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New South Wales Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Contents Page 1 Name of Act 2 2 Commencement 2 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 3 Schedule 2 Amendment of other Acts 20 b2010-003-20.d31 New South Wales Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 No , 2010 A Bill for An Act to amend the Protected Disclosures Act 1994 to make further provision for protecting public officials who make disclosures to which the Act applies; and for other purposes. Clause 1 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Protected Disclosures Amendment (Public Interest 3 Disclosures) Act 2010. 4 2 Commencement 5 This Act commences on a day or days to be appointed by proclamation. 6 Page 2 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 Schedule 1 Amendment of Protected Disclosures 1 Act 1994 No 92 2 [1] Section 1 Name of Act 3 Omit "Protected Disclosures Act 1994". 4 Insert instead "Public Interest Disclosures Act 1994". 5 [2] Section 3 Object of Act 6 Omit "corrupt conduct, maladministration and serious and substantial waste" 7 from section 3 (1). 8 Insert instead "corrupt conduct, maladministration, serious and substantial 9 waste and government information contravention". 10 [3] Section 4 Definitions 11 Omit the definition of disciplinary proceeding. 12 [4] Section 4, definition of "government information contravention" 13 Insert in alphabetical order: 14 government information contravention means conduct of a kind 15 that constitutes a failure to exercise functions in accordance with 16 any provision of the Government Information (Public Access) 17 Act 2009. 18 [5] Section 4, definition of "investigating authority" 19 Omit paragraph (f). Insert instead: 20 (f) the local government investigating authority, or 21 [6] Section 4, definition of "local government investigating authority" 22 Insert in alphabetical order: 23 local government investigating authority means the 24 Director-General under section 429A (Complaints about 25 councils, councillors, delegates and staff) of the Local 26 Government Act 1993. 27 [7] Section 4, definition of "public authority" 28 Omit the definition. Insert instead: 29 public authority means any public authority whose conduct or 30 activities may be investigated by an investigating authority, and 31 includes (without limitation) each of the following: 32 (a) a Division of the Government Service, 33 Page 3 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 (b) a State owned corporation and any subsidiary of a State 1 owned corporation, 2 (c) a local government authority, 3 (d) the Police Force, PIC and PIC Inspector. 4 [8] Section 4, definition of "public official" 5 Omit the definition. Insert instead: 6 public official--see section 4A. 7 [9] Section 4, definition of "relevant investigation Act" 8 Omit the definition. Insert instead: 9 relevant investigation Act means: 10 (a) in relation to an investigating authority other than the local 11 government investigating authority--the Act that appoints 12 or constitutes the investigating authority, and 13 (b) in relation to the local government investigating 14 authority--the Local Government Act 1993. 15 [10] Section 4, definition of "Steering Committee" 16 Insert in alphabetical order: 17 Steering Committee means the Public Interest Disclosures 18 Steering Committee established by section 6A. 19 [11] Section 4 (2) 20 Insert at the end of section 4: 21 (2) Notes included in this Act do not form part of this Act. 22 [12] Section 4A 23 Insert after section 4: 24 4A Public officials 25 (1) In this Act, public official means an individual who is an 26 employee of or otherwise in the service of a public authority, and 27 includes (without limitation) each of the following: 28 (a) a person employed under the Public Sector Employment 29 and Management Act 2002, 30 (b) a member of Parliament, 31 (c) a person employed by either or both of the President of the 32 Legislative Council or the Speaker of the Legislative 33 Assembly, 34 Page 4 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 (d) any other individual having public official functions or 1 acting in a public official capacity whose conduct and 2 activities may be investigated by an investigating 3 authority, 4 (e) an individual in the service of the Crown, 5 (f) an individual who is engaged by a public authority under a 6 contract to provide services to or on behalf of the public 7 authority (referred to in this section as an independent 8 contractor to the public authority). 9 (2) An individual who is a public official because he or she is an 10 independent contractor to the public authority is taken to belong 11 to the public authority for the purposes of this Act. 12 [13] Sections 6A-6D 13 Insert after section 6: 14 6A Steering Committee 15 (1) There is established by this Act a Public Interest Disclosures 16 Steering Committee consisting of the following members: 17 (a) the Ombudsman, who is to be the chairperson of the 18 Steering Committee, 19 (b) the Director-General of the Department of Premier and 20 Cabinet, 21 (c) the Auditor-General, 22 (d) the Commissioner for the Independent Commission 23 Against Corruption, 24 (e) the Commissioner for the PIC, 25 (f) the local government investigating authority, 26 (g) the Commissioner of Police, 27 (h) such other members as may be prescribed by the 28 regulations. 29 (2) The functions of the Steering Committee are: 30 (a) to provide advice to the Minister on the operation of this 31 Act and recommendations for reform, and 32 (b) to receive, consider and provide advice to the Minister on 33 any reports provided by the Ombudsman in the exercise of 34 functions under section 6B or as referred to in section 31A. 35 (3) A member of the Steering Committee may appoint a nominee to 36 act in the place of the member (either generally or for a particular 37 Page 5 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 purpose) and may revoke any such appointment. While acting in 1 the place of a member, the member's nominee has all the 2 functions of the member (including the functions of chairperson 3 in the case of the Ombudsman's nominee) and is taken to be a 4 member. 5 (4) The quorum for a meeting of the Steering Committee is 6 3 members of the Committee of whom 2 must be the 7 Ombudsman and the Director-General of the Department of 8 Premier and Cabinet (or their nominees). 9 (5) The Steering Committee is to determine its own procedures. 10 (6) The Ombudsman (as chairperson of the Steering Committee) is 11 to prepare an annual report of the Steering Committee's activities 12 and any recommendations made to the Minister during the 13 reporting period of 12 months ending on 30 June in each year. 14 (7) The annual report is to be prepared and provided to the Minister 15 as soon as practicable after the end of the reporting period and is 16 to be tabled by the Minister in each House of Parliament as soon 17 as practicable after the Minister receives it. 18 6B Oversight of Act by Ombudsman 19 (1) The Ombudsman has the following functions in connection with 20 the operation of this Act: 21 (a) to promote public awareness and understanding of this Act 22 and to promote the object of this Act, 23 (b) to provide information, advice, assistance and training to 24 public authorities, investigating authorities and public 25 officials on any matters relevant to this Act, 26 (c) to issue guidelines and other publications for the assistance 27 of public authorities and investigating authorities in 28 connection with their functions under this Act, 29 (d) to issue guidelines and other publications for the assistance 30 of public officials in connection with the protections 31 afforded to them under this Act, 32 (e) to monitor and provide reports (monitoring reports) to 33 Parliament on the exercise of functions under this Act and 34 compliance with this Act by public authorities (other than 35 investigating authorities), 36 (f) to audit and provide reports (audit reports) to Parliament 37 on the exercise of functions under this Act and compliance 38 with this Act by public authorities (other than investigating 39 authorities), 40 Page 6 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 (g) to provide reports and recommendations to the Minister 1 about proposals for legislative and administrative changes 2 to further the object of this Act. 3 Note. The Ombudsman is also chairperson of the Steering Committee. 4 (2) A monitoring report is to be provided once every 12 months. An 5 audit report is to be provided whenever the Ombudsman 6 considers it desirable to do so and at least once every 12 months. 7 (3) The Ombudsman must, as soon as practicable after 30 June in 8 each year, prepare and provide a report to Parliament on the 9 Ombudsman's activities under this section for the preceding 10 12 months. 11 (4) A report to Parliament under this section can be provided by 12 being included in the Ombudsman's annual report under 13 section 30 of the Ombudsman Act 1974 or can be provided as a 14 separate report and provided to the Presiding Officer of each 15 House of Parliament. 16 (5) Section 31AA of the Ombudsman Act 1974 applies to a report to 17 Parliament under this section as if the report were a report made 18 or furnished under Part 4 of that Act. 19 6C Provision of information to Ombudsman for audit purposes 20 (1) For the purposes of an audit under section 6B, the Ombudsman 21 may require the principal officer of or who constitutes a public 22 authority: 23 (a) to give the Ombudsman a statement of information, or 24 (b) to produce to the Ombudsman any document or other thing 25 under the person's control, or the production of which the 26 person may, in an official capacity, reasonably require, or 27 (c) to give the Ombudsman a copy of any such document. 28 (2) A requirement under this section must be in writing, must specify 29 or describe the information, document or thing required, and 30 must fix a time and specify a place for compliance. 31 (3) It is the duty of the principal officer of or who constitutes a public 32 authority to comply with any requirement of the Ombudsman 33 under this section. 34 (4) A provision of any Act or law that prevents or restricts access to 35 records or disclosure of information (other than section 22 of this 36 Act) does not prevent a person from complying, or affect the 37 person's duty to comply, with a requirement of the Ombudsman 38 under this section. 39 Page 7 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 (5) Anything done by a person in compliance with a requirement of 1 the Ombudsman under this section: 2 (a) does not constitute a breach of professional etiquette or 3 ethics or a departure from accepted standards of 4 professional conduct, and 5 (b) does not give rise to any liability for defamation or other 6 civil liability. 7 6D Public interest disclosures policies and guidelines 8 (1) Each public authority must have a policy that provides for its 9 procedures for receiving, assessing and dealing with protected 10 disclosures. 11 (2) The Ombudsman may adopt guidelines for the procedures of 12 public authorities for receiving, assessing and dealing with 13 protected disclosures. The guidelines may include a model policy 14 that provides for those procedures. 15 (3) A public authority must have regard to (but is not bound by) the 16 Ombudsman's guidelines in formulating a policy for the 17 purposes of this section. 18 [14] Section 8 Disclosures must be made by public officials 19 Omit "corrupt conduct, maladministration or serious and substantial waste of 20 public money" from section 8 (1) (c). 21 Insert instead "corrupt conduct, maladministration, serious and substantial 22 waste of public money or government information contravention". 23 [15] Section 8 (1) (c1) 24 Insert after section 8 (1) (c): 25 (c1) to the Clerk of the Legislative Assembly, the Clerk of the 26 Parliaments or the Executive Manager of the Department 27 of Parliamentary Services, but only if the disclosure 28 concerns the conduct of a member of Parliament and only 29 if the disclosure is made in accordance with any official 30 procedure established for the reporting of allegations of 31 corrupt conduct, maladministration or serious and 32 substantial waste of public money by a member of 33 Parliament, or 34 Page 8 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 [16] Section 9 Disclosures must be made voluntarily 1 Omit "corrupt conduct, maladministration or serious and substantial waste of 2 public money" from section 9 (3). 3 Insert instead "corrupt conduct, maladministration, serious and substantial 4 waste of public money or government information contravention". 5 [17] Section 9A 6 Insert after section 9: 7 9A Presumptions about beliefs on which disclosures are based 8 (1) For the purposes of determining whether a disclosure by a public 9 official is protected by this Act, an assertion by the public official 10 as to what the public official believes in connection with the 11 disclosure is, in the absence of evidence to the contrary, evidence 12 of the belief asserted and that the belief is an honest belief. 13 (2) Such an assertion need not be express and can be inferred from 14 the nature or content of the disclosure. 15 [18] Sections 10, 11, 12, 12A, 12B, 12C, 13 and 14 16 Omit "that shows or tends to show" wherever occurring. 17 Insert instead "that the person making the disclosure honestly believes, on 18 reasonable grounds, shows or tends to show". 19 [19] Section 12B Disclosure concerning serious and substantial waste in 20 local government 21 Omit "Director-General of the Department of Local Government" from 22 section 12B (1). 23 Insert instead "local government investigating authority". 24 [20] Section 12D Disclosure to Information Commissioner 25 Omit section 12D (b). Insert instead: 26 (b) be disclosure of information that the person making the 27 disclosure honestly believes, on reasonable grounds, 28 shows or tends to show that a public authority or another 29 public official has engaged, is engaged or proposes to 30 engage in government information contravention. 31 Page 9 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 [21] Section 14 Disclosures to public officials 1 Omit "corrupt conduct, maladministration or serious and substantial waste of 2 public money" from section 14 (1) and (2) wherever occurring. 3 Insert instead "corrupt conduct, maladministration, serious and substantial 4 waste of public money or government information contravention". 5 [22] Section 14 (2) 6 Omit "corrupt conduct, maladministration or serious and substantial waste 7 (whether". 8 Insert instead "corrupt conduct, maladministration, serious and substantial 9 waste of public money or government information contravention (whether". 10 [23] Section 14 (2A) 11 Insert after section 14 (2): 12 (2A) To be protected by this Act, a disclosure by a public official to the 13 Clerk of the Legislative Assembly, the Clerk of the Parliaments 14 or the Executive Manager of the Department of Parliamentary 15 Services in accordance with any official procedure established 16 for the reporting of allegations of corrupt conduct, 17 maladministration or serious and substantial waste of public 18 money by a member of Parliament must be a disclosure of 19 information that the person making the disclosure honestly 20 believes, on reasonable grounds, shows or tends to show such 21 corrupt conduct, maladministration or serious and substantial 22 waste by a member of Parliament. 23 [24] Section 15 24 Omit the section. Insert instead: 25 15 Protection of misdirected disclosures 26 (1) A misdirected disclosure by a public official to an investigating 27 authority that the public official honestly believed (at the time the 28 disclosure was made) was the appropriate investigating authority 29 to deal with the matter is a protected disclosure if: 30 (a) the investigating authority (whether because it is not 31 authorised to investigate the matter under the relevant 32 investigation Act or otherwise) refers the disclosure under 33 Part 4 to another investigating authority or to a public 34 official or public authority, or 35 (b) the investigating authority could have referred the 36 disclosure under Part 4 but did not do so because it has 37 Page 10 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 power to investigate the matter concerned under the 1 relevant investigation Act. 2 (2) A misdirected disclosure is a disclosure that is not a protected 3 disclosure because it was not made to the appropriate 4 investigating authority (but that would have been a protected 5 disclosure had it been made to the appropriate investigating 6 authority). 7 [25] Section 16 Disclosures made on frivolous or other grounds 8 Omit the section. 9 [26] Section 20 Protection against reprisals 10 Omit the penalty from section 20 (1). Insert instead: 11 Maximum penalty: 100 penalty units or imprisonment for 12 2 years, or both. 13 [27] Section 20 (1B) and (1C) 14 Insert after section 20 (1A): 15 (1B) A public official who takes detrimental action against another 16 person that is substantially in reprisal for the other person making 17 a protected disclosure is guilty of engaging in conduct that 18 constitutes misconduct in the performance of his or her duties as 19 a public official and that justifies the taking of disciplinary action 20 against the public official, including disciplinary action provided 21 for: 22 (a) by or under an Act that regulates the employment or 23 service of the public official, or 24 (b) by or under a contract of employment or contract for 25 services that governs the employment or engagement of 26 the public official. 27 (1C) This section extends to a case where the person who takes the 28 detrimental action does so because the person believes or 29 suspects that the other person made or may have made a protected 30 disclosure even if the other person did not in fact make a 31 protected disclosure. 32 [28] Section 20 (4) 33 Insert after section 20 (3): 34 (4) An investigating authority or public authority must refer any 35 evidence of an offence under this section to the Director of Public 36 Page 11 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 Prosecutions or (if the alleged offence relates to conduct of the 1 Director of Public Prosecutions) the Attorney General. 2 [29] Sections 20A and 20B 3 Insert after section 20: 4 20A Compensation for reprisals 5 (1) A person who takes detrimental action against another person 6 that is substantially in reprisal for the other person making a 7 protected disclosure is liable in damages for any loss that the 8 other person suffers as a result of that detrimental action. 9 (2) This section extends to a case where the person who takes the 10 detrimental action does so because the person believes or 11 suspects that the other person made or may have made a protected 12 disclosure even if the other person did not in fact make a 13 protected disclosure. 14 (3) Damages recoverable under this section do not include 15 exemplary or punitive damages or damages in the nature of 16 aggravated damages. 17 (4) An entitlement to damages arising under this section does not 18 constitute redress in relation to detrimental action comprising 19 dismissal from employment, for the purposes of section 90 20 (Effect of availability of other remedies) of the Industrial 21 Relations Act 1996 or any other law. 22 20B Injunctions to prevent reprisals 23 (1) An investigating authority, or any other public authority with the 24 approval of the Attorney General, may apply to the Supreme 25 Court for an injunction to prevent a contravention of section 20 26 (Protection against reprisals). 27 (2) The Supreme Court may, on application under this section, grant 28 an injunction restraining a person from engaging in conduct in 29 which the person has engaged, is engaged or is proposing to 30 engage and that constituted, constitutes or would constitute a 31 contravention of section 20, and, if in the opinion of the Supreme 32 Court it is desirable to do so, requiring that person to do any act 33 or thing to remedy such a contravention. 34 (3) The Court may grant an interim injunction pending determination 35 of an application under this section if the Court thinks it is 36 desirable to do so. 37 (4) The Court may discharge or vary an injunction granted under this 38 section. 39 Page 12 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 (5) The power of the Court to grant an injunction restraining a person 1 from engaging in conduct may be exercised: 2 (a) whether or not it appears to the Court that the person 3 intends to engage again, or to continue to engage, in 4 conduct of that kind, and 5 (b) whether or not the person has previously engaged in 6 conduct of that kind, and 7 (c) whether or not there is an imminent danger of substantial 8 damage to any person if the first-mentioned person 9 engages in conduct of that kind. 10 (6) The Court must not require an applicant for an injunction under 11 this section or any other person, as a condition of granting an 12 interim injunction, to give an undertaking as to damages. 13 [30] Section 22 Confidentiality guidelines 14 Omit section 22 (a). Insert instead: 15 (a) the person consents in writing to the disclosure of that 16 information, or it is generally known that the person has 17 made the protected disclosure as a result of the person 18 having voluntarily identified themselves (otherwise than 19 by making the protected disclosure) as the person who 20 made the protected disclosure, or 21 [31] Section 22 (2) 22 Insert at the end of section 22: 23 (2) As part of its procedures for receiving, assessing and dealing with 24 protected disclosures, a public authority must establish 25 procedures for ensuring that a public official who belongs to the 26 public authority maintains confidentiality in connection with a 27 protected disclosure made by the public official. 28 Note. These procedures are required to be the subject of a policy of the 29 public authority under section 6D. 30 [32] Section 25 Referral of disclosures by investigating authorities 31 Omit "corrupt conduct, maladministration or serious and substantial waste" 32 from section 25 (1). 33 Insert instead "corrupt conduct, maladministration, serious and substantial 34 waste or government information contravention". 35 Page 13 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 [33] Section 25 (8) 1 Insert after section 25 (7): 2 (8) A protected disclosure that is referred under this section remains 3 a protected disclosure after it is referred. 4 [34] Section 26 Referral of disclosures by public officials 5 Omit "corrupt conduct, maladministration or serious and substantial waste" 6 from section 26 (1). 7 Insert instead "corrupt conduct, maladministration, serious and substantial 8 waste or government information contravention". 9 [35] Section 26 (3) 10 Insert after section 26 (2): 11 (3) A protected disclosure that is referred under this section remains 12 a protected disclosure after it is referred. 13 [36] Section 26A 14 Insert after section 26: 15 26A Transitional disclosure procedure when public authority becomes 16 separate office within another public authority 17 (1) If a public authority becomes a separate office within another 18 public authority (the new public authority), a disclosure made to 19 the principal officer of the separate office during the transition 20 period is taken to have been made to the principal officer of the 21 new public authority. 22 (2) The transition period is the period beginning when the public 23 authority becomes a separate office within the new public 24 authority and ending when either of the following happens: 25 (a) a procedure is established by the new public authority that 26 provides for the reporting of allegations of corrupt 27 conduct, maladministration or serious and substantial 28 waste of public money by officers of the separate office, 29 (b) an existing procedure of the new public authority is varied 30 or confirmed to be applicable to the reporting of 31 allegations of corrupt conduct, maladministration or 32 serious and substantial waste of public money by officers 33 of the separate office. 34 (3) A public authority can be the new public authority under this 35 section even if the public authority is not newly created and even 36 if it is formed by the amalgamation of 2 or more existing public 37 Page 14 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 authorities that become separate offices of the new public 1 authority. 2 [37] Section 30 Regulations 3 Insert at the end of the section: 4 (2) The Minister must not recommend the making of a regulation 5 under this Act unless the Minister certifies that the Minister has 6 consulted with the Steering Committee concerning the making of 7 the regulation. 8 [38] Sections 31-31B 9 Insert after section 30: 10 31 Reports to Parliament by public authorities 11 (1) Each public authority must, within 4 months after the end of each 12 reporting year, prepare an annual report on the public authority's 13 obligations under this Act for submission to the Minister 14 responsible for the public authority. A copy of the report is to be 15 provided to the Ombudsman. 16 (2) An annual report under this section must be tabled in each House 17 of Parliament by the relevant Minister as soon as practicable after 18 it is prepared unless it is included in an annual report prepared for 19 the purposes of the Annual Reports (Departments) Act 1985 or 20 the Annual Reports (Statutory Bodies) Act 1984. 21 (3) The regulations may make provision for or with respect to: 22 (a) the information to be included in annual reports, and 23 (b) the form in which annual reports are to be prepared. 24 (4) In this section, a reference to the reporting year of a public 25 authority is a reference to: 26 (a) the financial year of the public authority for the purposes 27 of the Annual Reports (Departments) Act 1985 or the 28 Annual Reports (Statutory Bodies) Act 1984, or 29 (b) if the public authority does not have a financial year for the 30 purposes of either of those Acts, the year ending 30 June. 31 31A Special report by Ombudsman 32 (1) The power of the Ombudsman to make a special report under 33 section 31 (Special report to Parliament) of the Ombudsman Act 34 1974 extends to the making of a special report on any matter 35 arising in connection with the discharge of the Ombudsman's 36 functions under or in connection with the operation of this Act, 37 Page 15 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 including systemic or other problems identified by the 1 Ombudsman in connection with the operation of this Act. 2 (2) A special report can include proposals for legislative change. 3 Note. The requirements of the Ombudsman Act 1974 apply in respect of 4 a special report under section 31 of that Act on matters arising under this 5 Act. 6 31B Review of Commonwealth legislation 7 (1) The Steering Committee is to review any legislation of the 8 Commonwealth that is enacted in response to the 2009 report 9 Whistleblower protection: A comprehensive scheme for the 10 Commonwealth public sector of the House of Representatives 11 Standing Committee on Legal and Constitutional Affairs. 12 (2) The review is to be conducted within 6 months after the 13 enactment of the Commonwealth legislation (or within 6 months 14 after the commencement of this section if the Commonwealth 15 legislation is enacted before the commencement of this section). 16 (3) The Steering Committee is to provide the Minister with a report 17 on the outcome of the review and any recommendations for 18 reform of this Act arising from the review. 19 (4) A copy of the Steering Committee's report is to be tabled in each 20 House of Parliament as soon as practicable after the report is 21 provided to the Minister. 22 [39] Section 32 23 Omit the section. Insert instead: 24 32 Review of Act 25 (1) A joint committee of members of Parliament is to review this Act 26 to determine whether the policy objectives of the Act remain 27 valid and whether the terms of the Act remain appropriate for 28 securing those objectives. 29 (2) Without limiting subsection (1), the review is to consider: 30 (a) the effectiveness of the amendments made by the 31 Protected Disclosures Amendment (Public Interest 32 Disclosures) Act 2010, in particular the amendments 33 providing for the role of the Steering Committee and the 34 Ombudsman, and 35 (b) whether the structures in place to support the operation of 36 the protected disclosures scheme remain appropriate, and 37 Page 16 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 (c) the need for further review of the Act after the review 1 under this section. 2 (3) The joint committee is to consult on the review with each of the 3 members of the Steering Committee and the members of the 4 Steering Committee may assist the joint committee on the review 5 and provide advice in connection with the review. 6 (4) The review is to be undertaken as soon as possible after the period 7 of 5 years from the date of assent to the Protected Disclosures 8 Amendment (Public Interest Disclosures) Act 2010. 9 (5) A report on the outcome of the review is to be provided to the 10 Minister administering this Act and tabled in each House of 11 Parliament within 12 months after the end of the period of 12 5 years. 13 [40] Schedule 2 Savings, transitional and other provisions 14 Insert at the end of clause 1 (1): 15 Protected Disclosures Amendment (Public Interest Disclosures) 16 Act 2010 17 [41] Schedule 2, Part 3 18 Insert after Part 2: 19 Part 3 Provisions consequent on enactment of 20 Protected Disclosures Amendment (Public 21 Interest Disclosures) Act 2010 22 7 Definition 23 In this Part: 24 amending Act means the Protected Disclosures Amendment 25 (Public Interest Disclosures) Act 2010. 26 8 Amended definition of "public official" 27 This Act extends to a disclosure of information made by a person 28 who becomes a public official for the purposes of this Act 29 because of the amendment by the amending Act of the definition 30 of public official (being a disclosure made after the 31 commencement of the amendment) even if the disclosure relates 32 to conduct or activities engaged in, or matters arising, before the 33 commencement of the amendment. 34 Page 17 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 1 Amendment of Protected Disclosures Act 1994 No 92 9 Public interest disclosures policies 1 A public authority is not required to have a policy under 2 section 6D until 3 months after the commencement of that 3 section. 4 10 Frivolous or vexatious disclosures 5 A disclosure that is not protected by this Act because of the 6 operation of section 16 (Disclosures made on frivolous or other 7 grounds) before the repeal of that section by the amending Act 8 continues to be a disclosure that is not protected by this Act 9 despite the repeal of that section. 10 11 Protection against reprisals 11 (1) The amendment made by the amending Act to the maximum 12 penalty for an offence under section 20 (1) does not apply to an 13 offence committed before the commencement of the amendment. 14 (2) Section 20 (1B) does not apply in respect of detrimental action 15 taken before the commencement of that subsection but does 16 apply to detrimental action taken after that commencement in 17 respect of a protected disclosure made before that 18 commencement. 19 (3) Section 20 (4) does not apply to evidence of an offence 20 committed before the commencement of that subsection. 21 12 Compensation for reprisals 22 Section 20A does not apply in respect of detrimental action taken 23 against a person before the commencement of that section. 24 13 Injunctions to prevent reprisals 25 Section 20B extends to conduct that occurs before the 26 commencement of that section but not so as to authorise the grant 27 of an injunction requiring a person to do any act or thing to 28 remedy a contravention occurring before the commencement of 29 that section. 30 14 Confidentiality 31 The amendment of section 22 (a) by the amending Act extends to 32 the voluntary and public identification of a person occurring 33 before the commencement of that amendment and to a protected 34 disclosure made before that commencement. 35 Page 18 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of Protected Disclosures Act 1994 No 92 Schedule 1 15 Transitional disclosure procedure when public authority becomes 1 separate office within another public authority 2 Section 26A extends to a disclosure made before the 3 commencement of that section (when a public authority becomes 4 a separate office within another public authority before that 5 commencement) but only if the transition period referred to in 6 that section ends after the commencement of the section. 7 16 Local government investigating authority 8 (1) For the purposes of this Act, a reference in Division 1 of Part 5 of 9 Chapter 13 of the Local Government Act 1993 to the 10 Director-General is to be construed as a reference to the Chief 11 Executive, Local Government, in the Department of Premier and 12 Cabinet, until an administrative changes order made after the 13 commencement of this clause under Part 4.2 of the Public Sector 14 Employment and Management Act 2002 provides otherwise. 15 (2) A disclosure made by a public official on or after 1 July 2009 and 16 before the commencement of this clause to the Deputy 17 Director-General (Local Government) of the Department of 18 Premier and Cabinet or the Chief Executive, Local Government, 19 in the Department of Premier and Cabinet, that would be 20 protected by this Act had the disclosure been made to the 21 Director-General of the Department of Premier and Cabinet is 22 taken to have been made to the Director-General of that 23 Department. 24 Note. 1 July 2009 is the date of commencement of the Public Sector 25 Employment and Management (Departmental Amalgamations) Order 26 2009. That order resulted in references to the Director-General of the 27 Department of Local Government being construed as references to the 28 Director-General of the Department of Premier and Cabinet. 29 [42] Long title 30 Omit "maladministration and waste". 31 Insert instead "maladministration, waste and government information 32 contravention". 33 Page 19 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 2 Amendment of other Acts Schedule 2 Amendment of other Acts 1 2.1 Defamation Act 2005 No 77 2 [1] Schedule 1 Additional publications to which absolute privilege applies 3 Omit "Protected Disclosures Act 1994" from the heading to item 26. 4 Insert instead "Public Interest Disclosures Act 1994". 5 [2] Schedule 1, item 26 (1) 6 Omit "a public official or public authority referred to in section 8 (1) (b) or (c) 7 of the Protected Disclosures Act 1994 of a disclosure made to the public 8 official or public authority". 9 Insert instead "a person or public authority referred to in section 8 (1) (b), (c) 10 or (c1) of the Public Interest Disclosures Act 1994 of a disclosure made to the 11 person or public authority". 12 2.2 Education (School Administrative and Support Staff) Act 13 1987 No 240 14 Section 29 Meaning of "misconduct" 15 Omit "Protected Disclosures Act 1994" from section 29 (1) (c). 16 Insert instead "Public Interest Disclosures Act 1994". 17 2.3 Government Information (Public Access) Act 2009 No 52 18 Schedule 1 Information for which there is conclusive presumption of 19 overriding public interest against disclosure 20 Omit "Protected Disclosures Act 1994--section 22 (Confidentiality 21 guideline)" from item 1. 22 Insert instead "Public Interest Disclosures Act 1994--section 22 23 (Confidentiality guidelines)". 24 2.4 Health Records and Information Privacy Act 2002 No 71 25 Sections 5 (3) (h) and 68 (3) 26 Omit "Protected Disclosures Act 1994" wherever occurring. 27 Insert instead "Public Interest Disclosures Act 1994". 28 Page 20 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of other Acts Schedule 2 2.5 Independent Commission Against Corruption Act 1988 1 No 35 2 Section 111D Complaints by public officials 3 Omit "Protected Disclosures Act 1994" from section 111D (1). 4 Insert instead "Public Interest Disclosures Act 1994". 5 2.6 Local Government Act 1993 No 30 6 Section 429A Complaints about councils, councillors, delegates and 7 staff 8 Omit "Protected Disclosures Act 1994" from section 429A (1). 9 Insert instead "Public Interest Disclosures Act 1994". 10 2.7 Major Events Act 2009 No 73 11 Section 6 Designation of responsible authority 12 Omit "Protected Disclosures Act 1994" from section 6 (b). 13 Insert instead "Public Interest Disclosures Act 1994". 14 2.8 Ombudsman Act 1974 No 68 15 Schedule 1 Excluded conduct of public authorities 16 Omit "Protected Disclosures Act 1994" from item 12 (c). 17 Insert instead "Public Interest Disclosures Act 1994". 18 2.9 Police Act 1990 No 47 19 Section 206 Protection against reprisals 20 Omit "Protected Disclosures Act 1994" from section 206 (2B) and (4) 21 wherever occurring. 22 Insert instead "Public Interest Disclosures Act 1994". 23 2.10 Police Integrity Commission Act 1996 No 28 24 Section 135 Complaints by public officials 25 Omit "Protected Disclosures Act 1994" from section 135 (1) and (2) wherever 26 occurring. 27 Insert instead "Public Interest Disclosures Act 1994". 28 Page 21 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Schedule 2 Amendment of other Acts 2.11 Privacy and Personal Information Protection Act 1998 1 No 133 2 Sections 4 (3) (e) and 62 (3) 3 Omit "Protected Disclosures Act 1994" wherever occurring. 4 Insert instead "Public Interest Disclosures Act 1994". 5 2.12 Public Finance and Audit Act 1983 No 152 6 Section 52C Definitions 7 Omit "Protected Disclosures Act 1994" from the definition of public official. 8 Insert instead "Public Interest Disclosures Act 1994". 9 2.13 Public Sector Employment and Management Act 2002 No 43 10 Section 43 Meaning of "misconduct" 11 Omit "Protected Disclosures Act 1994" from section 43 (1) (c). 12 Insert instead "Public Interest Disclosures Act 1994". 13 2.14 Road Transport (General) Act 2005 No 11 14 Section 116 Dismissal or other victimisation of employee or contractor 15 assisting with or reporting breaches 16 Omit "Protected Disclosures Act 1994" from section 116 (11). 17 Insert instead "Public Interest Disclosures Act 1994". 18 2.15 Teaching Service Act 1980 No 23 19 Section 93C Meaning of "misconduct" 20 Omit "Protected Disclosures Act 1994" from section 93C (1) (c). 21 Insert instead "Public Interest Disclosures Act 1994". 22 Page 22 Protected Disclosures Amendment (Public Interest Disclosures) Bill 2010 Amendment of other Acts Schedule 2 2.16 Technical and Further Education Commission Act 1990 1 No 118 2 Section 22E Meaning of "misconduct" 3 Omit "Protected Disclosures Act 1994" from section 22E (1) (c). 4 Insert instead "Public Interest Disclosures Act 1994". 5 Page 23
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