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This is a Bill, not an Act. For current law, see the Acts databases.
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Public Interest Disclosure (Protection of
Whistleblowers) Bill 2002
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2002
The Parliament of
the
Commonwealth of Australia
THE SENATE
Presented and
read a first time
Public Interest Disclosure (Protection of
Whistleblowers) Bill 2002
No. , 2002
(Senator
Murray)
A Bill for an Act to encourage the disclosure of conduct
adverse to the public interest in the public sector, and for related
purposes
Contents
A Bill for an Act to encourage the
disclosure of conduct adverse to the public interest in the public sector, and
for related purposes
The Parliament of Australia
enacts:
Part 1 Preliminary
1 Short title
This
Act may be cited as the Public Interest Disclosure (Protection of
Whistleblowers) Act 2002.
2
Commencement
(1) Section 1 and this section commence on the
day on which this Act receives the Royal Assent.
(2) The remaining
provisions commence on a day, or days, to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) has not
commenced before the end of the period of 6 months commencing on the day on
which this Act receives the Royal Assent, that provision, by force of this
subsection, commences on the first day after the end of that period.
3
Objects of this Act
The objects of this Act are
to:
(a) support the principle of public interest disclosure and
safeguard the rights, including employment rights, of persons who make public
interest disclosures;
(b) provide a framework within which public
interest disclosures will be independently and rigorously dealt
with;
(c) provide a framework within which persons who make a public
interest disclosure will be protected.
4
Interpretation
(1) In this Act, unless the contrary intention
appears:
act includes
investigate.
agency has the same meaning as in the
Financial Management and Accountability Act
1997.
conduct includes an act or
omission.
detriment means:
(a) injury, damage
or loss; or
(b) intimidation or harassment;
or
(c) discrimination, disadvantage or adverse treatment in relation
to career, profession, employment, trade or business.
disclosable
conduct has the meaning given by
section 5.
employee includes a person who is an
employee within the meaning of the Public Service Act 1999 or the
Parliamentary Service Act 1999.
Executive Agency
means an Executive Agency within the meaning of the Public Service Act
1999.
GBE or Government Business
Enterprise has the same meaning as in the Commonwealth Authorities
and Companies Act 1997.
government agency
means:
(a) a Department of State, excluding an Executive Agency or a
Statutory agency; or
(b) an Executive Agency; or
(c) a
Statutory Agency.
offence means an offence under an
Act.
parliamentary agency means a Department of the
Parliament that is established under the Parliamentary Service Act
1999.
prescribed authority has the meaning given by
section 6.
proper authority has the meaning given by
section 11.
public interest disclosure means a
disclosure of information that the person making the disclosure believes on
reasonable grounds tends to show:
(a) that another person has
engaged, is engaging, or proposes to engage, in disclosable conduct;
or
(b) public wastage; or
(c) conduct involving
substantial risk to the environment; or
(d) that a person has
engaged, is engaging, or proposes to engage, in an unlawful reprisal;
or
(e) that a public official has engaged, is engaging, or proposes
to engage, in conduct that amounts to a substantial and specific danger to the
health or safety of the public;
and includes an anonymous
disclosure.
public official means:
(a) an
employee of an agency, including an agency head;
(b) a person
employed by or on behalf of an agency or in the service of a prescribed
authority, whether under a contract of service or a contract for services,
including a person who has ceased to perform those services;
or
(c) a person otherwise authorised to perform functions on behalf
of an agency or a prescribed authority.
public wastage
means conduct by a public official that amounts to negligent, incompetent or
inefficient management within, or of, an agency resulting, or likely to result,
directly or indirectly, in a substantial waste of public funds, other than
conduct necessary to give effect to a law of the
Commonwealth.
Statutory Agency means a Statutory Agency
within the meaning of the Public Service Act 1999.
unlawful
reprisal means conduct that causes, or threatens to cause,
detriment:
(a) to a person directly because a person has made, or
may make, a public interest disclosure; or
(b) to a public official
directly because he or she has resisted attempts by another public official to
involve him or her in the commission of an offence.
5 Meaning of
disclosable conduct
(1) For the purposes of this Act,
conduct is to be taken to be disclosable if:
(a) it is of a type
referred to in subsection (2); and
(b) it would, if proven,
constitute:
(i) a criminal offence; or
(ii) a
disciplinary offence; or
(iii) reasonable grounds for dismissing or
dispensing with, or otherwise terminating, the services of a public official who
is engaged in it.
(2) For the purposes of paragraph (1)(a), the
following types of conduct are disclosable:
(a) conduct of a person
(whether or not a public official) that adversely affects, or could adversely
affect, either directly or indirectly, the honest or impartial performance of
official functions by a public official or agency;
(b) conduct of a
public official which amounts to the performance of any of his or her official
functions dishonestly or with partiality;
(c) conduct of a public
official, a former public official or an agency that amounts to a breach of
public trust;
(d) conduct of a public official, a former public
official or an agency that amounts to the misuse of information or material
acquired in the course of the performance of official functions (whether for the
benefit of that person or agency or otherwise);
(e) conduct of a
public official of a kind that amounts to maladministration which is action or
inaction of a serious nature that is:
(i) contrary to law;
or
(ii) unreasonable, unjust, oppressive or improperly
discriminatory; or
(iii) based wholly or partly on improper
motives;
(f) a conspiracy or attempt to engage in conduct referred
to in paragraphs (a) to (e) (inclusive).
(3) In this
section:
disciplinary offence means conduct that
constitutes grounds for disciplinary action under the Public Service Act
1999 or the Parliamentary Service Act
1999.
6 Meaning of prescribed
authority
(1) A prescribed authority includes a Commonwealth
authority which is either of the following kinds of body that holds money
on its own account:
(a) a body corporate that is incorporated for a
public purpose by an Act;
(b) a body corporate that is incorporated
for a public purpose by:
(i) regulations under an Act; or
(ii) an Ordinance of an external Territory (other than Norfolk
Island) or regulations under such an Ordinance;
and is prescribed for
the purposes of this paragraph by regulations under this Act.
(2) For the purposes of subsection (1), none of the following
is a Commonwealth authority:
(a) a Corporations Act company;
(b) an Aboriginal association incorporated under Part IV of
the Aboriginal Councils and Associations Act 1976;
(c) an
association of employees that is an organisation within the meaning of the
Workplace Relations Act 1996.
(3) For the purposes of
subsection (1), all money that a body holds is taken to be held by it on
its own account, unless the money is public money as defined in section 5
of the Financial Management and Accountability Act 1997.
(4) A prescribed authority also includes a Commonwealth company
which is a Corporations Act company in which the Commonwealth has a controlling
interest. However, it does not include a company in which the Commonwealth has a
controlling interest through one or more interposed Commonwealth authorities or
Commonwealth companies.
(5) A prescribed authority also includes a
wholly-owned Commonwealth company which is any Commonwealth company other than a
company any of the shares in which are beneficially owned by a person other than
the Commonwealth.
7 Disclosures during
proceedings
If information that could amount to a public interest
disclosure is disclosed in the course of the proceedings of a court or tribunal,
the court or tribunal may refer the information to a proper
authority.
8 Other protection preserved
This Act does not
limit the protection given by any other Act or law to a person who makes a
public interest disclosure or prejudice any other remedy available to the
person.
9 Liability of agent of the Crown
An agent
of the Commonwealth who commits an offence against this Act is liable for a
penalty for the offence.
10 Legal professional
privilege
Nothing in this Act is to be taken to entitle a person to
disclose information which would otherwise be the subject of legal professional
privilege.
Part 2 Proper authorities
11 Meaning
of proper
authority
(1) Each of the following is a proper authority to
receive a public interest disclosure concerning a government agencys conduct or
the conduct of a public official in relation to the agency, or a public interest
disclosure that a person has engaged, is engaging, or proposes to engage, in an
unlawful reprisal:
(a) the agency head;
(b) the Public
Service Commissioner;
(c) the Public Service Merit Protection
Commissioner;
(d) the Commonwealth Ombudsman.
(2) Each
of the following is a proper authority to receive a public interest disclosure
concerning a parliamentary agencys conduct or the conduct of a public official
in relation to the parliamentary agency, or a public interest disclosure that a
person has engaged, is engaging, or proposes to engage, in an unlawful
reprisal:
(a) a Clerk or a Secretary of a parliamentary
agency;
(b) the Parliamentary Service
Commissioner;
(c) the Parliamentary Service Merit Protection
Commissioner;
(d) the Commonwealth Ombudsman.
12
Procedures
(1) An agency must establish
procedures:
(a) to facilitate the making of public interest
disclosures; and
(b) to deal with public interest disclosures that
it is the proper authority to receive;
as soon as practicable, and in any
event, within 12 months after:
(c) the commencement of this section;
or
(d) the agency comes into existence;
whichever is
later.
(2) An agency must ensure that procedures established under
subsection (1) are maintained.
(3) The procedures to be
established under subsection (1) must include procedures dealing with the
following:
(a) making public interest
disclosures;
(b) assisting and providing information to a person who
is considering making or who makes a public interest
disclosure;
(c) protecting a person who makes a public interest
disclosure from unlawful reprisals, including unlawful reprisals taken by public
officials in relation to the agency;
(d) acting on public interest
disclosures.
(4) The agency must, in respect of a document setting
out the procedures established and maintained in accordance with this
section:
(a) make a copy of the document available to its public
officials; and
(b) make a copy of the document available to the
public for inspection at all reasonable times; and
(c) supply to a
person a copy of the document on payment of an amount directed by the agency to
be paid in relation to supply of such a copy (being an amount that the agency
has determined, on reasonable grounds, to be equal to the costs that will be
incurred by the agency in providing such a copy).
13 Report on
disclosures
(1) An agency that is required by an Act to prepare
an annual report of its activities during a year for tabling before the
Parliament must include in the report:
(a) a description of the
procedures maintained by it under section 12 during the year;
and
(b) statistics relating to the year in accordance with
subsection (2); and
(c) particulars relating to the year in
accordance with subsection (3).
(2) The statistics to be
included in the annual report are:
(a) the number of public interest
disclosures received by the agency; and
(b) the number of each type
of public interest disclosure received by the agency; and
(c) the
number of public interest disclosures received by the agency that were referred
to it by other agencies; and
(d) the number of public interest
disclosures investigated by the agency; and
(e) where the agency has
referred public interest disclosures to other agencies for
investigation:
(i) the total number of disclosures referred;
and
(ii) the identity of each other agency to which a
disclosure was referred; and
(iii) the number of disclosures
referred to each other agency; and
(iv) the number of each type of
public interest disclosure referred to each other agency;
and
(f) the number of public interest disclosures on which the
agency declined to act under section 20; and
(g) the number of
public interest disclosures that were substantiated by the agencys investigation
of the disclosure.
(3) The annual report must include particulars of
remedial action taken by the agency in relation to:
(a) each public
interest disclosure that was substantiated on investigation by the agency;
and
(b) any recommendations of the Public Service Commissioner or
the Parliamentary Service Commissioner, as the case may be, that relate to the
agency.
Part 3Public interest disclosures
14 Making a
public interest disclosure
(1) Any person may make a public
interest disclosure to a proper authority.
(2) Without limiting the
generality of subsection (1), a person may make a public interest
disclosure:
(a) about conduct in which a person engaged, or about
matters arising, before the commencement of this Act;
and
(b) whether or not the person is able to identify any person
that the information disclosed concerns.
15 Anonymous
disclosures
(1) A person may make an anonymous disclosure in
accordance with this section and such a disclosure is protected by this
Act.
(2) An anonymous disclosure may only be made to a proper
authority specified in paragraph 11(1)(b), (c) or (d) or 11(2)(b), (c) or
(d), where the disclosure does not relate to the proper authority to whom the
disclosure is made.
(3) A person making an anonymous disclosure must
identify themselves to the head of a proper authority specified in
paragraph (11)(1)(b), (c) or (d) or 11(2)(b), (c) or (d) and request that
his or her identity be kept confidential by the proper
authority.
(4) The head of the proper authority must personally
consider an anonymous disclosure and make a preliminary assessment of the
disclosure against the matters mentioned in section 16 before referring the
matter without any identification of the person making the disclosure to staff
of the proper authority for further and full investigation.
(5) The
proper authority must maintain confidentiality when examining a matter referred
in accordance with this section.
(6) An anonymous disclosure is
subject to the tests set out in section 16.
16 Frivolous etc.
disclosures
(1) A proper authority may decline to act on a
public interest disclosure received by it if it consider
that:
(a) the disclosure is frivolous or vexatious;
or
(b) the disclosure is misconceived or lacking in substance;
or
(c) the disclosure is trivial; or
(d) there is a more
appropriate method of dealing with the disclosure reasonably available;
or
(e) the disclosure has already been dealt with
adequately.
(2) If an issue raised in a public interest disclosure
has been determined by a court or tribunal authorised to determine the issue at
law after consideration of the matters raised by the disclosure, the proper
authority shall decline to act on the disclosure to the extent that the
disclosure attempts to reopen the issue.
17 Referral without
investigation
Subject to section 20, if a public interest
disclosure received by a proper authority is not related to:
(a) the
conduct of the authority or of a public official in relation to the authority;
or
(b) a matter, or the conduct of any person, that it has a
function or power to investigate;
the proper authority must refer the
disclosure to an agency that, because it has a function or power to deal with
the conduct or matter the disclosure concerns, is a proper authority to receive
the disclosure.
18 Investigation by proper
authority
(1) A proper authority shall investigate a public
interest disclosure received by it if the disclosure relates
to:
(a) its own conduct or conduct of a public official in relation
to the authority; or
(b) a matter, or the conduct of any person,
that the authority has a function or power to investigate;
or
(c) the conduct of a person, other than a public official,
performing services for or on behalf of the authority.
(2) Where a
proper authority investigates a matter in accordance with subsection (1)
and is unable to investigate the matter impartially or without a conflict of
interest, the matter must be referred to another proper
authority.
(3) In all cases, where a proper authority is
investigating a public interest disclosure in relation to its own conduct, it
must notify the Commonwealth Ombudsman of the fact within 2 weeks of the
disclosure.
19 Non-investigation by proper
authority
(1) Where a proper authority decides not to
investigate a public interest disclosure received by it, the proper authority
must refer the matter to either the Commonwealth Ombudsman or the
Auditor-General seeking their approval to not investigate the
disclosure.
(2) Where action of the kind mentioned in
subsection (1) occurs, subsection 21(2) of this Act applies.
20
Referral with investigation
(1) Subject to subsection (2),
if a public interest disclosure being investigated by a proper authority relates
to:
(a) the conduct of another agency or the conduct of a public
official in relation to another agency; or
(b) a matter, or the
conduct of any person, that another agency has a function or power to
investigate;
the proper authority may refer the public interest
disclosure to the other agency.
(2) Nothing in this section affects
the duty of a proper authority to act under section 18.
21 No
referral
(1) A proper authority must not refer a public interest
disclosure to another agency under section 17 or subsection 20(1) if, in
the authoritys opinion:
(a) there is a serious risk that a person
would engage in an unlawful reprisal; or
(b) the proper
investigation of the disclosure would be prejudiced;
as a result of the
reference to the other agency.
(2) Where a non-referral of the type
mentioned in subsection (1) occurs, the matter must be referred immediately
to the Ombudsman who must decide what action is to be taken in relation to the
matter.
22 Action by proper authority
(1) Subject to
subsection (2), if, after investigation, a proper authority is of the
opinion that a public interest disclosure has revealed:
(a) that a
person has engaged, is engaging, or proposes to engage, in disclosable conduct;
or
(b) public wastage; or
(c) that a person has engaged,
is engaging, or proposes to engage, in an unlawful reprisal;
or
(d) that a public official has engaged, is engaging, or proposes
to engage, in conduct that amounts to a substantial and specific danger to the
health or safety of the public;
the authority must take such action as is
necessary and reasonable:
(e) to prevent the conduct or reprisal
continuing or occurring in future; and
(f) to discipline any person
responsible for the conduct or reprisal.
(2) Where the Public
Service Commissioner or the Parliamentary Service Commissioner reports that a
public interest disclosure has revealed:
(a) that a person has
engaged, is engaging, or proposes to engage, in disclosable conduct;
or
(b) public wastage; or
(c) that a person has engaged,
is engaging, or proposes to engage, in an unlawful reprisal;
or
(d) that a public official has engaged, is engaging, or proposes
to engage, in conduct that amounts to a substantial and specific danger to the
health or safety of the public;
a proper authority to which the
disclosure relates must, having regard to any recommendations of the Public
Service Commissioner or the Parliamentary Service Commissioner, take such action
as is necessary and reasonable:
(e) to prevent the conduct or
reprisal continuing or occurring in future; and
(f) to discipline
any person responsible for the conduct or
reprisal.
(3) Subsections (1) and (2) do not apply
if:
(a) an investigation, or a report by the Public Service
Commissioner or the Parliamentary Service Commissioner, reveals conduct referred
to in paragraphs (1)(d) or (2)(d); and
(b) the conduct is
necessary to give effect to a law of the Commonwealth.
23 Progress
report
(1) A person who makes a public interest disclosure, or a
proper authority which refers a disclosure to another proper authority, may
request the proper authority to which the disclosure was made or referred to
provide a progress report.
(2) Where a request is made under
subsection (1), the proper authority to which it is made shall provide a
progress report to the person or authority who requested it:
(a) as
soon as practicable after receipt of the request; and
(b) if the
proper authority takes further action with respect to the disclosure after
providing a progress report under paragraph (a):
(i) while the
authority is taking actionat least once in every 90 day period commencing on the
date of provision of the report under paragraph (a);
and
(ii) on completion of the action.
(3) A progress
report provided under subsection (2) must contain the following particulars
with respect to the proper authority that provides the
report:
(a) where the authority has declined to act on the public
interest disclosure under section 16that it has declined to act and the
ground on which it so declined;
(b) where the authority has
referred the public interest disclosure to another proper authoritythat it has
referred the disclosure to another authority and the name of the authority to
which the disclosure has been referred;
(c) where the authority has
accepted the public interest disclosure for investigationthe current status of
the investigation;
(d) where the authority has accepted the public
interest disclosure for investigation and the investigation is completeits
findings and any action it has taken or proposes to take as a result of its
findings.
(4) Nothing in this section prevents the proper authority
from providing a progress report in accordance with subsection (3) to a
person who may make a request under subsection (1).
24 Joint
action
If more than one proper authority is required by this Act to
act on a public interest disclosure, the proper authorities may enter into such
arrangements with each other as are necessary and reasonable:
(a) to
avoid duplication of action; and
(b) to allow the resources of the
authorities to be efficiently and economically used to take action;
and
(c) to achieve the most effective result.
Part 4
Unlawful reprisals
Division 1 Unlawful
reprisalsgeneral
25 Agency must protect its
officers against reprisals
Within 6 months of the commencement of
this Act, an agency must establish reasonable procedures to protect its officers
from reprisals that are, or may be, taken against them.
26
Offence
A person must not engage, or attempt or conspire to engage,
in an unlawful reprisal.
Penalty:
(a) if the offender is a
natural person100 penalty units or imprisonment for 1 year, or
both;
(b) if the offender is a body corporate500 penalty units.
27 Function to assist
complainant
(1) Where a proper authority receives a public
interest disclosure that relates to an unlawful reprisal, it shall provide the
person who made the public interest disclosure with information about the
protection and remedies available under this Act in relation to an unlawful
reprisal.
(2) A proper authority must provide a person who has
suffered an unlawful reprisal with access to counselling services if requested
by the person to do so.
28 Relocation powers
(1) Where
a public official in relation to an agency applies in writing to the agency for
relocation and the agency considers:
(a) that there is a danger that
a person will engage in an unlawful reprisal in relation to the public official
if the public official continues to hold his or her current position;
and
(b) that the only practical means of removing or substantially
removing the danger is relocation of the public official to another position in
an agency;
the agency must, as far as practicable, make arrangements for
relocation of the public official to another position in an
agency.
(2) Where a public official is relocated in accordance with
this section, the employing agency of the public official being relocated
must:
(a) meet all reasonable relocation expenses;
and
(b) take all reasonable steps to ensure that the public official
is placed in a position of equivalent level of salary and duties.
29
Consent to relocation
Section 28 does not authorise the
relocation of a public official in relation to an agency to another position in
the agency without the consent of the public official.
Division 2
Civil claims
30 Liability in damages
(1) A person who
engages in an unlawful reprisal is liable in damages to any person who suffers
detriment as a result.
(2) The damages may be recovered in an action
as for a tort in any court of competent jurisdiction.
(3) Any
remedy that may be granted by a court with respect to a tort, including
exemplary damages, may be granted by a court in proceedings under this
section.
31 Application for injunction or order
An
application to a Supreme Court of a State or Territory for an injunction or
order under section 32 may be made:
(a) by a person claiming
that he or she is suffering or may suffer detriment from an unlawful reprisal;
or
(b) by the Public Service Commissioner or the Parliamentary
Service Commissioner on behalf of a person referred to in
paragraph (a).
32 Injunction or order to take
action
(1) If, on receipt of an application under
section 31, a court is satisfied that a person has engaged, or is proposing
to engage, in:
(a) an unlawful reprisal; or
(b) conduct
that amounts to or would amount to:
(i) aiding, abetting,
counselling or procuring a person to engage in an unlawful reprisal;
or
(ii) inducing or attempting to induce, whether by threats,
promises or otherwise, a person to engage in an unlawful reprisal;
or
(iii) being in any way, directly or indirectly, knowingly
concerned in, or party to, an unlawful reprisal;
the court
may:
(c) order the person to take specified action to remedy any
detriment caused by the unlawful reprisal; or
(d) grant an
injunction in terms the court considers appropriate.
(2) The court
may, pending the final determination of an application under section 31,
make an interim order in the terms referred to in paragraph (1)(c) or grant
an interim injunction.
(3) The court may grant an injunction or an
interim injunction under this section whether or not the person has previously
engaged in conduct of that kind.
(4) The court may make an order or
an interim order under this section requiring a person to take specified action,
whether or not the person has previously refused or failed to take that
action.
33 Undertakings as to damages and costs
(1) If
the Public Service Commissioner or the Parliamentary Service Commissioner
applies under section 31 for an injunction or order, no undertaking as to
damages or costs is required.
(2) The Public Service Commissioner
or the Parliamentary Service Commissioner may give an undertaking as to damages
or costs on behalf of a person applying under section 31 and, in that
event, no further undertaking is required.
Part 5
Miscellaneous
34 Confidentiality
(1) A public official
must not, without reasonable excuse, make a record of, or wilfully disclose to
another person, confidential information gained through the public officials
involvement in the administration of this Act.
Penalty: 50 penalty
units.
(2) Subsection (1) does not apply to a public official
who makes a record of, or discloses, confidential
information:
(a) to another person for the purposes of this Act or
the regulations; or
(b) to another person, if expressly authorised
under another law of the Commonwealth; or
(c) for the purposes of a
proceeding in a court or tribunal.
(3) In this
section:
confidential information
means:
(a) information about the identity, occupation or whereabouts
of a person who has made a public interest disclosure or against whom a public
interest disclosure has been made; or
(b) information contained in a
public interest disclosure; or
(c) information concerning an
individuals personal affairs; or
(d) information that, if disclosed,
may cause detriment to a person.
35 False or misleading
information
A person must not knowingly or recklessly make a false or
misleading statement, orally or in writing, to a proper authority with the
intention that it be acted on as a public interest
disclosure.
Penalty:
(a) if the offender is a natural
person100 penalty units or imprisonment for 1 year, or both;
(b) if
the offender is a body corporate500 penalty units.
36 Limitation of
liability
(1) A person is not subject to any liability for
making a public interest disclosure or providing any further information in
relation to the disclosure to a proper authority investigating it, and no
action, claim or demand may be taken or made of or against the person for making
the disclosure or providing the further information.
(2) Without
limiting subsection (1), a person:
(a) does not commit an
offence under a provision of an Act which imposes a duty to maintain
confidentiality with respect to a matter; and
(b) does not breach an
obligation by way of oath or rule of law or practice requiring him or her to
maintain confidentiality with respect to a matter;
by reason only that
the person has made a public interest disclosure with respect to that matter to
a proper authority.
(3) Without limiting subsection (1), in
proceedings for defamation there is a defence of absolute privilege in respect
of the making of a public interest disclosure, or the provision of further
information in relation to a public interest disclosure, to a proper
authority.
(4) The defence of absolute privilege is not available
where the complaint is frivolous, vexatious or otherwise meets the conditions
specified in section 16.
37 Liability of person
disclosing
A persons liability for his or her own conduct is not
affected by the persons disclosure of that conduct in a public interest
disclosure.
38 Regulations
The Governor-General may make
regulations, not inconsistent with this Act, prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
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