or 16, the applicant for an order under that section must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (2).

             (2)  The applicant may be ordered to pay the costs only 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.

19  Offences

Taking a reprisal

                 (1)   A person commits an offence if the person takes a reprisal against another person.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the other person made, may have made or intended to make a public interest disclosure.

Threatening to take a reprisal

                 (3)   A person (the first person) commits an offence if:

                            (a)   the first person makes a threat to another person (the second person) to take a reprisal against the second person or a third person; and

                            (b)   the first person:

                                       (i)   intends the second person to fear that the threat will be carried out; or

                                      (ii)   is reckless as to the second person fearing that the threat will be carried out.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

                 (4)   For the purposes of subsection (3), the threat may be:

                            (a)   express or implied; or

                            (b)   conditional or unconditional.

                 (5)   In a prosecution for an offence under subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

19A  Interaction between civil remedies and offences

                   To avoid doubt, a person may bring proceedings under section 14, 15 or 16 in relation to the taking of a reprisal, or the threat to take a reprisal, even if a prosecution for an offence against section 19 in relation to the reprisal or threat has not been brought, or cannot be brought.

Subdivision CProtecting the identity of disclosers

20  Use or disclosure of identifying information

Disclosure of identifying information

             (1)  A person (the first person) commits an offence if:

                     (a)  another person (the second person) has made a public interest disclosure; and

                     (b)  the first person discloses information (identifying information) that:

                              (i)  was obtained by any person in that person’s capacity as a public official; and

                             (ii)  is likely to enable the identification of the second person as a person who has made a public interest disclosure; and

                            (c)   the disclosure is to a person other than the second person.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

Use of identifying information

             (2)  A person (the first person) commits an offence if the person uses identifying information.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

Exceptions

             (3)  Subsections (1) and (2) do not apply if one or more of the following applies:

                     (a)  the disclosure or use of the identifying information is for the purposes of this Act;

                     (b)  the disclosure or use of the identifying information is in connection with the performance of a function conferred on the Ombudsman by section 5A of the Ombudsman Act 1976;

                     (c)  the disclosure or use of the identifying information is in connection with the performance of a function conferred on the IGIS by section 8A of the Inspector‑General of Intelligence and Security Act 1986;

                     (d)  the disclosure or use of the identifying information is for the purposes of:

                              (i)  a law of the Commonwealth; or

                             (ii)  a prescribed law of a State or a Territory;

                     (e)  the person who is the second person in relation to the identifying information has consented to the disclosure or use of the identifying information;

                      (f)  the identifying information has previously been lawfully published.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

21  Identifying information not to be disclosed etc. to courts or tribunals

                   A person who is, or has been, a public official is not to be required:

                            (a)   to disclose to a court or tribunal identifying information that the person has obtained; or

                            (b)   to produce to a court or tribunal a document containing identifying information that the person has obtained;

except where it is necessary to do so for the purposes of giving effect to this Act.

Subdivision DInteraction with the Fair Work Act 2009

22  Interaction with protections under Part 3‑1 of the Fair Work Act 2009

                   Without limiting the operation of the Fair Work Act 2009, Part 3‑1 of that Act applies in relation to the making of a public interest disclosure by a public official who is an employee (within the meaning of that Part) as if, for the purposes of that Act:

                     (a)  this Act were a workplace law; and

                     (b)  making that disclosure were a process or proceeding under a workplace law.

22A  Interaction with remedies under the Fair Work Act 2009

             (1)  A person is not entitled to make an application to the Federal Court or Federal Circuit Court for an order under section 14, 15 or 16 of this Act in relation to particular conduct if another application has been made:

                     (a)  under section 539 of the Fair Work Act 2009 in relation to a contravention of section 340 or 772 of that Act constituted by the same conduct; or

                     (b)  under section 394 of the Fair Work Act 2009 in relation to the same conduct.

             (2)  A person is not entitled to apply under:

                     (a)  section 539 of the Fair Work Act 2009 for an order in relation to a contravention of section 340 or 772 of that Act constituted by particular conduct; or

                     (b)  section 394 of the Fair Work Act 2009 for an order in relation to particular conduct;

if another application has been made for an order under section 14, 15 or 16 of this Act in relation to the same conduct.

             (3)  This section does not apply if the other application mentioned in subsection (1) or (2) has been discontinued or has failed for want of jurisdiction.

Subdivision EMiscellaneous

23  Claims for protection

             (1)  If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 10, the individual is not subject to any civil, criminal or administrative liability for making a particular public interest disclosure:

                     (a)  the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

                     (b)  if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and

                     (c)  the court must deal with the claim in separate proceedings; and

                     (d)  the court must adjourn the primary proceedings until the claim has been dealt with; and

                     (e)  none of the following:

                              (i)  any admission made by the individual in the separate proceedings;

                             (ii)  any information given by the individual in the separate proceedings;

                            (iii)  any other evidence adduced by the individual in the separate proceedings;

                            is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and

                      (f)  if the individual or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

             (2)  To avoid doubt, a right under section 126H of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

24  Protections have effect despite other Commonwealth laws

                   Section 10, 14, 15 or 16 has effect despite any other provision of a law of the Commonwealth, unless:

                     (a)  the provision is enacted after the commencement of this section; and

                     (b)  the provision is expressed to have effect despite this Part or that section.

Division 2Public interest disclosures

25  Simplified outline

                         The following is a simplified outline of this Division:

The protections in Division 1 apply to public interest disclosures.

Broadly speaking, a public interest disclosure is a disclosure of information, by a public official, that is:

•      a disclosure within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (referred to as “disclosable conduct”); or

•      a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or

•      a disclosure to anybody if there is substantial and imminent danger to health or safety; or

•      a disclosure to an Australian legal practitioner for purposes connected with the above matters.

However, there are limitations to take into account the need to protect intelligence information.

Note 1:       Disclosable conduct, authorised internal recipient and intelligence information are defined in Subdivisions B, C and D.

Note 2:       Public official is defined in Subdivision A of Division 3 of Part 4.

Subdivision APublic interest disclosures

26  Meaning of public interest disclosure

             (1)  A disclosure of information is a public interest disclosure if:

                     (a)  the disclosure is made by a person (the discloser) who is, or has been, a public official; and

                     (b)  the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and

                     (c)  all the further requirements set out in column 3 of that item are met:

 

Public interest disclosures

Item

Column 1

Type of disclosure

Column 2

Recipient

Column 3

Further requirements

1

Internal disclosure

An authorised internal recipient, or a supervisor of the discloser

The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.

2

External disclosure

Any person other than a foreign public official

(a) The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.

(b) On a previous occasion, the discloser made an internal disclosure of information that consisted of, or included, the information now disclosed.

(c) Any of the following apply:

(i) a disclosure investigation relating to the internal disclosure was conducted under Part 3, and the discloser believes on reasonable grounds that the investigation was inadequate;

(ii) a disclosure investigation relating to the internal disclosure was conducted (whether or not under Part 3), and the discloser believes on reasonable grounds that the response to the investigation was inadequate;

(iii) this Act requires an investigation relating to the internal disclosure to be conducted under Part 3, and that investigation has not been completed within the time limit under section 52.

(e) The disclosure is not, on balance, contrary to the public interest.

(f) No more information is publicly disclosed than is reasonably necessary to identify one or more instances of disclosable conduct.

(h) The information does not consist of, or include, intelligence information.

(i) None of the conduct with which the disclosure is concerned relates to an intelligence agency.

3

Emergency disclosure

Any person other than a foreign public official

(a) The discloser believes on reasonable grounds that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the environment.

(b) The extent of the information disclosed is no greater than is necessary to alert the recipient to the substantial and imminent danger.

(c) If the discloser has not previously made an internal disclosure of the same information, there are exceptional circumstances justifying the discloser’s failure to make such an internal disclosure.

(d) If the discloser has previously made an internal disclosure of the same information, there are exceptional circumstances justifying this disclosure being made before a disclosure investigation of the internal disclosure is completed.

(f) The information does not consist of, or include, intelligence information.

4

Legal practitioner disclosure

An Australian legal practitioner

(a) The disclosure is made for the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made, or proposing to make, a public interest disclosure.

(b) If the discloser knew, or ought reasonably to have known, that any of the information has a national security or other protective security classification, the recipient holds the appropriate level of security clearance.

(c) The information does not consist of, or include, intelligence information.

 

             (2)  However, a disclosure made before the commencement of this section is not a public interest disclosure.

          (2A)  A response to a disclosure investigation is taken, for the purposes of item 2 of the table in subsection (1), not to be inadequate to the extent that the response involves action that has been, is being, or is to be taken by:

                     (a)  a Minister; or

                     (b)  the Speaker of the House of Representatives; or

                     (c)  the President of the Senate.

                 (3)   In determining, for the purposes of item 2 of the table in subsection (1), whether a disclosure is not, on balance, contrary to the public interest, regard must be had to the following:

                    (aa)  whether the disclosure would promote the integrity and accountability of the Commonwealth public sector;

                   (ab)  the extent to which the disclosure would expose a failure to address serious wrongdoing in the Commonwealth public sector;

                    (ac)  the extent to which it would assist in protecting the discloser from adverse consequences relating to the disclosure if the disclosure were a public interest disclosure;

                   (ad)  the principle that disclosures by public officials should be properly investigated and dealt with;

                    (ae)  the nature and seriousness of the disclosable conduct;

                             (a)   any risk that the disclosure could cause damage to any of the following:

                                       (i)   the security of the Commonwealth;

                                      (ii)   the defence of the Commonwealth;

                                     (iii)   the international relations of the Commonwealth;

                                     (iv)   the relations between the Commonwealth and a State;

                                      (v)   the relations between the Commonwealth and the Australian Capital Territory;

                                     (vi)   the relations between the Commonwealth and the Northern Territory;

                                   (vii)   the relations between the Commonwealth and Norfolk Island;

                             (b)   if any of the information disclosed in the disclosure is Cabinet information—the principle that Cabinet information should remain confidential unless it is already lawfully publicly available;

                             (c)   if any of the information disclosed in the disclosure was communicated in confidence by or on behalf of:

                                       (i)   a foreign government; or

                                      (ii)   an authority of a foreign government; or

                                     (iii)   an international organisation;

                                     the principle that such information should remain confidential unless that government, authority or organisation, as the case may be, consents to the disclosure of the information;

                     (d)  any risk that the disclosure could prejudice the proper administration of justice;

                     (e)  the principle that legal professional privilege should be maintained;

                              (f)   any other relevant matters.

27  Associated allegations

                   An allegation is a public interest disclosure if:

                     (a)  it is made by a person who makes a disclosure of information that is a public interest disclosure under section 26; and

                     (b)  it is made to the recipient of that disclosure in conjunction with that disclosure; and

                     (c)  it is an allegation to the effect that the information disclosed concerns one or more instances of disclosable conduct.

28  How a public interest disclosure may be made

             (1)  A public interest disclosure may be made orally or in writing.

             (2)  A public interest disclosure may be made anonymously.

             (3)  A public interest disclosure may be made without the discloser asserting that the disclosure is made for the purposes of this Act.

Subdivision BDisclosable conduct

29  Meaning of disclosable conduct

             (1)  Disclosable conduct is conduct of a kind mentioned in the following table that is conduct:

                     (a)  engaged in by an agency; or

                     (b)  engaged in by a public official, in connection with his or her position as a public official; or

                     (c)  engaged in by a contracted service provider for a Commonwealth contract, in connection with entering into, or giving effect to, that contract:

 

Disclosable conduct

Item

Kinds of disclosable conduct

1

Conduct that contravenes a law of the Commonwealth, a State or a Territory.

2

Conduct, in a foreign country, that contravenes a law that:

(a) is in force in the foreign country; and

(b) is applicable to the agency, public official or contracted service provider; and

(c) corresponds to a law in force in the Australian Capital Territory.

3

Conduct that:

(a) perverts, or is engaged in for the purpose of perverting, or attempting to pervert, the course of justice; or

(b) involves, or is engaged in for the purpose of, corruption of any other kind.

4

Conduct that constitutes maladministration, including conduct that:

(a) is based, in whole or in part, on improper motives; or

(b) is unreasonable, unjust or oppressive; or

(c) is negligent.

5

Conduct that is an abuse of public trust.

6

Conduct that is:

(a) fabrication, falsification, plagiarism, or deception, in relation to:

(i) proposing scientific research; or

(ii) carrying out scientific research; or

(iii) reporting the results of scientific research; or

(b) misconduct relating to scientific analysis, scientific evaluation or the giving of scientific advice.

7

Conduct that results in the wastage of:

(a) public money (within the meaning of the Financial Management and Accountability Act 1997); or

(b) public property (within the meaning of that Act); or

(c) money of a prescribed authority; or

(d) property of a prescribed authority.

8

Conduct that:

(a) unreasonably results in a danger to the health or safety of one or more persons; or

(b) unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons.

9

Conduct that:

(a) results in a danger to the environment; or

(b) results in, or increases, a risk of danger to the environment.

10

Conduct of a kind prescribed by the PID rules.

             (2)  Without limiting subsection (1), the following are also disclosable conduct:

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

                     (b)  conduct engaged in by a public official that could, if proved, give reasonable grounds for disciplinary action against the public official.

             (3)  For the purposes of this section, it is immaterial:

                     (a)  whether conduct occurred before or after the commencement of this section; or

                     (b)  if an agency has engaged in conduct—whether the agency has ceased to exist after the conduct occurred; or

                     (c)  if a public official has engaged in conduct—whether the public official has ceased to be a public official after the conduct occurred; or

                     (d)  if a contracted service provider has engaged in conduct—whether the contracted service provider has ceased to be a contracted service provider after the conduct occurred.

30  Officers or employees of a contracted service provider

             (1)  For the purposes of this Act, if an individual is a public official because the individual:

                     (a)  is an officer or employee of a contracted service provider for a Commonwealth contract; and

                     (b)  provides services for the purposes (whether direct or indirect) of the Commonwealth contract;

the individual does not engage in conduct in connection with his or her position as such a public official unless the conduct is in connection with entering into, or giving effect to, the contract.

             (2)  A contracted service provider for a Commonwealth contract is:

                     (a)  a person who:

                              (i)  is a party to the Commonwealth contract; and

                             (ii)  is responsible for the provision of goods or services under the Commonwealth contract; or

                     (b)  a person who:

                              (i)  is a party to a contract (the subcontract) with a person who is a contracted service provider for the Commonwealth contract under paragraph (a) (or under a previous application of this paragraph); or

                             (ii)  who is responsible under the subcontract for the provision of goods or services for the purposes (whether direct or indirect) of the Commonwealth contract.

             (3)  A Commonwealth contract is a contract:

                     (a)  to which the Commonwealth or a prescribed authority is a party; and

                     (b)  under which goods or services are to be, or were to be, provided:

                              (i)  to the Commonwealth or a prescribed authority; or

                             (ii)  for or on behalf of the Commonwealth or a prescribed authority, and in connection with the performance of its functions or the exercise of its powers.

31  Disagreements with government policies etc.

                   To avoid doubt, conduct is not disclosable conduct if it relates only to:

                     (a)  a policy or proposed policy of the Commonwealth Government; or

                     (b)  action that has been, is being, or is proposed to be, taken by:

                              (i)  a Minister; or

                             (ii)  the Speaker of the House of Representatives; or

                            (iii)  the President of the Senate; or

                     (c)  amounts, purposes or priorities of expenditure or proposed expenditure relating to such a policy or proposed policy, or such action or proposed action;

with which a person disagrees.

32  Conduct connected with courts or Commonwealth tribunals

             (1)  Despite section 29, conduct is not disclosable conduct if it is:

                     (a)  conduct of a judicial officer; or

                     (b)  conduct of:

                              (i)  the chief executive officer of a court; or

                             (ii)  a member of the staff of the chief executive officer of a court;

                            when exercising a power of the court, performing a function of a judicial nature or exercising a power of a judicial nature; or

                     (c)  conduct of:

                              (i)  a member of a Commonwealth tribunal; or

                             (ii)  the chief executive officer of a Commonwealth tribunal; or

                            (iii)  a member of the staff of the chief executive officer of a Commonwealth tribunal;

                            when exercising a power of the Commonwealth tribunal; or

                     (d)  any other conduct of, or relating to, a court or Commonwealth tribunal, unless the conduct:

                              (i)  is of an administrative nature; and

                             (ii)  does not relate to the management or hearing of matters before the court or tribunal.

             (2)  Judicial officer means:

                     (a)  a Justice of the High Court; or

                            (b)   a Judge or Justice of a court created by the Parliament; or

                     (c)  a Judge, Justice or Magistrate of a court of a State or Territory.

             (3)  Member of the staff of the chief executive officer of a court or Commonwealth tribunal means:

                     (a)  an officer of the court or Commonwealth tribunal (other than the chief executive officer); or

                     (b)  a member of the staff of the registry or registries of the court or Commonwealth tribunal; or

                     (c)  an officer or employee of an agency whose services are made available to the court or Commonwealth tribunal; or

                     (d)  a person prescribed by the PID rules to be a member of the staff of the court or Commonwealth tribunal for the purposes of this Act.

Note:          For declaration by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (4)  For the purposes of subsection (3):

                     (a)  a judicial officer of a court is not taken to be an officer of the court; and

                     (b)  a member of a Commonwealth tribunal is not taken to be an officer of the tribunal; and

                     (c)  if a statutory officeholder is a Commonwealth tribunal—the statutory officeholder is not taken to be an officer of the tribunal.

33  Conduct connected with intelligence agencies

                   Despite section 29, conduct is not disclosable conduct if it is:

                     (a)  conduct that an intelligence agency engages in in the proper performance of its functions or the proper exercise of its powers; or

                     (b)  conduct that a public official who belongs to an intelligence agency engages in for the purposes of the proper performance of its functions or the proper exercise of its powers.

Subdivision CInternal disclosures: authorised internal recipients

34  Meaning of authorised internal recipient

                   The following table sets out who is an authorised internal recipient of a disclosure of information that the discloser believes on reasonable grounds may concern one or more instances of disclosable conduct:

 

Authorised internal recipients

Item

Column 1

If the conduct with which the disclosure is concerned relates to:

Column 2

An authorised officer of any of the following agencies is an authorised internal recipient of the disclosure:

1

an agency (other than an intelligence agency, the Ombudsman or the IGIS)

(a) in any case—that agency;

(b) the agency to which the discloser belongs, or last belonged;

(c) if the discloser believes on reasonable grounds that it would be appropriate for the disclosure to be investigated by the Ombudsman—the Ombudsman;

(d) if an investigative agency (other than the Ombudsman or the IGIS) has the power to investigate the disclosure otherwise than under this Act—the investigative agency.

2

an intelligence agency

(a) in any case—the intelligence agency;

(b) if the discloser believes on reasonable grounds that it would be appropriate for the disclosure to be investigated by the IGIS—the IGIS;

(c) if none of the information is intelligence information, and an investigative agency (other than the Ombudsman or the IGIS) has the power to investigate the disclosure otherwise than under this Act—the investigative agency.

3

the Ombudsman

the Ombudsman.

4

the IGIS

the IGIS.

Note 1:       For authorised officer, see section 36.

Note 2:       A discloser may also disclose information to his or her supervisor (who is then obliged under section 60A to give the information to an authorised officer).

35  When conduct relates to an agency

             (1)  Conduct relates to an agency if the agency, or a public official belonging to the agency at the time of the conduct, engages in the conduct.

             (2)  Despite subsection (1), if:

                     (a)  an agency (the subsidiary agency) is established by or under a law of the Commonwealth for the purpose of assisting, or performing functions connected with, another agency (the parent agency); and

                     (b)  the subsidiary agency is an unincorporated body that is a board, council, committee, sub‑committee or other body;

conduct that would, apart from this subsection, relate to the subsidiary agency is instead taken, for the purposes of this Act, to relate to the parent agency.

             (3)  Despite subsections (1) and (2), if an agency ceases to exist, conduct that occurred before the cessation and that would, apart from this subsection, relate to the agency is instead taken, for the purposes of this Act, to relate to another agency if:

                     (a)  the other agency acquired all of the functions of the agency that ceased to exist; or

                     (b)  the other agency acquired some of those functions, and the conduct most closely relates to the functions the other agency acquired; or

                     (c)  the PID rules prescribe that, for the purposes of this Act, the other agency replaces the agency that ceased to exist.

It is immaterial whether the cessation occurred before or after the commencement of this section.

36  Meaning of authorised officer

                         An authorised officer, of an agency, is:

                            (a)   the principal officer of the agency; or

                            (b)   a public official who:

                                       (i)   belongs to the agency; and

                                      (ii)   is appointed, in writing, by the principal officer of the agency as an authorised officer for the purposes of this Act.

Subdivision DIntelligence information

41  Meaning of intelligence information

             (1)  Each of the following is intelligence information:

                            (a)   information that has originated with, or has been received from, an intelligence agency;

                            (b)   information that is about, or that might reveal:

                                       (i)   a source of information referred to in paragraph (a); or

                                      (ii)   the technologies or methods used, proposed to be used, or being developed for use, by an intelligence agency to collect, analyse, secure or otherwise deal with, information referred to in paragraph (a); or

                                     (iii)   operations that have been, are being, or are proposed to be, undertaken by an intelligence agency;

                            (c)   information:

                                       (i)   that has been received by a public official from an authority of a foreign government, being an authority that has functions similar to the functions of an intelligence agency; and

                                      (ii)   that is about, or that might reveal, a matter communicated by that authority in confidence;

                            (d)   information that has originated with, or has been received from, the Defence Department and that is about, or that might reveal:

                                       (i)   the collection, reporting, or analysis of operational intelligence; or

                                      (ii)   a program under which a foreign government provides restricted access to technology;

                            (e)   information that includes a summary of, or an extract from, information referred to in paragraph (a), (b), (c) or (d);

                             (f)   information:

                                       (i)   that identifies a person as being, or having been, an agent or member of the staff (however described) of the Australian Secret Intelligence Service or the Australian Security Intelligence Organisation (other than a person referred to in subsection (3)); or

                                      (ii)   from which the identity of a person who is, or has been, such an agent or member of staff (however described) could reasonably be inferred; or

                            (iii)  that could reasonably lead to the identity of such an agent or member of staff (however described) being established;

                     (g)  sensitive law enforcement information.

             (2)  Sensitive law enforcement information means information the disclosure of which is reasonably likely to prejudice Australia’s law enforcement interests, including Australia’s interests in the following:

                     (a)  avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence, security intelligence or the integrity of law enforcement agencies;

                     (b)  protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence, security intelligence or intelligence relating to the integrity of law enforcement agencies;

                     (c)  the protection and safety of:

                              (i)  informants or witnesses, or persons associated with informants or witnesses; or

                             (ii)  persons involved in the protection and safety of informants or witnesses;

                     (d)  ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.

             (3)  Paragraph (1)(f) does not apply to:

                     (a)  the Director‑General of ASIS, or a person who has been determined by the Director‑General of ASIS under this paragraph; or

                     (b)  the Director‑General of Security, or a person who has been determined by the Director‑General of Security under this paragraph.

Part 3Investigations

Division 1Allocating the handling of disclosures

42  Simplified outline

                         The following is a simplified outline of this Division:

If a disclosure is made to an authorised officer of an agency (either directly by the discloser or through a supervisor of the discloser), he or she allocates the handling of the disclosure to one or more agencies.

Note 1:       In order for a disclosure to be an internal disclosure (one of the types of public interest disclosure), the disclosure must be made to an authorised officer or a supervisor.

Note 2:       The way a disclosure is allocated (or a refusal to allocate a disclosure) may be the subject of a complaint to the Ombudsman under the Ombudsman Act 1976, or (in the case of an intelligence agency) to the IGIS under the Inspector‑General of Intelligence and Security Act 1986.

43  Authorised officer to allocate the handling of the disclosure

             (1)  If a person (the discloser) discloses information:

                     (a)  to an authorised officer of an agency (the recipient agency); or

                     (b)  to a supervisor of the discloser who then gives the information to the authorised officer;

the authorised officer must allocate the handling of the disclosure to one or more agencies (which may be or include the recipient agency).

Note 1:       For the assistance that authorised officers must give to disclosers, see section 60.

Note 2:       For the obligation of supervisors to give information to authorised officers, see section 60A.

             (2)  However, subsection (1) does not apply if the authorised officer is satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure.

Note:          The requirements for an internal disclosure are set out in item 1 of the table in subsection 26(1).

             (3)  In deciding the allocation, the authorised officer must have regard to:

                     (a)  the principle that an agency should not handle the disclosure unless any of the following apply:

                              (i)  in any case—some or all of the disclosable conduct with which the information may be concerned (suspected disclosable conduct) relates to the agency;

                             (ii)  if the agency is the Ombudsman—some or all of the suspected disclosable conduct relates to an agency other than an intelligence agency or the IGIS;

                            (iii)  if the agency is the IGIS—some or all of the suspected disclosable conduct relates to an intelligence agency;

                            (iv)  if the agency is an investigative agency (other than the Ombudsman or the IGIS)—the investigative agency has power to investigate the disclosure otherwise than under this Act; and

                     (b)  such other matters (if any) as the authorised officer considers relevant.

             (4)  For the purposes of deciding the allocation, the authorised officer may obtain information from such persons, and make such inquiries, as the authorised officer thinks fit.

             (5)  The authorised officer must use his or her best endeavours to decide the allocation within 14 days after the disclosure is made to the authorised officer.

             (6)  The authorised officer must not allocate the disclosure to an agency (other than the recipient agency) unless an authorised officer of that agency has consented to the allocation.

44  Giving notice of the allocation decision

             (1)  The authorised officer must inform the principal officer of each agency to which the handling of the disclosure is allocated of:

                     (a)  the allocation to the agency; and

                     (b)  the information that was disclosed; and

                     (c)  the suspected disclosable conduct (if any); and

                     (d)  if the discloser’s name and contact details are known to the authorised officer, and the discloser consents to the principal officer being informed—the discloser’s name and contact details.

          (1A)  The authorised officer must also inform:

                     (a)  if the disclosure is allocated to an agency that is not the Ombudsman, the IGIS or an intelligence agency—the Ombudsman; or

                     (b)  if the disclosure is allocated to an intelligence agency—the IGIS;

of the matters of which the principal officer of the agency must be informed under subsection (1).

             (2)  The authorised officer must inform the discloser of the allocation.

                 (3)   If, because of subsection 43(2), the authorised officer does not allocate the disclosure, the authorised officer must inform the discloser of:

                     (a)  the reasons why the disclosure has not been allocated to an agency; and

                     (b)  any other courses of action that might be available to the discloser under other laws of the Commonwealth.

             (4)  Subsection (2) or (3) does not apply if contacting the discloser is not reasonably practicable.

45  Subsequent allocations

             (1)  The authorised officer may, after making a decision under section 43 or this section (the original decision) allocating the handling of the disclosure to one or more agencies, decide to allocate the handling of the disclosure to one or more other agencies.

             (2)  Subsections 43(3) to (6) and section 44 apply in relation to a decision under this section in the same way that they apply in relation to the original decision.

Division 2The obligation to investigate disclosures

46  Simplified outline

                         The following is a simplified outline of this Division:

The principal officer of the allocated agency must investigate the disclosure, and prepare a report, within a set time and in accordance with the requirements of this Division.

The principal officer may decide not to investigate in particular circumstances in which an investigation is unjustified, or if the agency is an investigative agency that can investigate without using this Act.

Note:          The way a disclosure is investigated (or a refusal to investigate a disclosure) may be the subject of a complaint to the Ombudsman under the Ombudsman Act 1976, or (in the case of an intelligence agency) to the IGIS under the Inspector‑General of Intelligence and Security Act 1986.

47  Principal officer must investigate disclosures

             (1)  The principal officer of an agency must investigate a disclosure if the handling of the disclosure is allocated to the agency under Division 1.

             (2)  Investigate, in relation to a disclosure, means investigate (or reinvestigate) whether there are one or more instances of disclosable conduct. The disclosable conduct may relate to:

                     (a)  the information that is disclosed; or

                     (b)  information obtained in the course of the investigation.

             (3)  For the purposes of subsection (2), an investigation (or reinvestigation) may include consideration of whether a different investigation (or reinvestigation) should be conducted:

                     (a)  by the agency; or

                     (b)  by another body;

under another law of the Commonwealth.

                 (4)   For the purposes of subsection (3), procedures established under a law of the Commonwealth (other than this Act) are taken to be a law of the Commonwealth.

48  Discretion not to investigate

             (1)  Despite section 47, the principal officer of the agency may decide not to investigate the disclosure, or (if the investigation has started) not to investigate the disclosure further, if:

                     (a)  the discloser is not, and has not been, a public official; or

                     (c)  the information does not, to any extent, concern serious disclosable conduct; or

                     (d)  the disclosure is frivolous or vexatious; or

                     (e)  the information is the same, or substantially the same, as information the disclosure of which has been, or is being, investigated as a disclosure investigation; or

                      (f)  the information concerns disclosable conduct that is the same, or substantially the same, as disclosable conduct that is being investigated under:

                                       (i)   a law of the Commonwealth other than this Act; or

                                      (ii)   the executive power of the Commonwealth;

                            and it would be inappropriate to conduct another investigation at the same time; or

                     (g)  the information concerns disclosable conduct that is the same, or substantially the same, as disclosable conduct that has been investigated under:

                                       (i)   a law of the Commonwealth other than this Act; or

                                      (ii)   the executive power of the Commonwealth;

                            and the principal officer is reasonably satisfied that there are no further matters concerning the disclosure that warrant investigation; or

                     (h)  the discloser has informed the principal officer of an agency that the discloser does not wish the investigation of the internal disclosure to be pursued, and the principal officer is reasonably satisfied that there are no matters concerning the disclosure that warrant investigation; or

                      (i)  it is impracticable for the disclosure to be investigated:

                              (i)  because the discloser’s name and contact details have not been disclosed; or

                             (ii)  because the discloser refuses or fails, or is unable, to give, for the purposes of the investigation, such information or assistance as the person who is or will be conducting the investigation asks the discloser to give; or

                            (iii)  because of the age of the information.

             (2)  If the principal officer decides not to investigate the disclosure, or not to investigate it further, this Act does not, by implication, prevent the information from being investigated otherwise than under this Act.

                 (3)   For the purposes of subparagraph (1)(f)(i) or (g)(i), procedures established under a law of the Commonwealth (other than this Act) are taken to be a law of the Commonwealth.

49  Investigative agency using separate investigative powers

             (1)  Despite section 47, if the agency is an investigative agency that has a separate investigative power in relation to the disclosure, the principal officer of the agency may decide:

                     (a)  to investigate the disclosure under that separate investigative power; and

                     (b)  not to investigate the disclosure, or (if the investigation has started) not to investigate the disclosure further, under this Act.

             (2)  A separate investigative power, in relation to the disclosure, is a power that an investigative agency has, otherwise than under this Act, to investigate the disclosure.

Note 1:       Under the Ombudsman Act 1976, the Ombudsman has power to investigate a disclosure allocated to the Ombudsman.

Note 2:       Under the Inspector‑General of Intelligence and Security Act 1986, the IGIS has power to investigate a disclosure allocated to the IGIS.

             (3)  On completing its investigation of the disclosure under its separate investigative power, the investigative agency must inform:

                     (a)  the principal officers of each of the agencies to which any of the suspected disclosable conduct relates; and

                     (b)  the discloser;

that the investigation is complete.

             (4)  Paragraph (3)(b) does not apply if contacting the discloser is not reasonably practicable.

50  Notification to discloser

                 (1)   The principal officer of the agency must, as soon as reasonably practicable, inform the discloser of the following (whichever is applicable):

                     (a)  that the principal officer is required to investigate the disclosure;

                     (b)  that the principal officer has decided under section 48 or 49 not to investigate the disclosure under this Division, or not to investigate the disclosure further.

          (1A)  If paragraph (1)(a) applies, the principal officer must inform the discloser of the estimated length of the investigation.

             (2)  If paragraph (1)(b) applies, the principal officer must inform the discloser of:

                     (a)  the reasons for the decision; and

                     (b)  other courses of action that might be available to the discloser under other laws of the Commonwealth.

             (3)  Despite paragraph (2)(a), the principal officer may delete from the reasons given to the discloser any reasons that would, if contained in a document, cause the document:

                     (a)  to be exempt for the purposes of Part IV of the Freedom of Information Act 1982; or

                     (b)  to have, or be required to have, a national security or other protective security classification; or

                     (c)  to contain intelligence information.

             (4)  The discloser may be informed of a matter under this section in the same document as the discloser is informed of a matter under subsection 44(2).

             (5)  This section does not apply if contacting the discloser is not reasonably practicable.

50A  Notification to Ombudsman or IGIS of decision not to investigate

             (1)  If:

                     (a)  the principal officer of the agency has decided under section 48 or 49 not to investigate the disclosure under this Division, or not to investigate the disclosure further; and

                     (b)  the agency is not the Ombudsman, the IGIS or an intelligence agency;

the principal officer must inform the Ombudsman of the decision, and of the reasons for the decision.

             (2)  If:

                     (a)  the principal officer of the agency has decided under section 48 or 49 not to investigate the disclosure under this Division, or not to investigate the disclosure further; and

                     (b)  the agency is an intelligence agency;

the principal officer must inform the IGIS of the decision, and of the reasons for the decision.

51  Report of investigation

             (1)  On completing an investigation under this Division, the principal officer of the agency must prepare a report of the investigation.

                 (2)   The report must set out:

                            (a)   the matters considered in the course of the investigation; and

                            (b)   the duration of the investigation; and

                            (c)   the principal officer’s findings (if any); and

                            (d)   the action (if any) that has been, is being, or is recommended to be, taken; and

                     (e)  any claims made about, and any evidence of, detrimental action taken against the discloser, and the agency’s response to those claims and that evidence.

Note 1:       For the purposes of paragraph (d), the report might include, for example, a recommendation that an investigation be conducted, under procedures established under subsection 15(3) of the Public Service Act 1999, into whether an APS employee has breached the Code of Conduct under that Act.

Note 2:       See also section 54 (adoption of findings of another investigation).

             (3)  In preparing the report, the principal officer must comply with any standards in force under section 74.

                 (4)   The principal officer must, within a reasonable time after preparing the report, give a copy of the report under subsection (2) to the discloser.

             (5)  However, the principal officer may delete from the copy given to the discloser any material:

                     (a)  that is likely to enable the identification of the discloser or another person; or

                     (b)  the inclusion of which would:

                              (i)  result in the copy being a document that is exempt for the purposes of Part IV of the Freedom of Information Act 1982; or

                             (ii)  result in the copy being a document having, or being required to have, a national security or other protective security classification; or

                            (iii)  result in the copy containing intelligence information; or

                            (iv)  contravene a designated publication restriction.

             (6)  Subsection (4) does not apply if contacting the discloser is not reasonably practicable.

52  Time limit for investigations under this Division

             (1)  An investigation under this Division must be completed within 90 days after the relevant disclosure was allocated to the agency concerned.

             (2)  The investigation is completed when the principal officer has prepared the report of the investigation.

             (3)  If the agency is not the IGIS or an intelligence agency, the Ombudsman may extend, or further extend, the 90‑day period by such additional period (which may exceed 90 days) as the Ombudsman considers appropriate:

                     (a)  on the Ombudsman’s own initiative; or

                     (b)  if the agency is not the Ombudsman—on application made by the principal officer of the agency; or

                     (c)  on application made by the discloser.

             (4)  If the agency is the IGIS or an intelligence agency, the IGIS may extend, or further extend, the 90‑day period by such additional period (which may exceed 90 days) as the IGIS considers appropriate:

                     (a)  on the IGIS’s own initiative; or

                     (b)  if the agency is not the IGIS—on application made by the principal officer of the agency; or

                     (c)  on application made by the discloser.

             (5)  If the 90‑day period is extended, or further extended:

                     (a)  the Ombudsman or the IGIS, as the case may be, must inform the discloser of the extension or further extension, and of the reasons for the extension or further extension; and

                     (b)  the principal officer of the agency must, as soon as reasonably practicable after the extension or further extension, inform the discloser of the progress of the investigation.

          (5A)  Subsection (5) does not apply if contacting the discloser is not reasonably practicable.

             (6)  Failure to complete the investigation within the time limit under this section does not affect the validity of the investigation.

53  Conduct of investigations under this Division

                 (1)   An investigation under this Division by the principal officer of an agency is to be conducted as the person thinks fit.

                 (2)   The principal officer may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as the principal officer thinks fit.

             (3)  Despite subsections (1) and (2), in conducting the investigation, the principal officer must comply with any standards in force under section 74.

             (4)  Despite subsections (1) and (2), the principal officer must act in accordance with the Commonwealth Fraud Control Guidelines in force under regulations made for the purposes of section 64 of the Financial Management and Accountability Act 1997, to the extent that:

                     (a)  the investigation relates to one or more instances of fraud against the Commonwealth (within the meaning of those Guidelines); and

                     (b)  those Guidelines are not inconsistent with this Act (apart from subsections (1) and (2)).

             (5)  Despite subsections (1) and (2):

                     (a)  to the extent that the investigation relates to an alleged breach of the Code of Conduct (within the meaning of the Parliamentary Service Act 1999), the principal officer must comply with the procedures established under subsection 15(3) of that Act; and

                     (b)  to the extent that the investigation relates to an alleged breach of the Code of Conduct (within the meaning of the Public Service Act 1999), the principal officer must comply with the procedures established under subsection 15(3) of that Act.

54  Adoption of findings of another investigation

             (1)  The principal officer conducting an investigation under this Division may, for the purposes of the investigation, adopt a finding set out in the report of:

                     (a)  an investigation or inquiry under:

                                       (i)   a law of the Commonwealth other than this Act; or

                                      (ii)   the executive power of the Commonwealth; or

                     (b)  another investigation under this Part;

conducted by the principal officer or any other person.

                 (2)   For the purposes of subparagraph (1)(a)(i), procedures established under a law of the Commonwealth (other than this Act) are taken to be a law of the Commonwealth.

Division 3Miscellaneous

56  Disclosure to a member of an Australian police force

             (1)  If, in the course of a disclosure investigation relating to a disclosure, the person conducting the investigation suspects on reasonable grounds that some or all of:

                     (a)  the information disclosed, or

                     (b)  any other information obtained in the course of the investigation;

is evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, the person may disclose the information, to the extent that it is such evidence, to a member of an Australian police force that is responsible for the investigation of the offence.

             (2)  However, if the offence is punishable by imprisonment for life or by imprisonment for a period of at least 2 years, the person must so notify such a member.

             (3)  This section does not, by implication, limit a person’s power to notify a matter to a member of an Australian police force.

57  Protection of witnesses etc.

             (1)  A person is not subject to any criminal or civil liability because the person (voluntarily or otherwise) gives information, produces a document or answers a question if:

                     (a)  the person does so when requested to do so by a person conducting a disclosure investigation; and

                     (b)  the information, document or answer is relevant to the investigation.

Note:          The first person may be the person whose disclosure gave rise to the disclosure investigation.

             (2)  This section does not apply to liability for an offence against section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code that relates to the information, document or answer, as the case may be.

             (3)  This section does not apply to proceedings for a breach of a designated publication restriction.

Note:          For designated publication restriction, see section 8.

             (4)  To avoid doubt, if the information, document or answer relates to the person’s own conduct, this section does not affect his or her liability for the conduct.

Part 4Administrative matters

Division 1Additional obligations and functions

58  Simplified outline

                         The following is a simplified outline of this Division:

This Division promotes the operation of this Act by imposing additional obligations on principal officers, authorised officers, supervisors and public officials, and by conferring additional functions on the Ombudsman and the IGIS.

Note:          The way the additional obligations are complied with (or non‑compliance with the additional obligations) may be the subject of a complaint to the Ombudsman under the Ombudsman Act 1976, or (in the case of an intelligence agency) to the IGIS under the Inspector‑General of Intelligence and Security Act 1986.

59  Additional obligations of principal officers

             (1)  The principal officer of an agency must establish procedures for facilitating and dealing with public interest disclosures relating to the agency. The procedures must include:

                     (a)  assessing risks that reprisals may be taken against the persons who make those disclosures; and

                     (b)  providing for confidentiality of investigative processes.

The procedures must comply with the standards made under paragraph 74(1)(a).

             (2)  Procedures established under subsection (1) are not legislative instruments.

             (3)  The principal officer of an agency must take reasonable steps:

                     (a)  to protect public officials who belong to the agency from detriment, or threats of detriment, relating to public interest disclosures by those public officials; and

                     (b)  to ensure that the number of authorised officers of the agency is sufficient to ensure that they are readily accessible by public officials who belong to the agency; and

                     (c)  to ensure that public officials who belong to the agency are aware of the identity of each authorised officer of the agency.

             (4)  The principal officer of an agency must ensure that appropriate action is taken in response to recommendations in a report under section 51, or any other matters raised in such a report, that relate to the agency.

60  Additional obligations of authorised officers

                   If:

                     (a)  an individual discloses, or proposes to disclose, information to an authorised officer of an agency; and

                     (b)  the authorised officer has reasonable grounds to believe that:

                              (i)  the information concerns, or could concern, disclosable conduct; and

                             (ii)  the individual may be unaware of what this Act requires in order for the disclosure to be an internal disclosure;

the authorised officer must:

                     (c)  inform the individual that the disclosure could be treated as an internal disclosure for the purposes of this Act; and

                     (d)  explain what this Act requires in order for the disclosure to be an internal disclosure; and

                     (e)  advise the individual of any orders or directions of which the authorised officer is aware that are designated publication restrictions that may affect disclosure of the information.

60A  Additional obligations of supervisors

                   If:

                     (a)  a public official discloses information to a supervisor of the public official; and

                     (b)  the supervisor has reasonable grounds to believe that the information concerns, or could concern, one or more instances of disclosable conduct; and

                     (c)  the supervisor is not an authorised officer of the agency to which the supervisor belongs;

the supervisor must, as soon as reasonably practicable, give the information to an authorised officer of the agency.

61  Additional obligations of public officials

             (1)  A public official must use his or her best endeavours to assist the principal officer of an agency in the conduct of an investigation under Part 3.

             (2)  A public official must use his or her best endeavours to assist the Ombudsman in the performance of the Ombudsman’s functions under this Act.

             (3)  A public official must use his or her best endeavours to assist the IGIS in the performance of the IGIS’s functions under this Act.

62  Additional functions of the Ombudsman

                         The functions of the Ombudsman include:

                            (a)   assisting:

                                       (i)   principal officers of agencies (other than intelligence agencies or the IGIS); and

                                      (ii)   authorised officers of agencies (other than intelligence agencies or the IGIS); and

                                     (iii)   public officials who belong to agencies (other than intelligence agencies or the IGIS); and

                                     (iv)   former public officials who belonged to agencies (other than intelligence agencies or the IGIS);

                                     in relation to the operation of this Act; and

                            (b)   conducting educational and awareness programs relating to this Act, to the extent to which this Act relates to:

                                       (i)   agencies (other than intelligence agencies or the IGIS); and

                                      (ii)   public officials who belong to agencies (other than intelligence agencies or the IGIS); and

                                     (iii)   former public officials who belonged to agencies (other than intelligence agencies or the IGIS); and

                            (c)   assisting the IGIS in relation to the performance of the functions conferred on the IGIS by this Act.

Note:          Section 5A of the Ombudsman Act 1976 extends the Ombudsman’s functions to cover disclosures of information that have been, or are required to be, allocated under section 43 of this Act (whether or not they are allocated to the Ombudsman), if the disclosable conduct with which the information is concerned relates to an agency other than an intelligence agency or the IGIS.

63  Additional functions of the IGIS

                         The functions of the IGIS include:

                            (a)   assisting:

                                       (i)   principal officers of intelligence agencies; and

                                      (ii)   authorised officers of intelligence agencies or the IGIS; and

                                     (iii)   public officials who belong to intelligence agencies or the IGIS; and

                                     (iv)   former public officials who belonged to intelligence agencies or the IGIS;

                                     in relation to the operation of this Act; and

                            (b)   conducting educational and awareness programs relating to this Act, to the extent to which this Act relates to:

                                       (i)   intelligence agencies; and

                                      (ii)   public officials who belong to intelligence agencies; and

                                     (iii)   former public officials who belonged to intelligence agencies; and

                            (c)   assisting the Ombudsman in relation to the performance of the functions conferred on the Ombudsman by this Act.

Note:          Section 8A of the Inspector‑General of Intelligence and Security Act 1986 extends the IGIS’s functions to cover disclosures of information allocated under section 43 of this Act (whether or not they are allocated to the IGIS), if the disclosable conduct with which the information is concerned relates to an intelligence agency.

Division 2Treatment of information

64  Simplified outline

                         The following is a simplified outline of this Division:

This Division creates offences relating to the inappropriate use or disclosure of information obtained through processes connected with this Act.

65  Secrecy—general

                 (1)   A person commits an offence if:

                            (a)   the person has information (protected information) that the person obtained:

                              (i)  in the course of conducting a disclosure investigation; or

                             (ii)  in connection with the performance of a function, or the exercise of a power, by the person under this Act; and

                            (b)   the person:

                                       (i)   discloses the information to another person; or

                                      (ii)   uses the information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

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

                     (a)  the disclosure or use is for the purposes of this Act; or

                     (b)  the disclosure or use is for the purposes of, or in connection with, the performance of a function, or the exercise of a power, of the person under this Act; or

                     (c)  the disclosure or use is for the purposes of, or in connection with, taking action in response to a disclosure investigation; or

                     (e)  the protected information has previously been lawfully published, and is not intelligence information; or

                      (f)  the protected information is intelligence information that has previously been lawfully published, and the disclosure or use occurs with the consent of the principal officer of the agency referred to in section 66 as the source agency for the intelligence information.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

                 (3)   Except where it is necessary to do so for the purposes of giving effect to this Act or another law of the Commonwealth, a person is not to be required:

                            (a)   to produce to a court or tribunal a document containing protected information; or

                            (b)   to disclose protected information to a court or tribunal.

66  Source agencies for intelligence information

                   For the purposes of paragraph 65(2)(f), if the information referred to in that paragraph is intelligence information because of a provision referred to in column 1 of an item of the following table, the source agency for the intelligence information is the agency set out in column 2 of that item:

 

Source agencies for particular kinds of intelligence information

Item

Column 1

Provision in the definition of intelligence information

Column 2

Source agency for the intelligence information

1

Paragraph 41(1)(a)

The intelligence agency with which the information originated, or from which it was received.

2

Subparagraph 41(1)(b)(i)

The intelligence agency that is, under item 1 of this table, the source agency for the information referred to in that subparagraph.

3

Subparagraph 41(1)(b)(ii) or (iii)

The intelligence agency referred to in that subparagraph in relation to the information.

4

Paragraph 41(1)(c)

The agency to which the public official referred to in that paragraph belongs.

5

Paragraph 41(1)(d)

The Defence Department.

6

Paragraph 41(1)(e)

The agency that is, under item 1, 2, 3, 4 or 5 of this table, the source agency for the information to which that paragraph applies.

7

Paragraph 41(1)(f)

The agency to which the agent or member of the staff referred to in that paragraph belongs.

8

Paragraph 41(1)(g)

The agency with which the information originated, or from which it was received.

 

67  Secrecy—legal practitioners

             (1)   A person commits an offence if:

                     (a)  the person has obtained information in the person’s capacity as the recipient of a public interest disclosure covered by item 4 of the table in subsection 26(1) (a legal practitioner disclosure); and

                            (b)   the person:

                                       (i)   discloses the information to another person; or

                                      (ii)   uses the information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

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

                     (a)  the disclosure or use is for the purpose of providing legal advice, or professional assistance, relating to a public interest disclosure (other than a legal practitioner disclosure) made, or proposed to be made, by the person who made the legal practitioner disclosure referred to in paragraph (1)(a); or

                            (b)   the information has previously been lawfully published.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Division 3Officials and agencies

68  Simplified outline

                         The following is a simplified outline of this Division:

This Division defines the key concepts of public official, agency, prescribed authority and principal officer.

Subdivision APublic officials

69  Public officials

                 (1)  For the purposes of this Act:

                            (a)   a public official means an individual mentioned in column 1 of an item of the following table; and

                            (b)   the public official belongs to the agency mentioned in column 2 of the item.

 

Public officials and the agencies to which they belong

Item

Column 1

Public official

Column 2

Agency to which the public official belongs

1

A Secretary of a Department.

The Department.

2

An APS employee in a Department.

The Department.

3

A Head of an Executive Agency.

The Executive Agency.

4

An APS employee in an Executive Agency.

The Executive Agency.

5

A principal officer of a prescribed authority.

The prescribed authority.

6

A member of the staff of a prescribed authority (including an APS employee in the prescribed authority).

The prescribed authority.

7

An individual who constitutes a prescribed authority.

The prescribed authority.

8

A member of a prescribed authority (other than a court).

The prescribed authority.

9

A director of a Commonwealth company.

The Commonwealth company.

10

A member of the Defence Force.

The Defence Department.

11

An AFP appointee (within the meaning of the Australian Federal Police Act 1979).

The Australian Federal Police.

12

A Parliamentary Service employee (within the meaning of the Parliamentary Service Act 1999).

The Department in which the Parliamentary service employee is employed.

13

An individual who:

(a) is employed by the Commonwealth otherwise than as an APS employee; and

(b) performs duties for a Department, Executive Agency or prescribed authority.

The Department, Executive Agency or prescribed authority.

14

A statutory officeholder, other than an individual covered by any of the above items.

Whichever of the following agencies is applicable:

(a) if the statutory officeholder is a deputy (however described) of the principal officer of an agency—that agency;

(b) if the statutory officeholder performs the duties of his or her office as duties of his or her employment as an officer of or under an agency—that agency;

(c) otherwise—the agency ascertained in accordance with the PID rules.

15

An individual who is a contracted service provider for a Commonwealth contract.

Whichever of the following agencies is applicable:

(a) if the relevant services are to be, or were to be, provided wholly or principally for the benefit of an agency, or of a party to a contract with an agency—that agency;

(b) otherwise—the agency ascertained in accordance with the PID rules.

16

An individual who:

(a) is an officer or employee of a contracted service provider for a Commonwealth contract; and

(b) provides services for the purposes (whether direct or indirect) of the Commonwealth contract.

Whichever of the following agencies is applicable:

(a) if the relevant services are to be, or were to be, provided wholly or principally for the benefit of an agency, or of a party to a contract with an agency—that agency;

(b) otherwise—the agency ascertained in accordance with the PID rules.

17

An individual (other than a statutory officeholder, a judicial officer or an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the individual by or under a law of the Commonwealth, other than:

(a) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or

(b) the Australian Capital Territory (Self‑Government) Act 1988; or

(c) the Corporations Act 2001; or

(d) the Norfolk Island Act 1979; or

(e) the Northern Territory (Self‑Government) Act 1978; or

(f) a provision prescribed by the PID rules.

The Department administered by the Minister administering that law.

18

An individual (other than a judicial officer) who exercises powers, or performs functions, conferred on the individual under a law in force in the Territory of Christmas Island (whether the law is a law of the Commonwealth or a law of the Territory).

The Department administered by the Minister administering the Christmas Island Act 1958.

19

An individual (other than a judicial officer) who exercises powers, or performs functions, conferred on the individual under a law in force in the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory).

The Department administered by the Minister administering the Cocos (Keeling) Islands Act 1955.

20

The Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

The Department administered by the Minister administering the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

             (2)  A statutory officeholder means an individual (other than a judicial officer or an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

                     (a)  the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or

                     (b)  the Australian Capital Territory (Self‑Government) Act 1988; or

                     (c)  the Corporations Act 2001; or

                     (d)  the Norfolk Island Act 1979 (except section 51D of that Act); or

                     (e)  the Northern Territory (Self‑Government) Act 1978.

             (3)  For the purposes of item 6 of the table in subsection (1):

                     (a)  a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976 is taken to be a member of the staff of the Ombudsman; and

                     (b)  a person who is a member of the staff referred to in subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986 is taken to be a member of the staff of the IGIS; and

                     (c)  a staff member of the Australian Commission for Law Enforcement Integrity is taken to be a member of the staff of the Integrity Commissioner.

                 (4)  To avoid doubt, a judicial officer, or a member of a Royal Commission, is not a public official for the purposes of this Act.

70  Individuals taken to be public officials

                 (1)   If:

                            (a)   an authorised officer of an agency believes, on reasonable grounds, that an individual has information that concerns disclosable conduct; and

                            (b)   apart from this subsection, the individual was not a public official when the individual obtained the information; and

                            (c)   the individual has disclosed, or proposes to disclose, the information to the authorised officer;

the authorised officer may, by written notice given to the individual, determine that this Act has effect, and is taken always to have had effect, in relation to the disclosure of the information by the individual, as if the individual had been a public official when the person obtained the information.

             (2)  The authorised officer may make the determination:

                     (a)  on a request being made to the authorised officer by the individual; or

                     (b)  on the authorised officer’s own initiative.

             (3)  If the individual requests an authorised officer of an agency to make the determination, the authorised officer must, after considering the request:

                     (a)  make the determination, and inform the individual accordingly; or

                     (b)  refuse to make the determination, and inform the individual of the refusal and the reasons for the refusal.

          (3A)  This section does not apply if the individual is a judicial officer or is a member of a Royal Commission.

                 (4)   A determination under this section is not a legislative instrument.

Subdivision BAgencies and prescribed authorities

71  Meaning of agency

For the purposes of this Act, agency means:

                            (a)   a Department; or

                            (b)   an Executive Agency; or

                            (c)   a prescribed authority.

72  Meaning of prescribed authority

Prescribed authorities

                 (1)   For the purposes of this Act, prescribed authority means:

                     (a)  a Statutory Agency; or

                     (b)  a Commonwealth authority (within the meaning of the Commonwealth Authorities and Companies Act 1997); or

                            (c)   a Commonwealth company; or

                            (d)   the Australian Federal Police; or

                            (e)   the Australian Security Intelligence Organisation; or

                             (f)   the Australian Secret Intelligence Service; or

                            (g)   the Defence Imagery and Geospatial Organisation; or

                            (h)   the Defence Intelligence Organisation; or

                             (i)   the Defence Signals Directorate; or

                             (j)   the Office of National Assessments; or

                     (k)  the Australian Prudential Regulation Authority; or

                             (l)   the High Court or any court created by the Parliament; or

                    (m)  the Office of Official Secretary to the Governor‑General; or

                            (n)   the Ombudsman; or

                            (o)   the IGIS; or

                     (p)  any body that:

                              (i)  is established by a law of the Commonwealth; and

                             (ii)  is prescribed by the PID rules; or

                            (q)   subject to subsection (2), the person holding, or performing the duties of, an office that:

                              (i)  is established by a law of the Commonwealth; and

                             (ii)  is prescribed by the PID rules.

Exceptions

                 (2)   For the purposes of this Act, a person is not a prescribed authority because he or she holds, or performs the duties of:

                            (a)   an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority; or

                            (b)   an office of member of a body; or

                     (c)  an office established by a law of the Commonwealth for the purposes of a prescribed authority.

             (3)  For the purposes of this Act, a Royal Commission is not a prescribed authority.

Intelligence agencies

             (4)  For the purposes of this Act, each of the following is taken to be a prescribed authority in its own right, and not to be part of the Defence Department:

                     (a)  the Defence Imagery and Geospatial Organisation;

                     (b)  the Defence Intelligence Organisation;

                     (c)  the Defence Signals Directorate.

Subdivision CPrincipal officers

73  Meaning of principal officer

                  (1)   For the purposes of this Act, the principal officer of an agency mentioned in column 1 of an item in the following table is the person specified in column 2 of the item.

 

Principal officers of agencies

Item

Column 1

Agency

Column 2

Principal officer

1

A Department.

The Secretary of the Department.

2

An Executive Agency.

The Head of the Executive Agency.

3

A prescribed authority of a kind mentioned in paragraph 72(1)(a), (b), (c), (e), (f), (g), (h), (i), (j), (k) or (p).

Whichever of the following individuals is applicable:

(a) the chief executive officer (however described) of the prescribed authority;

(b) if another individual is ascertained in accordance with the PID rules—that other individual.

4

The Australian Federal Police.

The Commissioner of Police (within the meaning of the Australian Federal Police Act 1979).

5

The High Court or any court created by the Parliament.

The chief executive officer of the court.

6

The Office of Official Secretary to the Governor‑General

The Official Secretary to the Governor‑General.

7

The Ombudsman.

The Ombudsman.

8

The IGIS.

The IGIS.

9

A prescribed authority that is constituted by an individual.

The individual.

             (2)  For the purposes of this Act:

                     (a)  the Chief Executive and Principal Registrar of the High Court is the chief executive officer of the High Court; and

                     (b)  the Registrar of the Federal Court is the chief executive officer of the Federal Court; and

                     (c)  the Chief Executive Officer of the Family Court of Australia and the Federal Circuit Court is:

                              (i)  the chief executive officer of the Family Court of Australia; and

                             (ii)  the chief executive officer of the Federal Circuit Court; and

                     (d)  the PID rules may provide that the chief executive officer of another specified court is the person holding, or performing the duties of, a specified office; and

                     (e)  the Registrar of the Administrative Appeals Tribunal is the chief executive officer of the Administrative Appeals Tribunal; and

                      (f)  the PID rules may provide that the chief executive officer of another specified Commonwealth tribunal is the person holding, or performing the duties of, a specified office.

Part 5Miscellaneous

  

74  Ombudsman may determine standards

                 (1)   The Ombudsman may, by legislative instrument, determine standards relating to the following:

                     (a)  procedures, to be complied with by the principal officers of agencies, for dealing with internal disclosures and possible internal disclosures;

                     (b)  the conduct of investigations under this Act;

                     (c)  the preparation, under section 51, of reports of investigations under this Act;

                     (d)  the giving of information and assistance under subsection 76(3), and the keeping of records for the purposes of that subsection.

                 (2)   Before determining a standard, the Ombudsman must consult the IGIS.

                 (3)   The Ombudsman must ensure that standards are in force under each of paragraphs (1)(a), (b) and (c) at all times after the commencement of this section.

75  Restriction on the application of secrecy provisions

             (1)  A provision of a law of the Commonwealth that prohibits the disclosure, recording or use of information does not apply to the disclosure, recording or use of information if:

                     (a)  the disclosure, recording or use is in connection with the conduct of a disclosure investigation; or

                     (b)  the disclosure, recording or use is for the purposes of the performance of the functions, or the exercise of the powers, conferred on a person by Part 3 or section 61; or

                     (c)  the disclosure, recording or use is in connection with giving a person access to information for the purposes of, or in connection with, the performance of the functions, or the exercise of the powers, conferred on the person by Part 3 or section 61;

and the disclosure, recording or use is not contrary to a designated publication restriction.

Note:          For designated publication restriction, see section 8.

             (2)  However, this section does not apply if:

                            (a)   the provision is enacted after the commencement of this section; and

                            (b)   the provision is expressed to have effect despite this section.

76  Annual report

                 (1)   The Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to Parliament, a report on the operation of this Act during that financial year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

                  (2)   The report must include:

                     (a)  in relation to each agency, statements of the following:

                              (i)  the number of public interest disclosures received by authorised officers of the agency during the financial year;

                             (ii)  the kinds of disclosable conduct to which those disclosures relate;

                            (iii)  the number of disclosure investigations that the principal officer of the agency conducted during the financial year;

                            (iv)  the actions that the principal officer of the agency has taken during the financial year in response to recommendations in reports relating to those disclosure investigations; and

                     (b)  a statement of the number and nature of the complaints made to the Ombudsman during the financial year about the conduct of agencies in relation to public interest disclosures; and

                     (c)  information about the Ombudsman’s performance of its functions under section 62; and

                     (d)  information about the IGIS’s performance of its functions under section 63.

                 (3)   The principal officer of an agency must give the Ombudsman such information and assistance as the Ombudsman reasonably requires in relation to the preparation of a report under this section.

             (4)  Despite subsection (3), the principal officer may delete from a document given to the Ombudsman under that section any material:

                     (a)  that is likely to enable the identification of a person who has made a public interest disclosure or another person; or

                     (b)  the inclusion of which would:

                              (i)  result in the document being a document that is exempt for the purposes of Part IV of the Freedom of Information Act 1982; or

                             (ii)  result in the document being a document having, or being required to have, a national security or other protective security classification.

             (5)  A report under this section in relation to a financial year may be included in a report under section 19 of the Ombudsman Act 1976 relating to the operations of the Ombudsman during that year.

77  Delegations

Principal officers

                 (1)   The principal officer of an agency (other than the IGIS or the Ombudsman) may, by writing, delegate any or all of his or her functions or powers under this Act to a public official who belongs to the agency.

Ombudsman

                 (2)   The Ombudsman may, by writing, delegate any or all of his or her functions or powers under this Act to:

                            (a)   a Deputy Commonwealth Ombudsman; or

                            (b)   a member of staff mentioned in section 31 of the Ombudsman Act 1976.

IGIS

                 (3)   The IGIS may, by writing, delegate any or all of his or her functions or powers under this Act to a member of staff mentioned in section 32 of the Inspector‑General of Intelligence and Security Act 1986.

78  Liability for acts and omissions

             (1)  A person who is:

                     (a)  the principal officer of an agency or a delegate of the principal officer; or

                     (b)  an authorised officer of an agency; or

                     (c)  a supervisor of a person who makes a disclosure;

is not liable to any criminal or civil proceedings, or any disciplinary action (including any action that involves imposing any detriment), for or in relation to an act or matter done, or omitted to be done, in good faith:

                     (d)  in the performance, or purported performance, of any function conferred on the person by this Act; or

                     (e)  in the exercise, or purported exercise, of any power conferred on the person by this Act.

             (2)  This section does not apply to a breach of a designated publication restriction.

Note:          For designated publication restriction, see section 8.

             (3)  This section does not affect any rights conferred by the Administrative Decisions (Judicial Review) Act 1977 to apply to a court, or any other rights to seek a review by a court or tribunal, 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.

             (4)  An expression used in subsection (3) has the same meaning as in section 10 of the Administrative Decisions (Judicial Review) Act 1977.

79  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.

80  Law relating to legal professional privilege not affected

                   This Act does not affect the law relating to legal professional privilege.

82  Other investigative powers etc. not affected

             (1)  This Act does not, by implication, limit the investigative powers conferred on an agency or a public official by a law of the Commonwealth other than this Act.

             (2)  This Act does not detract from any obligations imposed on an agency or a public official by a law of the Commonwealth other than this Act.

82A  Review of operation of Act

             (1)  The Minister must cause a review of the operation of this Act to be undertaken.

             (2)  The review must:

                     (a)  start 2 years after the commencement of this section; and

                     (b)  be completed within 6 months.

             (3)  The Minister must cause a written report about the review to be prepared.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

83  The PID rules

                   The Minister may, by legislative instrument, make rules 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.

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 21 March 2013

Senate on 24 June 2013]

 

(89/13)