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2004-2005-2006-2007
SENATE
PUBLIC INTEREST DISCLOSURES BILL 2007
EXPLANATORY MEMORANDUM
(Circulated with the authority of Senator Murray)
GENERAL OUTLINE
The purpose of the Public Interest Disclosures Bill 2007 is to create an effective and
transparent framework through which genuine public interest disclosures (sometimes
known as whistleblowing) are managed. In this way the legislation follows the life-
cycle of a disclosure from initial reporting to appropriate people, through the life of
the investigation and ultimately to the appropriate resolution of the issue.
With varying degrees of success, since the 1990s Australian governments at the State,
Territory and Commonwealth level have sought to deal with the issue of
whistleblowing and the way in which genuine public interest disclosures can be used
to make public administration more effective and accountable to the Australian
people. The Commonwealth public disclosure legislation has been particularly weak.
This Bill creates a new framework which learns from the drafting and implementation
successes and shortcomings of previous legislative frameworks at the
Commonwealth, State and Territory level. This process, while not being aligned with,
is indebted to the authors of the issues paper `Public Interest Disclosure Legislation in
Australia: Towards the Next Generation' put together by Dr AJ Brown and the State,
Territory and Commonwealth Ombudsman offices. The initial version of the paper
delivered at the `Vital Issues' Seminar of the Commonwealth Parliamentary Library
`Do I Dare? Whistleblowing Laws in Australia' Australian Parliament House,
Canberra, 16 August 2006, was the prompt for this Bill. The paper systematically
worked through the existing legislative frameworks in Australia and proposes best
practice standards. It revealed that while there is much to be proud of within the
existing framework no one piece of legislation is without its flaws.
The Public Interest Disclosures Bill 2007 is intended to be a next generation piece of
legislation that deals solely with the issue of whistleblowing within the public
administrative arena. It provides an effective framework which emphasises a tailored
risk management strategy which will not only provide the most effective protection
for genuine disclosures but also demand a clear and well set out strategy for the
handling of complaints within Commonwealth public agencies for the better
resolution of administrative misconduct.
The Public Interest Disclosures Bill 2007 replaces the Public Interest Disclosure
(Protection of Whistleblowers) Bill 2002.
FINANCIAL IMPACT
This Bill will have no financial impact on Government revenue but there will be a
need for agencies affected by this Bill to implement risk strategies and support
services which may be funded out of existing resources.
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 Short Title
This is a formal clause which provides for the Act, when it is enacted, to be cited as
the Public Interest Disclosures Act 2007.
Clause 2 Commencement
This clause provides for the commencement of the Act. It provides that all provisions
commence on the day the Act receives Royal Assent.
Clause 3 Purpose
This clause provides three key purposes of the Act. First, to create a framework that
facilitates the disclosure of information in the public interest. Second, to create a
framework that ensures disclosures of information in the public interest are properly
dealt with. Third, to provide practical protection (including relief from legal liability)
for people who disclose information in the public interest.
The purpose clause reflects the findings of the NSW Ombudsman that these three
basic prerequisites need to be fulfilled before most employees, and in this case
specifically public officials, will make a disclosure.1
Clause 4 Act Binds the Crown
This clause notes that if the Bill is passed it will bind the Crown in all respects.
However it also notes that this Act does not create a liability for the Crown but rather
is designed to create liabilities for individuals who through their act or omission
breach an offence in the Act.
Clause 5 Definitions
This clause defines certain terms with are set out in the Act. Some of the ten
definitions may benefit from further elucidation:
agency head - this definition, while it is formulated from references to
different pieces of legislation, is designed to create a comprehensive regime to
ensure that all heads of Commonwealth agencies, not merely Australian Public
Service agencies, are brought under the auspices of this Act to create a
thorough regime;
detrimental action - this definition means any act or omission which causes
detriment to any person, in which it was a ground of any significance that a
1
NSW Ombudsman (2004) `The Adequacy of the Protected Disclosures Act To Achieve Its
Objectives', Issues Paper April 2004/ June 2005.
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public official had made or may make a public interest disclosure. The phrase
"a ground of any significance" is one of the major points of principle set out in
the `General Outline' above. There has been a lot of debate over this standard,
and the more common 'materially significant' phrase is not regarded as clear as
'a ground of any significance' (the operative word being 'any'), even though it
does go close;
improper conduct - this definition of improper conduct sees the
amalgamation of issues of corrupt conduct which has been addressed at the
Commonwealth, State and Territory level combined for the first time into a
statutory procedure which sets out to comprehensively cover conduct which is
improper. In that context of the definition of improper conduct, the term
'inappropriate partiality' is a lift from some of the state definitions of corrupt
and improper
conduct and is regarded as a better term than `bad faith' because 'bad
faith' does not mean the same thing in that context;
public interest information - this definition is intended to provide a
comprehensive definition of public interest information which uncovers wrong
doing and improper conduct which it is in the public interest to reveal. This
definition also contains a comprehensive subjective/objective standard which
follows best practice;
public official - this definition which is constructed from a list of persons is
designed to create comprehensive coverage of public officials which extends
well beyond the Australian Public Service. It is important to note that
contractors and volunteers are included within this definition along with
former public officials.
It is also important to note that the term `whistleblowing' is not defined within this
clause or used within this Act. This is to emphasise that the focus should not be upon
the person providing information (who may do so for a variety of reasons) but rather
on the disclosure itself. This shift is designed to place primacy on addressing the
issue raised rather than the person who raised it.
Clause 6 Parliamentary immunity not affected
It is not uncommon for senators and members to be apprised of public interest
disclosures. This Bill intends their role to be enhanced and protected.
Nothing in the Act would affect the immunity of proceedings in Parliament under
section 49 of the Constitution and the Parliamentary Privileges Act 1987. In addition,
a public interest disclosure made to the President of the Senate or the Speaker of the
House of Representatives under section 7 may be referred by the President or the
Speaker to a committee of the Senate or the House of Representatives, respectively, in
accordance with a procedure of that House, or to the Senate or the House of
Representatives, respectively.
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Subclause (2) of the proposed provision would allow a complaint to be dealt with
under the right-of-reply procedures of the Houses or simply referred to the relevant
House for any further debate or consideration by that House.
The suggested provision would overcome another problem: the possibility of section
8 being interpreted as setting aside and replacing, in a limited way, the parliamentary
immunity applying to communications with senators and members.
Part 2 - Public Interest Disclosures
Division 1 - When a public interest disclosure is made
Clause 7 Public Interest Disclosures
This clause allows any public official who discloses public interest information in
accordance with clauses 7 to 9 of this Act to be protected under this Act.
Clause 8 Disclosures to proper authorities
This clause allows any public official to disclose public interest information to a
proper authority, who is a person who is obligated and able to deal with the issues
arising out of a public interest disclosure.
A range of appropriate people may be the proper authority. This is designed to reflect
the competing ideals in the Act. First, that a proper authority is clearly designated.
Second, that flexibility and specificity are covered by multiple reporting avenues so
that each public interest disclosure can be addressed correctly.
The disclosure regime established by the Act creates two basic categories:
1. internal disclosures that are made to a `proper authority' (clause 8); and
2. external disclosures that are made to persons other than proper authorities, i.e.
members of Federal Parliament or journalists (clause 9).
It is important to note that once the required thresholds are met the legal rights in Part
3 of this Act apply equally to whether a disclosure is made under either clause 7 or
clause 8. However, unsurprisingly, the obligations on proper authorities are
significantly greater than those imposed on members of Federal Parliament or
journalists.
Similarly agency heads retain reporting and other responsibilities (such as clause 26)
regardless of whether or not a disclosure has been internal or external. This is
designed to ensure that public officials who make disclosures under clause 8 are
reintegrated into the full protection regime created by this Act.
In this clause a `proper authority' covers four general categories:
· the direct supervisor of the public official;
· a designated officer within an agency for the purposes of being a proper
authority;
· an agency with direct legislative jurisdiction over the information contained in
the disclosure; and
· the Ombudsman or Deputy Ombudsman.
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And ten specific categories:
· an agency head if the information relates to that agency;
· where information relates to possible criminal offences the Australian Federal
Police;
· where the information relates to a Commonwealth law enforcement agency -
the Australian Commission for Law Enforcement Integrity;
· where the information relates to a Commonwealth intelligence or security
service the Inspector-General of Intelligence and Security;
· where the information relates to the misuse of public resources - the Auditor
General;
· where the information relates to a member of the Australian Defence Force -
the Defence Force Ombudsman;
· where the information relates to the APS Code of Conduct - the Public Service
Commissioner;
· where information relates to the Parliamentary Service Code of Conduct - the
Parliamentary Service Commissioner;
· where information relates to a Senator or Member of the House of
Representatives - the President of the Senate or the Speaker of the House of
Representatives;
· where information relates to a judicial officer - the Chief Justice of the High
Court of Australia, the Chief Justice of the Federal Court of Australia, the
Chief Justice of the Family Court of Australia, the Chief Magistrate of the
Federal Magistrates Court.
Subsection (4) also specifically allows designated third parties to hear public interest
disclosures if they are contained within a process established by a proper authority.
This includes issues such as a `whistleblowers hotline' which can provide timely
information to public officials, including contractors, who may wish to make a
disclosure but are unaware of the legal protections and obligations set out in this and
other pieces of legislation.
Clause 9 Disclosure to persons other than proper authorities
This clause covers the second tier in this stepped regime; external disclosures. It
provides that in certain situations a public official remains protected under this Act if
they disclose public interest information to a Federal Member of Parliament or to a
journalist. This external aspect of this legislation is critical to the operation of the
legislation as it ensures that there is a public avenue for public interest disclosures
which may otherwise not receive adequate attention or remedy. It is also sends a clear
signal to proper authorities that there are other avenues which may be utilised if they
do not adequately deal with the issue. This clause builds upon the work of the
Protected Disclosures Act 1994 (NSW) and also upon the broader legislative
framework in the United Kingdom.
It is important to note that requirements on recipients of external disclosures are far
less than those required of proper authorities. However once the thresholds required
of a public official to make an external disclosure are met they are afforded the same
level of protection as set out in Part 3.
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A public official may make a public interest disclosure to a Senator or a Member of
the House of Representatives if under all the circumstances it is reasonable for them
to do so and:
· the disclosure has already been made to a proper authority but to the
knowledge of the official has not been acted upon within 6 months; or
· the disclosure was acted upon by the proper authority but it was not adequate
or appropriate; or
· the disclosure concerns especially serious conduct, and exceptional
circumstances exist to justify the making of the disclosure.
A public official may make a public interest disclosure to a journalist if:
· they do not make the disclosure for the purposes of personal gain, whether
economic or otherwise; and
· under all the circumstances it is reasonable for the public official to make the
disclosure; and
· the disclosure has already been made to the proper authority or to the Senator
or Member of the House of Representatives but to the knowledge of the public
official has not been made within 6 months; or
· the disclosure has already been made to the proper authority or to the Senator
or Member of the House of Representatives but to the knowledge of the public
official the response was not adequate or appropriate; or
· the disclosure concerns especially serious conduct, and exceptional
circumstances exist to justify the public official making the disclosure.
Questions of reasonableness are questions of fact to be determined by the court,
commission or tribunal for the purposes of determining liability, rights or entitlements
under Part 3.
Clause 10 Disclosures remain disclosures in certain circumstances
This clause sets out that public officials will remain protected for the purposes of this
Act in the following circumstances:
· if they initially were anonymous to a proper authority but their identity is later
revealed to the original or another proper authority; or
· if they provide further information relating to the initial disclosure whether
they were the original provider of the information or not and whether the
information is provided voluntarily or they have been required to disclose
under this or any other Act; or
· if they honestly but mistakenly provided information to a person who they
thought was a proper authority; or
· if the information was provided before the commencement of this Act; or
· whether or not they can identify any person to whom the information relates.
Division 2 - Obligations of a proper authority to whom a disclosure is made
Clause 11 Obligation to carry out an investigation
Once a proper authority is given public interest information they have three options.
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First, they must investigate or ensure an investigation is undertaken regarding the
information disclosed to it under this Act if it relates to:
· The authority;
· A public officer or public sector contractor of the authority; or
· A matter or person that the authority has a function or power to investigate.
Second, if the proper authority is not the correct person to deal with the information
they must refer the information to a more appropriate proper authority and the more
appropriate proper authority must investigate the disclosure. A proper authority also
has the discretion to refer the information on to a more appropriate proper authority
even if they do have the ability to investigate the disclosure.
Third, the proper authority may refuse to investigate or discontinue the investigation
if the matter:
· is trivial;
· is vexatious;
· cannot be properly investigated due to the fact that sufficient evidence cannot
be found due to the amount of time that has elapsed since the matter occurred;
· has been adequately or properly investigated previously;
· would be more appropriately resolved by private legal action by a
complainant;
· does not contain public interest information, notwithstanding the fact that it
reasonably appeared to do so at the time the disclosure was made;
· the information never contained public interest information.
The proper authority must inform the Ombudsman whether or not they will
investigate the information. These interlink with the Ombudsman's powers under
Part 4.
If a proper authority determines that a person may be, may have been or may in the
future be involved in a matter which is the subject of a public interest disclosure the
proper authority must:
· take operational steps to prevent the matter to which the disclosure relates
from continuing or occurring in the future. This could include putting new
guidelines in place, ensuring that appropriate checks and balances are in place
etc;
· refer the matter to another person, body or organisation to investigate the
matter; or
· take or enable disciplinary actions or proceedings against those responsible for
the matter.
Clause 12 Risk assessment by proper authority
When a proper authority receives a public interest disclosure they must make an
assessment of the risk of reprisals, direct or indirect, against the person making the
disclosure.
This risk assessment is a very important innovation designed to tailor the approach of
the proper authority so that it suits each unique situation faced by people involved in
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public interest disclosures. This risk assessment therefore informs all the decisions
made in relation to the proper authority carrying out her/his obligation.
Clause 13 Proper authority to notify official of action taken
This clause ensures that the public official remains appropriately informed throughout
the assessment process. A proper authority is required (provided it does not adversely
affect a person's safety, the investigation of an offence or identify any additional
people making related disclosures) to notify the public official as soon as practicable
of action or proposed action taken or a progress report in relation to a disclosure.
Notwithstanding this obligation a public official may either before or after this report
request a current status report in relation to a disclosure.
The proper authority must also provide a final report to the public official which sets
out:
1) the outcome of the investigation; and
2) the reason for taking the action.
It is important to note that this notification process will only come into effect if the
identity of the public official who made the disclosure is known.
Clause 14 Limitation on information provided by the proper authority
This clause emphasises that while providing information to the public official
regarding the investigation process it is important such reports must not provide
information that, in the proper authority's opinion, would be likely to adversely
affect:
· any person's safety;
· the investigation of an offence or possible offence; or
· necessary confidentiality about the existence or identity of another public
official who has made a disclosure other than the person being given the
information.
Clause 15 Confidentiality
This clause states that a person must not disclose information that might identify or
tend to identify anyone a person who has made a disclosure of public interest
information under this Act.
This confidentiality does not apply if the following circumstances exist:
· the person consents to the disclosure of information;
· the disclosure is necessary having regard to the rules of natural justice; or
· the disclosure is necessary to have the matter investigated effectively.
However in the interests of keeping the provider of the information involved in the
process the public official must be informed a reasonable time before disclosing the
information that:
· the disclosure has been made; and
· the reason for the disclosure is given.
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To avoid doubt this confidentiality protection is also extended to a person against
whom public interest disclosures have been made. This is to ensure that until
disclosures are substantiated that as much as possible is done to protect the reputation
of people against whom disclosures are made.
However this confidentiality does not apply if:
· the person consents to the disclosure of information;
· the disclosure is necessary to have the matter investigated effectively;
· the disclosure is necessary for the proper authority in taking action;
· there are reasonable grounds to believe that the disclosure of identifying
information is necessary to prevent or minimise the risk of injury to any
person or to property.
It is important to note that under subclauses (6) and (7) there is a strong emphasis on
the potential consequences of breaching confidentiality. In subclause (6) it notes that
if the breach is carried out by a public official then disciplinary proceedings may be
taken. In subclause (7) it notes that if any person provides information contrary to the
confidentiality requirements then these may expose the person to actions under clause
18 (reprisal an offence) or liability under clause 21 (remedies for detrimental action)
or both.
Clause 16 Relationship with other Acts
This clause is designed to set out a procedure regarding the overlap between public
interest disclosures and other complaints allegations and matters for investigation
under other pieces of legislation that may affect a proper authority. If there are other
pieces of legislation which empower the proper authority in addition to this one it is
intended that a disclosure may be resolved under those pieces of legislation even if
they were commenced under this Act. If this Act adds to the requirements for
investigation of a matter the proper authority should apply the obligations of this Act
in addition to those contained within the other pieces of legislation.
It is important to note that in the event of an inconsistency between this Act and
another Act, it will be the other, more specific piece of legislation which shall prevail.
An example of this could be the powers of investigation contained in the Ombudsman
Act 1976 whereby cross over could exist between a public interest disclosure and
other issues that are reported to the Ombudsman. However if there was an
inconsistency the Ombudsman Act 1976 would prevail.
If a proper authority chooses not to investigate any matter under this Act nothing in
this Act prevents them from acting in relation to the same matter under any other Act.
Part 3 - Protection
Clause 17 Immunity for public interest disclosures
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This clause sets out the parameters of protection for a person under this Act. Namely
a person who makes a public interest disclosure will be protected from civil or
criminal liability for making that disclosure.
This includes a defence of absolute privilege in a defamation proceeding and actions
regarding the confidentiality of information. This results in protection from
disciplinary action, dismissal or the termination of providing services.
It is important to note that subparagraphs 17(2)(d)(i) to (iii) do not only relate to
damages but also relate to other forms of relief (such as a declaration) for which an
affected person will not have to wait until damages are suffered.
For example a contractor may as yet not suffered damages pursuant to subparagraph
17(2)(d)(iii) but may wish to have the contract enforced or wish to claim specific
performance without directly pursuing a compensation avenue.
Clause 18 Reprisal an offence
This clause states that a person must not take detrimental action or threaten
detrimental action against another person because a public official has made or may
make a public interest disclosure.
The person against whom detrimental action or threatened detrimental action is taken
does not need to be the person who made the disclosure - it could be anyone: a friend,
family member, colleague or even a person who is wrongly assumed to be involved.
The key threshold question for this offence is whether the disclosure was `a ground of
any significance' for the detrimental action, even if the reasoning is false or
misdirected. A ground of significance is a highly important test as it recognises the
complex nature of public interest disclosures and reflects the evidential difficulties in
trying to make out public interest prosecutions.
The offence carries a penalty of 120 penalty units or imprisonment for 2 years.
Proceedings may be brought by official authorities such as the Director of Public
Prosecutions, the Australian Federal Police, a proper authority, an agency head, if the
victim is an Australian Public Service employee the Australian Service
Commissioner, the Ombudsman or the victim themselves. Proceedings must be
brought within 2 years of the offence occurring.
Clause 19 Criminal Code to apply
This clause sets out that Division 11 of the Criminal Code applies to all the offences
in Part 3.
Clause 20 Remedies for detrimental action - employment appeals
This clause sets out the ability of a public official to request an appeal or review of a
disciplinary action, of the appointment or transfer of the official or another official to
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a position as a public official or of unfair treatment of the official, if it is detrimental
action taken in relation to a public interest disclosure.
This clause in addition to clause 21 is designed to supplement the confidentiality
requirements in clause 15.
Clause 21 Remedies for detrimental action - civil liability
This clause creates a civil legislative action to remedy victimisation related to a public
interest disclosure. The offence requires that the defendant takes or threatens to take
detrimental action against another person substantially due to the fact that a public
official has made or intends to make a disclosure of public interest information. This
victimisation can be suffered by the friends, relatives, colleagues or even misplaced
victimisation relating to a person making a disclosure. The defendant may also be
liable under this subsection if making a public interest disclosure was `a ground of
any significance' in taking the detrimental action, notwithstanding the fact that there
may have been other grounds.
Action may also be taken if the defendant fails to take action in the fulfilment of their
duty to protect the claimant. This includes the obligations of agency heads to take all
reasonable steps to prevent detrimental action.
Both offences also require that the claimant suffers (economic or non-economic) loss
or damage.
The onus is upon the defendant to prove that the detrimental action would have been
taken against the person even if there was no public interest disclosure and that
substantial steps had already been taken regarding the detrimental action before the
defendant became aware that there was or might be a public interest disclosure. This
reversal of the onus reflects the importance in protecting persons from detrimental
action and reflects best practice.
An application for compensation may also be brought by a proper authority if consent
has been given by the claimant. Where this occurs the authority shall not be required
to give undertakings as to damages or costs, and shall only be required to pay the
defendant's costs in exceptional circumstances.
An action may be commenced within 6 years after the day on which the conduct
which created the damage accrued.
If a finding of fact has been made by a court in a criminal setting under section 18
then in a civil proceeding under this clause the findings of fact may be used as prima
facie evidence for the civil proceeding. As prima facie evidence this evidence is of
course rebuttable by contrary evidence presented by the defendant. This provision is
designed to save court time and also to alleviate the potential for misuse of the legal
process to discourage people from utilising their legal options.
Clause 22 Remedies for detrimental action - forum and quantum
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This clause sets out that actions under clause 20 may be taken to specialist or
generalist forums. This is to ensure that legal avenues created under this Act may be
pursued by the appropriate body ensuring that low cost options are available for the
simple resolution of matters by bodies with appropriate expertise.
If an action concerns an employer and an employee this clause sets out that it may be
heard by either the Australian Industrial Relations Commission as though it were a
relief action under section 643 of the Workplace Relations Act 1996 (without
limitation as to detrimental action suffered) or the Federal Court or Federal
Magistrates Court as thought it were a civil remedy under sections 320 and 413 of the
Workplace Relations Act 1996 (without limiting the circumstances which give rise to
the action).
If an action concerns any other persons then it may be heard by either the Human
Rights and Equal Opportunity Commission, the Federal Court or Federal Magistrates
Court as though it were a complaint of unlawful discrimination under Part IIB of the
Human Rights and Equal Opportunity Commission Act 1986 (without limiting the
type of detrimental action suffered) or any other federal or State court.
Regardless of the forum chosen for the commission, tribunal or court hearing an
application may award compensation for loss and damage as they see fit, including
exemplary damages, without limit as to amount of damages given.
Clause 23 Injunctions
This clause sets out that if a defendant has taken, takes or proposes to take detrimental
action against the claimant then the Court may grant:
· an injunction restraining the person from taking the action; or
· if the defendant is a Commonwealth officer an order of certiorari, mandamus
or prohibition to prevent the action having a detrimental effect.
It is important to note that a proper authority has standing to act for the claimant and
if they do so then the proper authority shall not be required to give undertakings as to
damages or costs and only under exceptional circumstances shall be required to pay
the defendant's costs.
Clause 24 Liability of person disclosing unaffected
This clause clearly states that regardless of the protections contained in this Act it
does not affect his or her liability regarding misconduct or any contravention of this
Act without reasonable or lawful excuse including breaches of confidentiality,
directions regarding the conduct or investigations including the maintaining of
secrecy and the provision of further information
Clause 25 Loss of protection
This clause sets of that if a public official makes a disclosure which he or she knows
to contain false or misleading information nothing in this Part applies or continues to
apply to them. This is to emphasis that this Act is not to be abused and to discourage
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in public officials any misunderstanding that this Act could be used to protect them
from the consequences of their own wrongdoing.
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Part 4 - Obligations of Agency Heads, the Ombudsman and the Public Service
Commissioner
26 Internal disclosure procedures
This clause establishes a timetable and underlying procedure to assist with the
implementation of the obligations and principles contained in the Act.
Within one year of the commencement of this Act the Ombudsman with the
assistance of the Public Service Commissioner must publish model internal disclosure
procedures to guide proper authorities and Commonwealth agencies.
Within two years of the commencement of this Act the agency head of a
Commonwealth department, agency or body must publish internal disclosure
procedures which are not inconsistent with the model procedures published by the
Ombudsman.
These internal procedures shall set out:
· why public interest disclosures are important to the agency;
· who is entitled to make public interest disclosures within, about or in respect
of the agency;
· who are proper authorities for receiving public interest disclosures about the
agency and how they may be contacted (while noting that they are not the only
proper authority);
· how public interest disclosures are to be managed and investigated in the
agency;
· how to meet the confidentiality requirements of this Act;
· how risks of detrimental action are to be assessed and managed;
· who is responsible for providing support, guidance and protection to agency
employees who make public interest disclosures under this Act; and
· how the effective implementation of the procedures will be monitored and
assessed.
Within the same two year period the agency head must designate a specific position
within the agency as the person responsible for coordinating the receipt, investigation,
notification and referral of public interest disclosures concerning the agency.
It is also required that an agency, including any proper authority, must include in their
annual reports information setting out:
· the number of public interest disclosures received by the agency over the
report period;
· the number of public interest disclosures investigated and wholly or partly
substantiated; and
· the results of actions taken as a result of investigations.
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27 Protection of employees
This clause sets out the types of frameworks which need to be put in place to ensure
to the greatest extent possible that detrimental action to public officials due to
disclosures is minimised by clear steps taken prior to, during and after any
investigation by an agency head.
This clause sets out the obligations of the agency head of a Commonwealth
department, agency or body clearly stating that the agency head must take all
reasonable steps to protect any employees of the agency from detrimental action or
the threat of detrimental action. This includes taking active steps to ensure that any
detrimental action is prevented, minimised, stopped or remedied.
To ensure this the agency head must ensure that a risk assessment is made regarding
risks of detrimental actions taken against any employee in relation to the disclosure.
This assessment should inform all other steps made in relation to the disclosure. To
avoid doubt if they are the proper authority the risk assessment under clause 11
satisfies this requirement.
If the assessment demonstrates that detrimental action is likely and that relocation of
the employee to an alternative position is the only way to remove or reduce the risk of
detrimental action the agency head, with the consent of the employee, will do
everything necessary and possible to relocate them.
The proper authority or agency head must as soon as is practical notify the
Ombudsman of any information of detrimental action, details of the risk assessment
informing the process and advice on how they intend to remedy the alleged
detrimental action. This is very important as it is provides a clear link between the
agency and the Ombudsman and assists the Ombudsman in carrying out their 'clearing
house' role.
28 Responsibilities of the Ombudsman - disclosures
This clause sets out the responsibilities of the Ombudsman in its 'clearing house' role
and how this is intended to work.
These responsibilities include that:
· within a year of the commencement of this Act publishing a protocol which
details when and how proper authorities are to notify the Ombudsman of
public interest disclosures;
· reviews any decision of a proper authority (whether it is to investigate or not
investigate) and may affirm or reverse the decision, refer the decision to
another proper authority or investigate it as thought it were a complaint under
the Ombudsman Act 1976, even if the Ombudsman would not normally have
jurisdiction to do so.
The Ombudsman may also make directions regarding:
· how a proper authority should investigate a matter;
· whether the Ombudsman should provide support in oversighting or
supervising or conducting a joint investigation with the proper authority;
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· when an investigation should be completed; and
· any other measures that should be taken to protect a person or prevent any
detrimental action in the course of an investigation.
It is important to note that these powers do not apply to proper authorities who
include the President of the Senate, the Speaker of the House of Representatives or
the Chief Justices' of the High, Federal or Family Courts of Australia or the Chief
Magistrate of the Federal Magistrates Court. In respect of disclosures regarding
members of Parliament or judicial officers the Ombudsman's role is confined to
annual reporting requirements.
Clause 29 Responsibilities of the Ombudsman - reports
This clause requires the Ombudsman to report to Federal Parliament on:
· the numbers and outcomes of disclosures received by proper authorities;
· the numbers of decisions reviewed and varied by the Ombudsman under this
section;
· levels of compliance with this Act; and
· any other matter considered relevant to the operation of the Act.
The report will be informed by all proper authorities and agency heads providing their
annual reporting information regarding public interest disclosures and investigation
data. It must also conform to the guidelines approved by the federal Parliament's
Joint Committee of Public Accounts and Audit.
To prepare the report the Ombudsman must consult with the Public Service
Commissioner and has the ability to enter into an arrangement for joint reporting for
this Act regarding the Australian Public Service agencies.
The Ombudsman may also present additional reports to the Parliament on any matter
in relation to his or her obligations under this Act.
Clause 30 Detrimental action
This clause sets out special requirements for the Ombudsman once he or she receives
information regarding detrimental action. This aspect of public interest disclosures
requires particular attention as detrimental action complaints need to be treated in
specialist ways. Detrimental action complaints are particularly complicated issues
which require particular attention above and beyond other types of disclosures
addressed in this Act. This is because, more than any other type of issue, detrimental
action complaints have the ability to undermine an effective public interest disclosure
framework.
The power in this clause is supported by the changes to the Ombudsman Act 1976
which ensures that the Ombudsman has the appropriate jurisdiction to deal with
public interest disclosures as set out in Schedule 2.
This clause notes that once the Ombudsman has been informed of any detrimental
action suffered in relation to a public interest disclosure the Ombudsman must:
· review the information provided by the agency;
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· determine the most appropriate proper authority to investigate or remedy the
alleged detriment (if this is an Australian Public Service employee this
authority will be the Public Service Commissioner, while the Ombudsman will
have jurisdiction over all alleged reprisals); and
· investigate the information as if it were a complaint under the Ombudsman Act
1976.
It is important to note that these powers do apply to proper authorities who include the
President of the Senate, the Speaker of the House of Representatives or the Chief
Justices' of the High, Federal or Family Courts of Australia or the Chief Magistrate of
the Federal Magistrates Court.
After the conclusion of the investigation by either a proper authority or the
Ombudsman and the Ombudsman is satisfied that a person has suffered a detrimental
action but for whatever reason no action has been taken by any other agency or person
the Ombudsman must take all reasonable steps to ensure that action is taken
including:
· the making of a report containing such findings and recommendations as the
Ombudsman sees fit;
· bringing criminal proceedings;
· bringing of proceedings for compensation; or
· bringing proceedings of injunctive relief.
This requirement reflects the belief that it should not be the sole responsibility of an
individual who has suffered detriment to pursue this issue, but rather that disclosures
under this Act are in the public interest and are not just a private matter. Therefore
the Ombudsman has been given appropriate powers to ensure that issues of
detrimental action may be pursued and that people who suffer them are properly
supported.
Part 5 - Miscellaneous
Clause 31 False and misleading information
This clause sets out that if a person knowingly provides information to a proper
authority that is false or misleading in a material particular.
The offence carries a penalty of 120 penalty units or imprisonment for 2 years.
Clause 32 Other laws
This clause clarifies that any protection given by this Act is in addition to any
privilege, protection or immunity existing apart from this Act.
Clause 33 Regulations
This clause establishes the regulation power which allows regulations to be made
which are necessary or convenient in giving effect to this Act.
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Clause 34 Review
This clause sets out that the Minister shall ensure that an independent review of this
Act is commenced after three years of the operation of this Act. The review shall be
conducted by an independent person who is a current or former judge of the
Commonwealth, State or Territory superior court of record, a former Ombudsman or a
former member of the Administrative Appeals Tribunal.
The review shall consider:
· the extent to which the purposes of this Act have been attained;
· the administration of this Act; and
· any other matter which appears relevant to the reviewer.
A report shall be prepared based upon the review and as soon as practical after its
preparation it shall be presented to the Parliament.
Clause 35 Amendments
This clause sets out appropriate amendments as required for this Act.
Schedule 1 Freedom of Information Act
This Schedule sets out that documents relating to public interest disclosures are
exempt if they would constitute an identifying disclosure are set out in the Public
Interest Disclosures Act 2007.
Schedule 2 Ombudsman Act
This Schedule sets out changes to the Act being a new subsection (4A) which ensures
that the Ombudsman can investigate detrimental action under the Public Interest
Disclosures Act 2007.
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