Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PUBLIC INTEREST DISCLOSURE BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Public Service and Integrity,
the Honourable Gary Gray AO MP)
PUBLIC INTEREST DISCLOSURE BILL 2013
Outline
The Public Interest Disclosure Bill 2013 (the Bill) will establish a legislative scheme to investigate
allegations of wrongdoing in the Commonwealth public sector and provide robust protections
for current or former public officials who make qualifying public interest disclosures under the
scheme. A public official for the purposes of the scheme is broadly defined covering persons in,
or with a relevant connection to, the Commonwealth public sector and includes directors and
officers of bodies subject to the Commonwealth Authorities and Companies Act 1997 as well as
employees of Commonwealth intelligence agencies and law enforcement agencies and, in
certain circumstances contractors providing services to the Commonwealth as well as their
employees.
The Bill would largely implement the Government's 2010 Response to the House of
Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower
Protection: a comprehensive scheme for the Commonwealth public sector.
The provisions of the Bill:
establish a framework to encourage and facilitate reporting of wrongdoing by public
officials in the Commonwealth public sector;
ensure that Commonwealth agencies properly investigate and respond to public interest
disclosures; and
provide protections to public officials who make qualifying public interest disclosures.
The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security (`the
IGIS') will have oversight functions for the scheme. The Ombudsman will be responsible for
assisting agencies and public officials in relation to the operation of the Act, including through
the conduct of educational and awareness programs. The IGIS will have that responsibility for
intelligence agencies and public officials who belong to intelligence agencies. The Ombudsman
is also responsible, in consultation with the IGIS, for determining standards including for
procedures to be complied with by principal officers for dealing with public interest disclosures,
the conduct of investigations and the preparation of investigation reports.
The Bill will not protect disclosures made before commencement. However, once the
measures in the Bill have commenced, a public official will be able to make a public interest
disclosure in relation to conduct which occurred before or after commencement.
A public official, who believes on reasonable grounds that information may concern an instance
of `disclosable conduct', as defined in clause 29, may make a disclosure to an authorised
internal recipient in an agency. A disclosure of that kind may be made to the official's agency,
to the Ombudsman, or to the IGIS if the conduct relates to an intelligence agency. A disclosure
may also be made to a prescribed Commonwealth investigative agency that has the power to
investigate a disclosure of this kind. The Bill provides for investigative agencies, in addition to
the Ombudsman and the IGIS, to be prescribed in the PID rules (clause 83 allows the Minister to
make rules prescribing matters necessary for giving effect to the Bill). This could include, for
2
example, the Australian Public Service Commissioner, the Merit Protection Commissioner and
the Commissioner for Law Enforcement Integrity.
The scheme will facilitate disclosures being reported to, and investigated, within government.
The scheme is intended to promote the integrity and accountability of the Australian
government public sector.
Principal officers of agencies are obliged to investigate a disclosure unless there is a basis for
not doing so under certain grounds. An investigation must be completed within 90 days after
being allocated to an agency, although this period may be extended by the Ombudsman or the
IGIS if considered appropriate. A principal officer is obliged to notify a discloser who is readily
contactable of certain matters relating to the handling of a disclosure, so that disclosers are
kept informed of the status of their disclosures and what actions, if any, are proposed to be
taken to address their concern.
The Bill provides broad protections for a public official who has made a qualifying public
interest disclosure within the terms of the legislation. In addition to providing immunity from
criminal, civil and administrative liability for making a public interest disclosure as defined in the
Bill, the Bill would make it an offence for a person to take reprisal action against any person as a
result of a person making, or proposing to make, a public interest disclosure. A public official
who has suffered reprisal action for making a public interest disclosure will be able to apply to
the Federal Court or Federal Circuit Court for a remedy, including compensation, injunction,
apology or any other order the Court thinks appropriate. Remedies would be available for
some disclosers through the Fair Work Act 2009, although a person could not make an
application for remedy under both that Act and the PID Bill.
Financial Impact Statement
Ongoing funding has been provided to the Office of the Commonwealth Ombudsman and the
Office of the Inspector-General of Intelligence and Security for their roles under the proposed
scheme.
No other financial impact is anticipated, with agencies to absorb costs associated with
establishing internal processes for handling and investigating public interest disclosures.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no regulation impact statement is
required for the measures contained in this Bill.
3
List of frequently used abbreviations:
Bill Public Interest Disclosure Bill 2013
IGIS Inspector General of Intelligence and Security
Ombudsman Commonwealth Ombudsman
FWA Fair Work Act 2009
APS Australian Public Service
Federal Circuit Court This refers to the Federal Magistrates Court which is soon to be
retitled as the Federal Circuit Court
4
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
As set out in the Outline of this Explanatory Memorandum, the Bill aims to establish a
legislative scheme to investigate allegations of wrongdoing in the Commonwealth public sector
and to provide robust protections for current or former public officials who make qualifying
public interest disclosures under the scheme.
The purpose of this Bill is to improve accountability and integrity in the Commonwealth public
sector by implementing the Government's Response to the House of Representatives Standing
Committee on Legal and Constitutional Affairs report Whistleblower Protection: a
comprehensive scheme for the Commonwealth public sector.
Human rights implications
Right to freedom of opinion and expression
The right to freedom of opinion and expression is contained in articles 19 and 20 of the
International Covenant on Civil and Political Rights (ICCPR). Article 19(2) of the ICCPR provides
that everyone shall have the right to freedom of expression and that this right includes the
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of their
choice. This right may be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary on limited grounds, including for the respect of the rights or
reputations of others.
The objects of this Bill include encouraging and facilitating the making of public interest
disclosures by public officials and ensuring that public officials who make such disclosures are
protected from adverse consequences. In providing this protection for disclosers this Bill
engages the right to freedom of expression.
In considering article 10 of the European Convention on Human Rights 1950, which is similar to
Article 19 of the ICCPR, the European Court of Human Rights found that the right to freedom of
expression applied in the workplaces of civil servants (Guja v Moldova [2008] ECHR 144). The
Court also observed that employees owe their employer a `duty of loyalty, reserve and
discretion'. The Court noted that any disclosure should be first made to the person's superior
or other competent authority or body. It went on to state that, `*i+t is only where this is clearly
impracticable that the information could, as a last resort, be disclosed to the public' (at *73+).
The scheme established by this Bill operates in a similar manner to the way the Court
considered the right to freedom of expression should apply to the workplaces of public officials.
5
Accordingly, in providing additional protections for persons who make public interest
disclosures, the Bill is consistent with the right to freedom of expression.
The Bill provides that certain information, such as intelligence information, can never be the
subject of a public interest disclosure other than an internal disclosure. The Bill however does
provide a mechanism allowing disclosure to the IGIS, as an independent external authority,
consistent with the objects of accountability and integrity in the Commonwealth public sector.
Limits on public disclosure of intelligence information are within the permitted restrictions
provided in Article 19(3) for the protection of national security or of public order.
Right to privacy
The prohibition on interference with privacy and attacks on reputation is contained in Article 17
of the ICCPR.
The right to privacy may be subject to permissible limitations. In order for an interference with
the right to privacy to be permissible, the interference must be authorised by law, be for a
reason consistent with the ICCPR and be reasonable in the particular circumstances.
Reasonableness, in this context, incorporates notions of proportionality, appropriateness and
necessity.
The Bill contains measures to ensure that the privacy of a public official who makes a public
interest disclosure is protected. Clause 28 of the Bill will allow a disclosure to be made
anonymously. Clause 20 of the Bill will create an offence for the disclosure of the identity of a
person who has made a public interest disclosure. This provision will allow a person to make a
disclosure in confidence and without fear of reputational damage if they do not wish their
identity to be known. Disclosure of identity will be permitted when it is for the purposes of the
Bill. In some cases it will be necessary for limited disclosure of the discloser's identity in order
to conduct an investigation into the conduct which is the subject of the disclosure. In such
cases the limited disclosure of the person's identity is reasonable and necessary.
The Bill also contains measures to ensure the content of public interest disclosures is protected.
In some cases public interest disclosures will contain personal information relating to other
public officials, and so it is appropriate that this information be protected. Again, disclosure will
be allowed for the purposes of investigating the conduct which is the subject of the disclosure.
This limited disclosure is reasonable and necessary, and serves a legitimate purpose (the
investigation of misconduct by public officials).
The Bill will also, in limited circumstances, allow for a public interest disclosure to be made
externally (including to the media). The discloser, however, will be required to ensure that no
more information is disclosed than is reasonably necessary in the public interest. Furthermore,
information subject to a range of designated publication restrictions, many of which aim to
protect an individual's personal information, will not be able to be disclosed publicly under this
scheme.
6
Right to work and rights in work
The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). The right
encompasses the right not to be unjustly deprived of work, or be subject to unfair dismissal.
This Bill engages the right by providing protection from reprisals, including workplace reprisals,
for public officials who make a public interest disclosure under the provisions of the Bill.
The Bill will prohibit the dismissal of an employee, alteration of an employee's position to his or
her detriment or discrimination between an employee and other employees, in relation to the
making or proposed making of a public interest disclosure. The Bill will provide for a range of
remedies if any of these reprisals occur, including reinstatement of a terminated employee.
Prohibition on retrospective criminal laws
Article 15 of the ICCPR contains a prohibition on retrospective criminal laws. Laws must not
impose criminal liability for acts that were not criminal offences at the time they were
committed.
The Bill will have a retrospective application in that conduct that can be the subject of a public
interest disclosure will include conduct that occurred before the commencement of the
measures in the Bill. However, conduct which would be able to be disclosed and which may
result in criminal liability would be conduct that would have contravened pre-existing criminal
laws. Such conduct would, therefore, already be subject to existing avenues for investigation
and potential penalties under the criminal law. Accordingly the Bill does not impose criminal
liability for acts that were not criminal offences at the time they were committed.
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in the definition of human rights in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
7
Notes on Clauses
Part 1 - Introduction
Division 1 - Preliminary matters
Clause 1: Short title
This clause provides that when the Bill is enacted, it is to be cited as the Public Interest
Disclosure Act 2013.
Clause 2: Commencement
The table in this clause sets out when provisions in the Bill would commence. Clauses 1 and 2
(and anything else not covered in the table) would commence on the day on which the Bill
receives Royal Assent.
Clauses 3 to 83 would commence on a date to be fixed by Proclamation. However, if any of the
provisions do not commence within a period of 6 months after Royal Assent they would
commence on the day after the end of that period.
Clause 3: Crown to be bound
This clause states that the Crown, in each of its capacities, is bound by the Bill.
Clause 4: Extension to external Territories
This clause provides for the Bill to extend to every external Territory.
Clause 5: Extension to things outside Australia
This clause explains that acts, omissions, matters and things done outside Australia are covered
by the Bill.
Division 2 - Objects
Clause 6: Objects
This clause sets out the objects of the Bill, which are to:
promote the integrity and accountability of the Commonwealth public sector;
encourage and facilitate the making of public interest disclosures by public officials;
ensure that public officials who make public interest disclosures are supported and are
protected from adverse consequences relating to the disclosures; and
ensure that disclosures by public officials are properly investigated and dealt with.
Division 3 - Overview
Clause 7 - Overview
This clause outlines the structure of the Bill, which provides protections for public officials who
make public interest disclosures and provides for investigation of disclosures that have been
made.
8
Division 4 - Definitions
Clause 8: Definitions
This clause defines a number of terms used throughout the Bill.
Part 2 - Protection of Disclosers
Division 1 - Protections
Clause 9: Simplified outline
This clause provides a simplified outline of Part 2 of the Bill, to assist readers.
Subdivision A - Immunity from liability
Clause 10: Protection of disclosers
Subclause 10(1) sets out that a person who makes a public interest disclosure, as defined in
clause 8, is not subject to any civil, criminal or administrative liability for making the disclosure.
This clause also provides that no contractual or other remedy may be enforced or sanction
imposed on the basis of making the disclosure.
Subclause 10(2) provides the discloser with absolute privilege for defamation proceeding in
respect of a public interest disclosure, as defined, and states that a contract to which the
discloser is a party must not be terminated on the basis that the disclosure constitutes a breach
of contract. This subclause is not intended to limit the effect of subclause 10(1).
Clause 11: Liability for false or misleading statements etc. unaffected
Subclause 11(1) has the effect that clause 10 will not apply to the making of a statement that is
false or misleading.
Subclause 11(2) further provides that clause 10 does not apply to liability for an offence against
section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code. These are offences that relate to
producing false or misleading documents and information. Subclause 11(2) does not limit the
operation of subclause 11(1).
Clause 12: Discloser's liability for own conduct not affected
This clause states that the discloser's liability for his or her own conduct is not affected by the
disclosure of that conduct under this scheme. The protection provided by clause 10 does not
affect the liability of a public official for their participation in unlawful conduct which they
subsequently report.
9
Subdivision B - Protection from reprisals
Clause 13: What constitutes taking a reprisal
The Bill protects a person from reprisal action in relation to the making or proposed making of a
public interest disclosure. This clause clarifies what actions constitute a reprisal. Subclause
13(1) provides that a person takes a reprisal if the person by act or omission causes any
detriment to another person (the second person) because they believe or suspect that the
second person or any other person may have made or proposes to make a public interest
disclosure.
Subclause 13(2) defines detriment to include any disadvantage including, but not limited to
dismissal, injury, alteration of an employee's position to their detriment and discrimination
between an employee and other employees of the same employer.
Subclause 13(3) has the effect that where a person takes administrative action that is
reasonable to protect a discloser from detriment, this action is not considered to be taking a
reprisal. For example, where a person has made a disclosure in relation to practices in their
immediate work area, it may be appropriate to transfer them to another work area to ensure
they are not subject to any detriment.
Clause 14: Compensation
Under subclause 14(1), if satisfied on application of a person that another person (`the
respondent') took, threatened to take, or is taking or threatening to take a reprisal action
against the person, the Federal Court or Federal Circuit Court may make an order requiring a
respondent to compensate the applicant for loss, damage or injury as a result of the reprisal or
threat. The Court may also order that the respondent's employer compensate the applicant for
a part of the loss or damage or, alternatively, make an order requiring the respondent and
employer to jointly compensate the applicant. The respondent's employer may also be wholly
responsible for compensating the applicant.
Under subclause 14(2), the Federal Court or Federal Circuit Court must not make an order
against the respondent's employer if they took reasonable precautions and exercised due
diligence, to avoid the reprisal or threat concerned.
Subclause 15(3) establishes that if an order is made that the respondent and their employer are
to jointly compensate the applicant they are jointly and severally liable to pay the
compensation concerned.
Clause 15: Injunctions, apologies and other orders
Subclause 15(1) provides that where the Federal Court or Federal Circuit Court is satisfied, on
application of a person, 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 an order
granting an injunction restraining the respondent from doing something or requiring the
respondent to do something, requiring the respondent to apologise or any other order the
Court considers appropriate.
Subclause 15(2) gives the Federal Court and Federal Circuit Court power to make orders,
including an injunction, against other people who are involved in taking, or conspiring to take,
10
reprisal action against a person in relation to the making or proposed making of a public
interest disclosure.
Clause 16: Reinstatement
Clause 16 gives the Federal Court or Federal Circuit Court power to order a person to be
reinstated to their position or a position at comparable level where satisfied that the person
has had their employment terminated as a reprisal for making a public interest disclosure or
proposing to make a disclosure.
Clause 17: Multiple orders
This clause clarifies that the Federal Court or Federal Circuit Court may make orders under
clauses 14, 15 and 16 for the same reprisal conduct against a person who has made, or
proposes to make, a public interest disclosure. For example, depending on the circumstances,
the court may consider it appropriate to make orders of reinstatement and compensation.
Clause 18: Interaction with remedies under the Fair Work Act 2009
The PID Bill, if enacted, would be a `workplace law' within the meaning of the Fair Work Act
2009 (FWA). This is confirmed in clause 22 of the PID Bill. As a result, the right to make a public
interest disclosure would be a workplace right for employees under the FWA.
The effect of subclause 18(1) is that a person cannot apply to the Federal Court or Federal
Circuit Court for an order under the PID Bill if they have applied for an order in relation to the
same conduct under sections 394 or 539 of the FWA. The effect of subclause 18(2) is that a
person who has made an application under the PID Bill cannot make an application to the court
under the FWA.
The effect of subclause 18(3) is that the limitation to prevent a person from pursuing a remedy
under both the PID Bill and the FWA will not apply if an application has been discontinued or
failed for want of jurisdiction.
Clause 19: Offences
Subclause 19(1) makes it an offence for a person to take a reprisal against another person. The
penalty for this offence is imprisonment for 6 months or 30 penalty units, or both.
Subclause 19(2) provides that in a prosecution for such an offence, it is not necessary to prove
that a public interest disclosure was made or was intended to be made. The focus is on the
intention of the person engaging in the reprisal.
Subclause 19(3) provides that a person commits an offence if he or she makes a threat against
another person (the second person) to take a reprisal against the second person or a third
person and intends the second person to fear that the threat will be carried out or is reckless as
to this occurring. Subclause 19(4) provides that the threat may be express or implied as well as
conditional or unconditional.
Subclause 19(5) provides that in any prosecution for such an offence, it is not necessary to
prove that the person threatened actually feared that the threat would be carried out.
11
Subdivision C - Protecting the identity of disclosers
Clause 20: Use or disclosure of identifying information
Subclause 20(1) makes it an offence for a person to disclose information that is likely to enable
identification of a person who has made a public interest disclosure, where that information
was obtained by any person in their capacity as a public official (that is `identifying
information'). The offence does not apply if the disclosure is made to the person who made the
public interest disclosure. The penalty for this offence is imprisonment for 6 months or 30
penalty units, or both.
Subclause 20(2) establishes that it is also an offence to use identifying information.
Subclause 20(3) provides that the disclosure or use of identifying information is not an offence
if it is for the purposes of the Bill, is in connection with the performance of a function conferred
on the Ombudsman under section 5A of the Ombudsman Act 1976 (to be inserted by a
proposed consequential amendment) or conferred on the IGIS under section 8A of the
Inspector-General of Intelligence and Security Act 1986 (to be inserted by a proposed
consequential amendment), or is for the purposes of a law of the Commonwealth or of a
prescribed law of a State or Territory. The disclosure of identifying information also does not
constitute an offence if the person who made the public interest disclosure has consented to
the disclosure or use of the identifying information, or if the identifying information has been
lawfully published.
Clause 21: Identifying information not to be disclosed etc. to courts or tribunals
This clause provides that a person who is, or has been, a public official is not required to
produce to a court or tribunal identifying information, or a document containing the identifying
information, unless it is necessary for the purpose of giving effect to the Bill. Identifying
information is defined in subclause 20(1)(b) to mean information that was obtained by any
person in that person's capacity as a public official and is likely to enable the identification of a
second person as a person who has made a public interest disclosure.
This clause is intended to provide further protection for the identity of persons who have made
public interest disclosures.
Subdivision D - Miscellaneous
Clause 22: Interaction with protections under Part 3-1 of the Fair Work Act 2009
This clause clarifies that Part 3-1 of the FWA (which provides for general workplace protections)
applies in relation to the making of a public interest disclosure by a public official who is an
employee as if, for the purposes of the FWA, the PID Bill were a workplace law and the making
of the disclosure was a process or proceeding under a workplace law.
Clause 18 will prevent an individual from seeking remedy under both the FWA and the PID Bill.
12
Clause 23: Claims for protection
This clause sets out how a person may seek to invoke the protections provided under the
scheme for making a public interest disclosure where court proceedings (`primary proceedings')
have been instituted against the person.
Under subclause 23(1) the person seeking to invoke the protection under clause 10 bears an
initial onus of pointing to evidence that suggests a reasonable possibility that the protection
applies. If the onus is discharged, the party taking the action against the individual then bears
the onus of proving the claim is not made out. These claims must be dealt with by the court in
separate proceedings and admissions, information and evidence made or given by the
individual in those separate proceedings are not admissible in evidence against the individual,
except in proceedings in respect of the falsity of the admission, evidence or information. The
evidence provided by the claimant or another person in the separate proceedings does not
amount to a waiver of privilege for the purposes of the primary proceedings.
Subclause 23(2) clarifies that a right under section 126H of the Evidence Act 1995 not to be
compelled to give evidence is a privilege for the purposes of subclause (1)(f) of clause 23.
Subclause (1)(f) provides that privilege is not waived for the purposes of the primary
proceedings where evidence is given in the separate proceedings. Section 126H of the
Evidence Act creates a protection of journalists' sources, sometime referred to as journalists'
privilege.
Clause 24: Protections have effect despite other Commonwealth laws
This clause provides that clauses 10, 14, 15or 16 have effect despite any other provision of a
law of the Commonwealth unless the provision is enacted after the commencement of this
clause and is expressed to have effect despite this Part or clause.
This ensures that the protection and remedies afforded to disclosers by the Bill are not
over-ridden by provisions of other laws, unless there is clear legislative intention to do so.
Division 2 - Public Interest Disclosures
Clause 25: Simplified outline
This clause provides a simplified outline for Division 2 to assist the reader.
Subdivision A - Public Interest Disclosures
Clause 26: Meaning of public interest disclosure
Subclause 26(1) outlines what constitutes a public interest disclosure for the purposes of the
Bill. A disclosure is a public interest disclosure if the disclosure is made by a person who is, or
has been, a public official, the recipient of the information is a person who is referred to in
column 2 of the table in subclause 26(1) for the particular type of disclosure in column 1 of the
table and all the further requirements in column 3 of the table are met for the particular type of
disclosure.
13
A disclosure will be an internal disclosure if made to an authorised internal recipient (defined at
clause 34) and the discloser believes on reasonable grounds that the information concerns one
or more instances of disclosable conduct. `Disclosable conduct' is defined at clause 29. The
disclosure must also not be contrary to a designated public restriction (defined at clause 40).
A disclosure will be an external disclosure if the disclosure is made to any person other than a
foreign public official, and the following further requirements are met:
the discloser believes on reasonable grounds that the information may concern one or
more instances of disclosable conduct;
on a previous occasion, the discloser made an internal disclosure of information that
consisted of, or included, the information now disclosed;
either or both of the following applies:
o a disclosure investigation relating to the internal disclosure has been completed;
o an investigation is required to be conducted under Part 3 of the Bill, and that
investigation has not been completed within the time limit in clause 52 (that is,
within 90 days unless the Ombudsman or IGIS has given an extension in
accordance with clause 52);
either or both of the following applies:
o the investigation under Part 3 of the PID Bill was inadequate;
o in any case, the response to the investigation was inadequate;
the disclosure is not, on balance, contrary to the public interest (subclause 26(3)
provides guidance as to the factors to be taken into account in determining this);
no more information is publicly disclosed than is reasonably necessary in the public
interest;
the disclosure is not contrary to a designated publication restriction (defined in
clause 40);
the information does not consist of, or include, intelligence information (defined in
clause 41); and
none of the conduct with which the disclosure is concerned relates to an intelligence
agency (intelligence agencies are defined in clause 8). Clause 35 provides when conduct
relates to an agency
A disclosure will be an emergency disclosure if the disclosure is made to any person other than
a foreign public official and the following further requirements are met:
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;
14
the extent of the information disclosed is no greater than is necessary to alert the
recipient to the substantial and imminent danger;
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;
if the discloser has previously made an internal disclosure of the same information,
there are exceptional circumstances justifying this disclosure being made before an
investigation of the internal disclosure is completed;
the disclosure is not contrary to a designated publication restriction (defined in
clause 40); and
the information does not consist of, or include, intelligence information (defined in
clause 41).
A disclosure will be a Legal practitioner disclosure if the disclosure is made to an Australian
legal practitioner as defined in clause 8 for the purpose of obtaining legal advice or professional
assistance in relation to the discloser having made or proposing to make a public interest
disclosure. The legal practitioner needs to hold the appropriate level of security clearance if the
discloser knows, or ought reasonably to have known, that any of the information has a national
security classification or other protective security classification. The information that is
disclosed also must not consist of, or include, intelligence information (defined in clause 41).
Subclause 26(2) provides that a disclosure made before the commencement of clause 26 is not
a public interest disclosure. The Bill will apply to a public interest disclosure made after
commencement that relates to conduct that occurred before or after commencement of the
scheme (see subclause 29(3)).
Subclause 26(3) provides guidance for disclosers in determining, for the purposes of making an
external disclosure, whether the disclosure is not, on balance, contrary to the public interest.
The subclause lists a range of factors to which regard must be had, which include any risk the
disclosure could cause damage to the security, defence, international relations or
intergovernmental relations of the Commonwealth, the principle that Cabinet information
should remain confidential unless it is already lawfully publicly available, the principle that
information should remain confidential if communicated in confidence by or on behalf of a
foreign government or authority, any risk that the disclosure could prejudice the proper
administration of justice, the principle that legal professional privilege should be maintained or
any other relevant matters.
Clause 27: Associated allegations
This clause complements clause 26 by providing that an allegation is also a public interest
disclosure if it is made in conjunction with a public interest disclosure and is an allegation to the
effect that the information disclosed concerns one or more particular instances of disclosable
conduct.
15
Clause 28: How a public interest disclosure may be made
Clause 28 provides that a public interest disclosure may be made:
orally or in writing (subclause 28(1));
anonymously (subclause 28(2)); or
without the discloser asserting that the disclosure is made for the purposes of the Bill
(subclause 28(3)).
Subdivision B - Disclosable conduct
Clause 29: Meaning of disclosable conduct
Clause 29 sets out what constitutes wrongful conduct which can be the subject of a public
interest disclosure. Disclosable conduct is conduct, of the kind set out in the table in subclause
29(1), engaged in by an agency, or a public official in connection with his or her position as a
public official.
Disclosable conduct also extends to conduct engaged in by a contracted service provider for a
Commonwealth contract in connection entering into, or giving effect to, the contract
(paragraph 29(1)(c)). The table in subclause 29(1) sets out a broad range of conduct that
constitutes disclosable conduct for the purposes of the scheme. These include conduct that:
contravenes a law of the Commonwealth, a State or a Territory;
contravenes of law in a foreign country which is applicable to the agency, public official
or service provider and which corresponds to a law in force in the Australian Capital
Territory;
perverts, or is engaged in for the purpose of perverting or attempting to pervert the
course of justice or conduct engaged in for the purpose of corruption of any other kind;
constitutes maladministration including conduct that is based in part on improper
motives, is unreasonable, unjust or oppressive or is negligent;
is an abuse of public trust;
constitutes scientific misconduct (as described in item 6 of the table). This is intended
to include practices that seriously deviate from those that are commonly accepted
within the scientific community for proposing, conducting, or reporting research. It
would not include honest errors or honest differences in interpretation or judgments of
data. This category of disclosable conduct also includes misconduct that relates to
scientific analysis, evaluation or the giving of scientific advice;
results in a wastage of public money or public property;
unreasonably results in a danger to the health or safety of one or more persons or
unreasonably increases the risk of such danger;
results in or increases the risk of a danger to the environment; or
16
any other conduct prescribed in the PID rules (clause 83 allows the Minister to make
rules prescribing matters necessary for giving effect to this Bill).
Clause 30: Officers or employers of a contracted service provider
The Bill broadly defines who is a public official for the purposes of the scheme (see clause 69).
This clause clarifies the Bill's application to conduct by individuals who are officers or
employees of a contracted service provider for a Commonwealth contract. The effect of
subclause 30(1) is that such an individual does not engage in conduct in connection with their
position as a public official unless the conduct is in connection with entering into the
Commonwealth contract or giving effect to the Commonwealth contract.
Subclause 30(2) defines who is a contracted service provider for a Commonwealth contract.
Subclause 30(3) defines a Commonwealth contract. A Commonwealth contract is a contract to
which the Commonwealth or a prescribed authority is a party and under which goods or
services are to be, or were to be, provided (i) to the Commonwealth or prescribed authority or
(ii) for and on behalf of the Commonwealth or prescribed authority, and in connection with the
performance of its functions or the exercise of its powers.
The Bill is not intended to apply to the conduct of contracted service providers or their officers
or employees where the conduct is not sufficiently connected with the Commonwealth.
Clause 31: Disagreements with government policies etc.
The purpose of this clause is to clarify that conduct is not disclosable conduct if it relates only to
government policy, or action taken or to be taken by a Minister, the Speaker of the House of
Representatives or the President of the Senate, or amounts, purposes or priorities of
expenditure or proposed expenditure relating to such policy or action, with which a person
disagrees. The scheme is intended to provide a framework for identifying and addressing
wrongdoing in the Commonwealth public sector. It is not the scheme's purpose to investigate
or review government policy decisions.
Clause 32: Conduct connected with courts or tribunals
Subclause 32(1) establishes that conduct is not disclosable conduct if it is conduct of a judicial
officer. Disclosable conduct also does not include conduct of the chief executive officer of a
court, or a member of that person's staff, when exercising a power of the court, performing a
function of a judicial nature or exercising a power of a judicial nature. Disclosable conduct does
not include conduct of a tribunal member, the chief executive officer of a tribunal, or a member
of that person's staff, when exercising a power of the tribunal. However, disclosable conduct
for the purposes of the scheme can apply to conduct relating to a court or tribunal that is of an
administrative nature and does not relate to the management or hearing of matters before the
court or tribunal.
Subclause 32(2) defines judicial officer to mean a Justice of the High Court, a Judge or Justice of
a court created by the Parliament or a Judge, Justice or Magistrate of a court of a State or
Territory.
17
Subclause 32(3) defines members of the staff of the chief executive officer of a court or tribunal
for the purposes of this clause.
Clause 33: Conduct connected with intelligence agencies
Clause 33 establishes that conduct is not disclosable conduct if it is conduct that an intelligence
agency or a public official who belongs to an intelligence agency engages in during the proper
performance of its functions or powers.
The clause is necessary as in certain circumstances intelligence agencies are authorised to
engage in conduct in a foreign country, in the proper performance of a function of the agency,
which might otherwise be inconsistent with a foreign law or, in certain circumstances,
Australian law. Those actions may therefore fall within the definition of `disclosable conduct' in
clause 29. For example, section 14 of the Intelligence Services Act 2001 provides that a staff
member or agent of an agency covered by that Act is not subject to any civil or criminal liability
in Australia for any act done outside Australia if the act is done in the proper performance of a
function of the agency. In these situations, it is important that the Australian intelligence
capability, which is authorised by Australian legislation, is not undermined or otherwise
impacted where the actions taken are fully within the proper performance of the duties or
functions of an agency. Clause 33 will also ensure that this conduct does not come within the
scope of the scheme.
Subdivision C - Authorised internal recipients
Clause 34: Meaning of authorised internal recipient
This clause establishes who is an authorised internal recipient for the purposes of receiving a
disclosure and relates to clause 26 (meaning of public interest disclosure). If the conduct
concerns an agency (other than an intelligence agency, the Ombudsman or the IGIS), an
authorised internal recipient will be a principal officer of the agency or a public official who is
authorised by the principal officer of the agency (see clause 36 for meaning of `authorised
officer'), the Ombudsman or an authorised officer of a prescribed investigative agency. The
disclosure may be made to an authorised officer in an agency to which the discloser belongs, or
last belonged, even though the conduct does not relate to that agency. It will then be a matter
for the authorised officer to allocate the handling of the disclosure in accordance with
clause 43.
Where the conduct with which the disclosure is concerned relates to an intelligence agency, the
authorised internal recipient will be an authorised officer of that agency. Disclosures may be
made directly to the IGIS as an authorised internal recipient where the discloser believes on
reasonable grounds it would be appropriate. Also, disclosures can be made to a prescribed
investigative agency if none of the relevant information is intelligence information (clause 41
defines intelligence information).
Items 3 and 4 in the table establish that the Ombudsman and IGIS are authorised internal
recipients if the disclosable conduct relates to the Ombudsman or the IGIS.
18
Clause 35: When disclosable conduct relates to an agency
Subclause 35(1) establishes that disclosable conduct relates to an agency if the agency, or a
public official who works for an agency at the time of the conduct, engages in the conduct. This
is a consideration in the context of clause 34 (who is an authorised internal recipient).
Subclause 35(2) deals with parent agencies and subsidiary agencies. It provides that if 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 the subsidiary agency is an unincorporated body that is a board, council,
committee, sub-committee or other body and the disclosable conduct would relate to the
subsidiary agency, for the purposes of this scheme it is instead taken to relate to the parent
agency. Agency is defined in clause 71.
Where an agency ceases to exist (for example, following a machinery of government change),
subclause 35(2), provides that conduct that occurred before the cessation of the agency is
instead taken, for the purposes of the Bill, to relate to the agency that acquired all the functions
of the agency that ceased to exist, or the agency that acquired functions to which the conduct
most closely relates, or an agency that is prescribed under the PID rules. Whether the agency
ceased to exist before or after the commencement of this clause is immaterial.
Clause 36: Meaning of authorised officers
This clause defines authorised officers for the purposes of the Bill. Authorised officers play a
central role in the investigation framework as they may receive a disclosure and are responsible
for determining where disclosures should be allocated for handling. The clause provides that
they may be the principal officer of an agency (defined in clause 73) or a public official
belonging to an agency who has been appointed in writing by the principal officer to take on
this role.
Subdivision D - External disclosures: inadequate investigations and responses to investigations
Clause 37: When investigations under Part 3 are inadequate
This clause outlines when an investigation conducted under Part 3 is inadequate. This concept
relates to one of the requirements for an external disclosure under clause 26.
Clause 37 provides that an investigation is inadequate if and only if:
the investigation has not been completed within the time limit set out in clause 52;
there is a failure to obtain information that is reasonably available, relevant and
materially significant in the course of conducting the investigation;
the findings set out in the report of the investigation are such that no reasonable person
could have reached them on the basis of the information obtained in the course of
conducting the investigation; or
the report of the investigation does not set out findings or recommendations that could
reasonably have been made on the basis of the information obtained in the course of
conducting the investigation.
19
Clause 38: When responses to investigations under Part 3 are inadequate
This clause sets out when a response to an investigation under Part 3 of the Bill is taken to be
inadequate. This concept relates to one of the requirements for an external disclosure under
clause 26. Under subclause 38(1), a response to an investigation will be inadequate if and only
if a report sets out recommendations that action be taken, a reasonable period has passed
since the report was prepared and either no reasonable person would consider that the action
that has been, is being, or is to be, taken in response to the recommendations is adequate or,
alternatively, no action has been, is being, or is to be, taken in response to the
recommendations.
The effect of subclause 38(2) is to clarify that to the extent that a response to an investigation
under Part 3 has been taken, is being, or is to be taken by a Minister or either of the Presiding
Officers, the response is for the purposes of the Bill taken not to be inadequate.
Clause 39: When responses to other disclosure investigations are inadequate
Subclause 39(1) provides that a response to a disclosure investigation that is not an
investigation under Part 3 is inadequate only if no reasonable person would consider that the
action that has been, is being, or is to be, taken in response to the investigation is adequate.
The effect of subclause 39(2) is to clarify that to the extent that a response to an investigation
other than under Part 3 has been taken, is being, or is to be taken by a Minister or either of the
Presiding Officers, the response is for the purposes of the Bill taken not to be inadequate.
Subdivision E - Miscellaneous
Clause 40: Meaning of designated publication restriction
This clause defines a designated publication restriction. A disclosure under clause 26 cannot be
contrary to a designated publication restriction.
The types of designated publications restrictions include suppression and non-publication
orders made by a court, orders under the Witness Protection Act 1994 and non-publication
directions issued by examiners under the Australian Crime Commission Act 2002. Information
protected by these orders is information generally determined to require a particularly high
degree of protection, and could for example cause prejudice to the safety or fair trial rights of
an individual. The scheme is not intended to undermine orders made under these provisions.
Clause 41: Meaning of intelligence information
This clause outlines what comprises intelligence information for the purposes of the scheme.
This is also important in the context of clause 26 which provides that external disclosures,
emergency disclosures or disclosures to a legal practitioner (i.e. for the purposes of obtaining
legal advice in relation to making or proposing to make a public interest disclosure) will not be
protected if they disclose of intelligence information.
Intelligence information is treated in this way under the Bill because the disclosure of
intelligence information can have grave consequences for Australia's national security, its
relationship with other countries and the safety of individuals. Intelligence information covers
sensitive information in relation to Australia's security and intelligence agencies and the
20
activities of those agencies, as well as sensitive law enforcement information. There is a strong
public interest in the successful prevention, disruption, detection and prosecution of criminal
activity. Subclause 41(2) defines sensitive law enforcement information as information the
disclosure of which is reasonably likely to prejudice Australia's law enforcement interests. This
subclause has been drafted to reflect the full range of activities that law enforcement agencies
currently undertake in performing their legitimate and lawful functions.
Paragraph 41(2)(a) is intended to cover the full breadth of law enforcement functions, and
recognises that law enforcement agencies are involved in a diverse range of activities. For
example, paragraph 41(2)(a) would capture the functions of the AFP, as set out in section 8 of
the Australian Federal Police Act 1979 (which includes the provision of policing services in
relation to Commonwealth offences and in relation to establishing, developing and monitoring
peace, stability and security in foreign countries, protection services and proceeds of crime
litigation). Further, paragraph 41(2)(a) ensures that activities to prevent, detect and address
professional misconduct and corruption within Commonwealth law enforcement agencies are
not impeded.
Paragraph 41(2)(b) is directed to not compromising the operational methodology and tools
used by law enforcement to undertake intelligence activities. Paragraph 41(2)(c) refers to the
protection and safety of informants or witnesses, persons associated with informants or
witnesses, or persons involved in the protection and safety of informants or witnesses.
Paragraph 41(2)(d) refers to ensuring that intelligence and law enforcement agencies are not
discouraged from giving information to a nation's government and government agencies.
21
Part 3 - Investigations
Division 1 - Allocating the handling of disclosures
Clause 42: Simplified outline
This clause provides a simplified outline of Division 3 to assist readers.
Clause 43: Authorised officer to allocate the handling of a disclosure
Clause 43 states that if a person (the discloser) discloses information to an authorised officer of
an agency (the recipient agency) the authorised officer must allocate the handling of the
disclosure to one or more agencies which may be or include the recipient agency.
Subclause 43(2) provides that subclause 43(1) does not apply if the authorised officer is
satisfied, on reasonable grounds, that there is no reasonable prospect that the disclosure can
be considered an `internal disclosure' for the purposes of the Bill (`internal disclosure' is defined
in clauses 8 and 26). Under subclause 44(3), the authorised officer is required to inform the
discloser of reasons for making a decision of that kind (if the discloser is readily contactable).
Subclause 43(3) sets out principles that an authorised officer is required to consider in deciding
an allocation so that a disclosure is allocated to an appropriate agency for handling.
To assist with determining an allocation, under subclause 43(4) an authorised officer may
obtain information from such persons, and make such inquiries, as they consider fit. Subclause
43(5) requires the authorised officer to use their best endeavours to make the allocation
decision within 14 days of the disclosure being made.
Under subclause 43(6), an authorised officer of an agency will require the consent of an
authorised officer in another agency before a disclosure can be allocated to that other agency.
Clause 44: Giving notice of the allocation decision
Subclause 44(1) requires an authorised officer to inform the principal officer of each agency to
which a disclosure is allocated of the allocation, the information that was disclosed, the
suspected disclosable conduct and the discloser's name and contact details if they are available.
Subclause 44(2) requires the authorised officer to inform the discloser of the allocation of their
disclosure if the discloser is readily contactable.
Subclause 44(3) requires the authorised officer to inform a discloser, if they are readily
contactable, of the reasons why a disclosure has not been allocated where the officer is
satisfied under subclause 43(2) that there is no reasonable basis on which the disclosure could
be considered an internal disclosure. The officer is also required to inform the discloser of any
other courses of action that might be available to the discloser under other Commonwealth
laws.
Clause 45: Subsequent allocations
Subclause 45(1) allows an authorised officer to re-allocate the handling of a disclosure to one or
more other agencies after making an allocation decision under clause 43 or under this clause.
Subclause 45(2) applies the rules in subclauses 43(3) to (6) as well as clause 44 to a subsequent
allocation decision.
22
Division 2 - The obligation to investigate disclosures
Clause 46: Simplified outline
This clause sets out a simplified outline of the Division to assist readers.
Clause 47: Principal officer must investigate disclosures
Subclause 47(1) requires a principal officer of an agency (as defined in clause 73) to investigate
a disclosure that has been allocated to the agency.
Subclause 47(2) defines investigate to mean investigate, or reinvestigate, whether there are
one or more instances of disclosable conduct. The disclosable conduct may relate to the
information that is disclosed or information obtained in the course of the investigation.
Subclause 47(3) provides that an investigation may include consideration of whether a different
investigation or reinvestigation should be conducted by the agency or another body under
another law of the Commonwealth. Where the alleged conduct indicates criminal activity, for
example, it may be more appropriate for such conduct to be investigated by the police. This is
consistent with the principle that the scheme align with other investigative schemes.
Subclause 47(4) confirms that procedures established under a Commonwealth law are taken to
be a law of the Commonwealth for the purposes of subclause (3). An example is
subsection 15(3) of the Public Service Act 1999 which requires an Agency Head under that Act
to establish procedures for determining whether an APS employee in the agency has breach the
Code of Conduct under that Act.
Clause 48: Discretion not to investigate
Subclause 48(1) gives a principal officer of an agency discretion not to investigate a disclosure,
or not to investigate a disclosure further, if one of the grounds set out in subclause 48(1)
applies.
Subclause 48(2) clarifies that a decision not to investigate a disclosure, or not to investigate it
further, does not prevent the information from being investigated otherwise than under the
Bill.
Subclause 48(3) confirms that for the purposes of subparagraph (1)(f)(i) and (1)(g)(i)
(information concerns disclosable conduct that is the same or substantially the same as conduct
that is being, or has been, investigated under a Commonwealth law other than under the Bill),
procedures established under a Commonwealth law are taken to be a law of the
Commonwealth. An example is subsection 15(3) of the Public Service Act 1999 which requires
an Agency Head under that Act to establish procedures for determining whether an APS
employee in the agency has breach the Code of Conduct under that Act.
Clause 49: Investigative agency using separate investigate powers
Clause 49 establishes that where an investigative agency has a separate investigation power in
relation to the disclosure, the principal officer of the investigative agency may decide to
investigate the disclosure under its own investigative power rather than to investigate the
disclosure, or further investigate the disclosure, under the Bill.
23
Subclause 49(2) defines a separate investigative power to mean a power that an investigative
agency has otherwise than under the Bill.
Subclause 49(3) provides that the principal officers of the agencies to which any of the
suspected disclosable conduct relates and the discloser (if readily contactable) must be
informed by the investigative agency that the investigation under the agency's separate
investigative power is complete. Such requirements would operate in addition to any
obligations that exist in an investigative agency's own legislation.
Clause 50: Notification to discloser
Subclause 50(1) requires the principal officer of an agency to inform the discloser, if they are
readily contactable, that the disclosure is required to be investigated or that a decision has
been made not to investigate the disclosure.
Subclause 50(2) requires the principal officer to inform the discloser of reasons for a decision
not to investigate a disclosure, and other courses of action that might be available to the
discloser under other Commonwealth laws. Under subclause 50(3), the principal officer may
delete from those reasons any reasons that would, if contained in a document, cause the
document to be exempt for the purposes of Part IV of the Freedom of Information Act 1982, or
cause the document to have, or be required to have, a national security or other protective
security classification or to contain intelligence information.
Subclause 50(4) permits the principal officer to give notice of the matters in this clause in the
same document that would give notice of an allocation decision under subclause 44(2).
Clause 51: Report of investigation
Subclause 51(1) requires the principal officer of an agency to prepare a report upon completing
an investigation under Division 2 of Part 3.
Subclause 51(2) sets out the requirements for the contents of a report, which are:
the matters considered in the course of the investigation;
the duration of the investigation;
the principal officer's findings, if any;
the action (if any) that has been, is being, or is recommended to be, taken; and
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.
Subclause 51(3) requires a principal officer to comply with standards in force under clause 74.
Clause 74 allows the Ombudsman to determine standards relating to the preparation of
reports.
Subclause 51(4) requires a principal officer to give a copy of the report to the discloser within a
reasonable time after preparing the report, if the discloser is readily contactable. Under
subclause 51(5), the principal officer may delete from that copy any material that is likely to
enable the discloser or another person to be identified, or any material the inclusion of which if
24
contained in a document would result in the document being exempt for the purposes of Part
IV of the Freedom of Information Act 1982, or result in the document having, or being required
to have, a national security or other protective security classification or to contain intelligence
information.
Clause 52: Time limit for investigations under this Division
Subclause 52(1) requires investigations under the Division to be completed within 90 days after
the disclosure is allocated to the agency.
Subclause 50(2) clarifies that an investigation is completed when the principal officer has
prepared the report of the investigation.
Subclauses 50(3) and (4) permit the Ombudsman and the IGIS (if the agency is the IGIS or an
intelligence agency) to extend, or further extend, the period for completing an investigation.
An extension request may be made by the principal officer of the agency or by the discloser.
The Ombudsman and IGIS may also extend the period for completing an investigation on their
own initiative.
Subclause 50(5) requires the Ombudsman or the IGIS to notify the discloser of an extension if
the discloser is readily contactable.
Subclause 50(6) clarifies that failure to complete the investigation within the time limit does
not affect the validity of the investigation.
Clause 53: Conduct of investigations under this Division
Subclause 53(1) provides that a principal officer may conduct an investigation under the
Division as they think fit. However, under subclause 53(3) the principal officer must comply
with any standards in force under clause 74.
Subclause 53(2) permits the principal officer to obtain information and make inquiries as they
see fit for the purposes of the investigation.
Subclause 53(4) requires a principal officer to act in accordance with the Commonwealth Fraud
Guidelines so far as the investigation relates to one or more instance of fraud against the
Commonwealth, and to the extent the Guidelines are not inconsistent with the Bill.
Under subclause 53(5) the principal officer must also comply with procedures established under
subsection 15(3) of the Parliamentary Services Act 1999 or the Public Service Act 1999 to the
extent the investigation relates to an alleged breach of the Codes of Conduct under those Acts.
Clause 54: Adoption of findings of another investigation
Subclause 54(1) permits a principal officer conducting an investigation under the Bill to adopt a
finding set out in a report of an investigation or inquiry under a law of the Commonwealth, or
the executive power of the Commonwealth, or another investigation under Part 3, whether
conducted by the principal officer or another person.
Subclause 54(2) confirms that procedures established under another Commonwealth law are
taken to be a law of the Commonwealth for the purposes of subparagraph (1)(a)(i) in subclause
25
54. An example is subsection 15(3) of the Public Service Act 1999 which requires an Agency
Head under that Act to establish procedures for determining whether an APS employee in the
agency has breach the Code of Conduct under that Act.
Clause 55: Estimate of duration of investigation
This clause requires a principal officer to notify the discloser, if they are readily contactable, of
an initial estimate of the likely duration of an investigation as soon as practicable after starting
an investigation under Part 3.
Division 3 - Miscellaneous
Clause 56: Disclosure to a member of an Australian police force
Subclause 56(1) confirms that if a person conducting an investigation relating to a disclosure
suspects on reasonable grounds that some or all of the information disclosed, or obtained in
the course of the investigation, is evidence of the commission of an offence, the person may
disclose the information to a member of an Australian police force, to the extent it is such
evidence.
Under subclause 56(2) a person must notify a member of an Australian police force of serious
offences, that is where the offence is punishable by imprisonment for life or by imprisonment
for a period of at least 2 years.
Subclause 56(3) clarifies that this clause is not intended to limit a person's power to notify a
matter to a member of an Australian police force.
This clause is not intended to interfere with the way in which police forces evaluate matters
referred to them, nor place any obligations on the police force to investigate the matter.
Clause 57: Protection of witnesses etc.
Subclause 57(1) provides that a person is not subject to any criminal or civil liability because the
person gives information, produces a document, or answers a question if requested to do so by
a person conducting a disclosure investigation, and the information, document or answer is
relevant to the investigation.
Subclause 57(2) provides that this clause does not apply to liability for an offence against
section 137.1, 137.2, 144.1 of the Criminal Code that relates to the information, document or
answer given by the person. These are offences of general application of producing false or
misleading documents and information. This ensures that witnesses who attempt to knowingly
mislead an investigator are not protected from the ordinary consequences of doing so.
Subclause 57(3) has the effect that the protection in subclause 57(1) does not apply to a
proceeding for breach of a designated publication restriction.
Subclause 57(4) clarifies that the clause is not intended to affect a person's liability for his or
her own conduct.
26
Part 4 - Administrative Matters
Division 1 - Additional obligations and functions
Clause 58: Simplified outline
This clause provides a simplified outline of the Division, to assist readers.
Clause 59: Additional obligations of principal officers
Subclause (1) provides that the principal officer (as defined in clause 73) of an agency is
responsible for establishing procedures for dealing with public interest disclosures relating to
that agency by public officials. The principal officer has the discretion to determine what
should feature in these procedures so that they can be adapted to individual agencies but the
procedures must comply with standards made under subclause 74(1)(a) by the Ombudsman.
However, the procedures must include assessing risks that reprisals may be taken against public
officials and providing for confidentiality of investigative processes.
Subclause (2) clarifies that procedures established under subclause (1) are not legislative
instruments. A `legislative instrument' is defined at section 5 of the Legislative Instruments Act
2003. In general terms, a legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by Parliament. Requirements
relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative
instruments are imposed under the Legislative Instruments Act. This subclause has been
included to assist readers so that they are aware that the requirements imposed by the
Legislative Instruments Act do not apply to procedures issued under this section.
Subclause (3) provides that the principal officer must also take reasonable steps to protect
public officials who belong to their agency from detriment, or threats of detriment, related to a
public interest disclosure by them and to ensure that the number of authorised officers (as
defined in clause 36) of the agency is sufficient to ensure that they are readily accessible to
public officials in the agency. Principal officers must also make sure that public officials who
belong to their agency are aware of the identity of these authorised officers. Authorised
officers are able to receive disclosures of information.
It is intended that this clause would encourage principal officers to develop measures to
prevent detrimental conduct occurring. This would facilitate greater utilisation of the public
interest disclosure scheme and dissuade those with the intention of engaging in acts of
detrimental conduct against disclosers.
By actively discouraging acts of detrimental conduct against disclosers through the provision of
preventative measures, this clause aims to foster an environment that is supportive of persons
who wish to make a public interest disclosure.
Subclause (4) provides that the principal officer of an agency must ensure that appropriate
action is taken in response to recommendations to a report issued under subclause 51.
Subclause 51 provides for reports to be made following an investigation of a public interest
disclosure. This will place an obligation on principal officers to take appropriate action
following an investigation.
27
Clause 60: Additional obligations of authorised officers
This clause applies where an individual discloses or proposes to disclose information to an
authorised officer and the authorised officer has reasonable grounds to believe that the
information concerns, or could concern, disclosable conduct and that the prospective discloser
may not be aware of the Bill's requirements for making an internal disclosure. In circumstances
such as this, the authorised officer must inform the individual that the disclosure could be
treated as an internal disclosure for the purposes of this Bill and explain the necessary
requirements.
The purpose of this clause is to ensure that people who may have information of disclosable
conduct are aware of the Bill and its protections. It enables an informed choice between this
scheme and other complaint mechanisms that exist through investigative agencies.
Clause 61: Additional obligations of public officials
This clause places additional obligations on public officials to assist others in the conduct of
their functions under the Bill. A `public official' is defined in clause 69.
Subclause 61(1) requires a public official to use his or her best endeavours to assist the principal
officer of an agency in the conduct of an investigation under the Bill.
Similarly, subclause (2) requires a public official to use his or her best endeavours to assist the
Ombudsman in the performance of the Ombudsman's functions under the Bill. Subclause (3)
imposes the same requirement in relation to providing assistance to the IGIS.
This clause clarifies that public officials are obliged to cooperate in investigations conducted
under this Bill.
Clause 62: Additional functions of the Ombudsman
Clause 62 provides that the Ombudsman has a range of additional functions to ensure the
proper implementation and operation of the public interest disclosure scheme. The
Ombudsman would assist principal officers, authorised officers, public officials (present and
former) in relation to the operation of the Bill and conduct education and awareness programs
for agencies and public officials in relation to the scheme.
The Ombudsman would also assist the IGIS in the performance of the functions conferred on
the IGIS by this Bill.
Clause 63: Additional functions of the IGIS
Clause 63 provides that the IGIS has a range of additional functions to ensure the proper
implementation and operation of the public interest disclosure scheme as it relates to
intelligence agencies. The IGIS would assist principal officers, authorised officers, public
officials (present and former) in relation to the operation of the Bill and conduct education and
awareness programs for agencies and public officials in relation to the scheme, as it relates to
intelligence agencies.
The IGIS would also assist the Ombudsman in the performance of the functions conferred on
the Ombudsman by this Bill.
28
This clause complements clause 62, which places similar obligations on the Ombudsman in
relation to the operation of the public interest disclosure scheme for agencies other than
intelligence agencies.
Division 2 - Treatment of information
Clause 64: Simplified outline
This clause provides a simplified outline of the Division, to assist the reader. It notes that this
Division creates offences relating to the inappropriate use or disclosure of information obtained
through the operation of the Bill.
Clause 65: Secrecy - general
Subclause 65(1) provides that it is an offence for a person who has obtained information
(protected information) in the course of conducting a disclosure investigation or in connection
with the performance of a function, or the exercise of a power, under the Bill, to disclose that
information to another person or use the information.
The penalty for this offence is imprisonment for two years or 120 penalty units, or both, which
is consistent with other Commonwealth offences relating to inappropriate use or disclosure of
confidential information.
Subclause 65(2) provides that the offence in subclause 65(1) does not apply if the disclosure or
use is for the purposes of the Bill or another law of the Commonwealth or in connection with
the performance of a function or the exercise of a power under the Bill, another law of the
Commonwealth or the executive power of the Commonwealth.
An exception is also provided if the disclosure or use is in connection with giving another
person (the second person) access to information for the purposes of, or in connection with,
these same laws or powers or if the information is already lawfully publicly available and is not
intelligence information.
Another exception is available if 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 clause 66 as the source agency for the intelligence
information.
A defendant in a prosecution of an offence under subclause 65(1) who seeks to rely on any of
the exceptions in subclause 65(2) would have the onus of adducing evidence that one or more
of these exceptions are available. This is consistent with the Commonwealth criminal law policy
that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly
more difficult for the prosecution to disprove that matter than for the defendant to establish it,
it is appropriate to require the defendant to adduce evidence on the matter. In this case the
defendant bears an evidential burden and must adduce, or point out, evidence that suggests a
reasonable possibility that the defence is made out. If this is done, the prosecution must refute
the defence beyond reasonable doubt.
Subclause 65(3) provides that a person is not required to produce to a court or tribunal a
document containing protected information or to disclose protected information to a court or
tribunal except where it is necessary to do so for the purposes of giving effect to the Bill or
29
another law of the Commonwealth. This will provide additional protection to information
obtained under this Bill.
Subclause 65(4) provides that, for the purposes of this clause, procedures established under a
law of the Commonwealth such as subsection 15(3) of the Public Service Act 1999 or other
procedures concerning codes of conduct, are taken to be a law of the Commonwealth. This
subclause will ensure that protected information is available for determining, for example,
breaches of these codes of conduct.
Clause 66: Source agencies for intelligence information
Subclause 65(2)(f) provides that the offence in that clause is not committed where 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 `source agency'
for that information.
Clause 66 provides which agency is the `source agency' for the purposes of subparagraph
65(2)(f) by reference to the table in clause 66.
This table provides that if the information is intelligence information as defined in a provision in
clause 41 referred to in column 1 of the table, the source agency is the agency identified in
column 2 of the table.
Clause 67: Secrecy - legal practitioners
Subclause 67(1) provides that a person commits an offence if they have obtained information in
their capacity as a legal practitioner under item 4 of the table in subclause 26(1) (a Legal
practitioner disclosure) and discloses the information to another person or otherwise uses the
information.
This offence ensures that information that is the subject of a legal practitioner disclosure is not
subject to further disclosure by the legal practitioner. The penalty for the offence is
imprisonment for 2 years or 120 penalty units, or both, which is consistent with other
Commonwealth offences for unauthorised disclosures.
Subclause 67(2) provides that the offence is not committed if 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) or if the information has already been
lawfully published.
A defendant in a prosecution of an offence under subclause 67(1) who seeks to rely on any of
the exceptions in subclause 67(2) would have the onus of adducing evidence that one or more
of these exceptions are available. This is consistent with the Commonwealth criminal law policy
that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly
more difficult for the prosecution to disprove that matter than for the defendant to establish it,
it is appropriate to require the defendant to adduce evidence on the matter. In this case the
defendant bears an evidential burden and must adduce, or point out, evidence that suggests a
reasonable possibility that the defence is made out. If this is done, the prosecution must refute
the defence beyond reasonable doubt.
30
Division 3: Officials and agencies
Clause 68: Simplified outline
This clause provides a simplified outline of the Division, to assist the reader. It notes that this
Division defines the concepts of public official, agency, prescribed authority and principal
officer, which are used throughout the Bill.
Subdivision A - Public Officials
Clause 69: Public officials
This clause defines `public official' for the purposes of the Bill. The definition of public official is
important because it identifies the persons who can make a public interest disclosure and the
persons whose conduct a public interest disclosure can be made about. Public officials include:
a Secretary of, or an APS employee in, a Department;
a Head of, or an APS employee in, an Executive Agency;
a principal officer of, or member of the staff of, or an individual who constitutes, a
prescribed authority (as defined in clause 72);
a member of a prescribed authority (other than a court);
a director of a Commonwealth company;
a member of the Defence Force;
an Australian Federal Police appointee;
a Parliamentary service employee (within the meaning of the Parliamentary Service Act
1999);
an individual who is employed by the Commonwealth otherwise than as an APS
employee and who performs duties for a Department, an Executive Agency or
prescribed authority;
certain statutory officeholders;
an individual who is a contracted service provider for a Commonwealth or an officer or
employee of a contracted service provider for a Commonwealth contract and who
provides services for the purposes of the Commonwealth contract;
individuals (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 laws of the Commonwealth or a Commonwealth
Territory (subject to certain exceptions, e.g. the Corporations (Aboriginal and Torres
Strait Island) Act 2006);
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 or in
the Territory of Cocos (Keeling) Islands; and
31
the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander
Corporations.
Subclause 69(2) provides a definition of statutory officeholder as featured in item 14 of the
column in subclause 69(1).
Subclause 69(3) clarifies that for the purposes of item 6 of the table in subclause 69(1), a person
who is a member of the staff referred to subsection 31(1) of the Ombudsman Act 1976 or
subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 is taken to be a
member of staff of the Ombudsman and IGIS respectively. A staff member of the Australian
Commission for Law Enforcement Integrity is taken to a member of staff of the Integrity
Commissioner.
Subclause 69(4) provides that, for the purposes of the Bill and the avoidance of doubt, a judicial
officer or a member of a Royal Commission is not a public official.
The definition of contracted service providers (see clause 30(2)) is intended to include
contracted service providers for a Commonwealth contract where the goods or services are
being provided on behalf of the Commonwealth to persons in the community.
Clause 70: Individuals taken to be public officials
This clause allows an authorised officer to determine persons to be public officials for the
purposes of the Bill. The purpose of this clause is to enable those with knowledge of
unacceptable conduct who are not public officials according to the definition in clause 69 to
make disclosures and receive the protection provided by the Bill.
To determine an individual to be a public official for the purposes of the Bill, the authorised
officer must believe, on reasonable grounds, that an individual has information that concerns
disclosable conduct. If the individual was not a public official when he or she obtained the
information and 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 the Bill has
effect in relation to the disclosure of the information by the individual as if the individual had
been a public official when they obtained the information.
A determination that an individual is a public official for the purposes of the Bill may be made
on a request being made to the authorised officer by the individual or on the authorised
officer's own initiative. If the individual makes the request and it is refused, the authorised
officer must notify the individual of the refusal and reasons for refusal.
Subclause 70(4) provides that a decision made by an authorised officer under this clause is not
a legislative instrument. A `legislative instrument' is defined at section 5 of the Legislative
Instruments Act 2003. In general terms, a legislative instrument is a written document that is of
a legislative character and that is made in the exercise of a power designated by Parliament.
Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth
legislative instruments are imposed under the Legislative Instruments Act. This subclause has
been included to assist readers so that they are aware that the requirements imposed by the
Legislative Instruments Act do not apply to procedures issued under this section.
32
Subdivision B - Agencies and prescribed authorities
Clause 71: Agencies
This clause defines `agency', for the purposes of the Bill, to mean a Department, an Executive
Agency (which has the same meaning as in the Public Service Act 1999, see clause 8) or a
prescribed authority. A definition of `prescribed authority' is found in clause 72.
Clause 72: Prescribed authorities
This clause lists the prescribed authorities for the purposes of the Bill. Prescribed authorities
include a Commonwealth authority, a Commonwealth company, the Australian Federal Police,
agencies of the Australian Intelligence Community and the High Court or any court created by
the Parliament.
Subclause 72(2) provides that a person is not a prescribed authority because he or she holds, or
performs the duties of:
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
an office of member of a body; or
an office established by a law of the Commonwealth for the purposes of a prescribed
authority.
Subclause 72(3) provides that for the purposes of this Bill, a Royal Commission is not a
prescribed authority.
Subclause 72(4) provides that the Defence Imagery and Geospatial Organisation, the Defence
Intelligence Organisation and the Defence Signals Directorate are taken to be prescribed
authorities in their own right, and not part of the Defence Department.
Subdivision C - Principal officers
Clause 73: Principal officers
This clause defines which officer of an agency is the `principal officer' for the purposes of the
Bill. Subclause 73(1) includes a table which provides, for each agency or category of agency,
who the `principal officer' of that agency is. It includes, for example, that the principal officer of
a Department is the Secretary of that Department, and that the principal officer of the
Australian Federal Police (AFP) is the Commissioner of the AFP. As the Bill places particular
obligations on principal officers it is important that there is clarity for each agency as to who
the principal officer is.
Item 5 in the table provides that, for each Commonwealth court, the principal officer is the
chief executive officer of the court concerned. Subclause 73(2) provides who the chief
executive officer is for certain courts and the Administrative Appeals Tribunal.
33
Part 5 - Miscellaneous
Clause 74: Ombudsman may determine standards
Subclause 74(1) provides that the Ombudsman may, by legislative instrument, determine
standards in relation to procedures to be complied with by principal officers of agencies for
dealing with internal disclosures and possible internal disclosures, the conduct of
investigations, the preparation of reports of investigations under the Bill and the giving of
information and assistance under subclause 76(3) relating to the preparation of the annual
report under clause 76.
Subclause 74(2) provides that the Ombudsman must consult with the IGIS before determining a
standard.
Subclause 73(3) provides that the Ombudsman ensure that the standards are in force at all
times.
Clause 75: Restriction on the application of secrecy provisions
This clause provides that a provision of a law of the Commonwealth that prohibits the
disclosure, recording or use of information does not apply if the disclosure, recording or use is
in connection with the conduct of a disclosure investigation, the performance of functions or
exercise of powers conferred on a person by Part 3 concerning investigations (as well as
additional obligations on public officials under clause 61) or giving a person access to
information for the purposes of that Part or clause. However, these laws of the
Commonwealth prohibiting the disclosure, recording or use of information apply if a provision
is enacted after the commencement of this clause and is expressed to have effect despite this
clause.
This clause ensures that the conduct of investigations under this Bill is not affected by the
operation of secrecy provisions in other legislation. Division 2 of Part 4 of the Bill provides the
circumstances in which information obtained in investigations remains confidential.
Clause 76: Annual report
Subclause 76(1) requires the Ombudsman to produce a report for the Minister at the end of
every financial year (for presentation to Parliament) concerning the operation of the Bill.
Subclause 76(2) sets out matters that the report must include. These are:
in relation to each agency, the number of disclosures received during the year, the kinds
of conduct to which the disclosures relate, the number of disclosure investigations
conducted and the actions taken in response to recommendations resulting from
disclosure investigations;
a statement on the number and nature of complaints made to the Ombudsman about
the conduct of agencies in relation to public interest disclosures;
information about the Ombudsman's performance of its functions under clause 62; and
34
information about the IGIS's performance of its functions under clause 63.
Subclause 76(3) requires the principal officer of an agency to give the Ombudsman information
and assistance which the Ombudsman requires to prepare a report under this clause. This
provision recognises that the Ombudsman will be reliant on agencies to provide the
information required by 76(2)(a). Subclause 74(1)(d) allows the Ombudsman to determine
standards in this regard.
Subclause 76(4) clarifies that the principal officer of an agency may delete sensitive information
from a document provided to the Ombudsman under 76(3).
Subclause 76(5) provides that an annual report prepared under this clause can be included in a
report made under section 19 of the Ombudsman Act 1976. Section 19 of the Ombudsman Act
requires the Ombudsman to produce each year a report on the operations of the Ombudsman.
Clause 77: Delegations
Subclause 77(1) provides that the principal officer of an agency (other than the IGIS or the
Ombudsman) may delegate, in writing, any or all of his or her functions or powers under the Bill
to a public official who belongs to the agency.
Subclause 77(2) provides that the Ombudsman may delegate, in writing, any or all of his or her
functions under the Bill to a Deputy Ombudsman or a member of staff mentioned in section 31
of the Ombudsman Act.
Subclause 77(3) provides that the IGIS may delegate, in writing, any or all of his or her functions
under the Bill to a member of staff mentioned in section 32 of the Inspector-General of
Intelligence and Security Act 1986.
Clause 78: Liability for acts and omissions
This clause provides that the principal officer of an agency (or a delegate) or an authorised
officer is not liable to any criminal or civil proceedings, any disciplinary action or sanction for
actions undertaken in good faith in the performance, or the purported performance of any
function or the exercise, or purported exercise, of any power conferred on the person by the
Bill. The clause does not apply to a breach of a designated publication restriction (defined in
clause 40).
This clause does not affect any rights conferred by the Administrative (Judicial Review) Act 1977
regarding a decision made under the Bill or any other rights to seek a review by a court or
tribunal in relation to a decision made, conduct engaged in for the purposes of making a
decision or a failure to make a decision.
Clause 79: Concurrent operation of State and Territory laws etc.
This clause provides that the Bill is not intended to exclude or limit the operation of a law of a
State or Territory that is capable of operating concurrently with the Bill. The intention is that
public interest disclosure legislation in the States and Territories be capable of operating
concurrently with this Bill.
Clause 80: Law relating to legal professional privilege not affected
This clause clarifies that the law relating to legal professional privilege is not affected by the Bill.
35
Clause 81: Law relating to parliamentary privilege not affected
This clause provides that the Bill does not affect the powers, privileges or immunities of the
House of Representatives, the Senate, as well as the members of each House of Parliament and
committees of each House of Parliament under section 49 of the Constitution. The powers,
privileges and immunities under the Parliamentary Privileges Act 1987 are also not affected.
Clause 82: Other investigative powers or obligations not affected
The purpose of this clause is to emphasise that the Bill does not limit the investigative powers
conferred on an agency or a public official by a law of the Commonwealth other than the Bill;
nor does the Bill detract from obligations imposed on an agency or a public official by a law of
the Commonwealth.
Investigate agencies have special powers to investigate matters within their jurisdiction. The
legislation providing these powers generally also places a range of obligations on those
agencies in relation to the exercise of powers. The purpose of this clause is to make clear that
these powers and obligation are not affected by the Bill.
For example, the Law Enforcement Integrity Commissioner Act 2006 places obligations on the
heads of agencies within the Integrity Commissioner's jurisdiction to report allegations of
corruption within their agency to the Integrity Commissioner. The head of an agency within the
Integrity Commissioner's jurisdiction may receive a public interest disclosure that is also an
allegation of corrupt conduct. This clause makes clear that notwithstanding anything in the Bill,
the obligations imposed by the Law Enforcement Integrity Commissioner Act will apply to this
disclosure.
Clause 83: The PID rules
This clause provides that the Minister may, by legislative instrument, make rules prescribing
matters required or permitted by the Bill to be prescribed; or necessary or convenient to be
prescribed for carrying out or giving effect to the Bill.
36