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Public Interest Disclosures Bill 2007 [2008]

Part 2 Public interest disclosures

Division 1 When a public interest disclosure is made

7   Public interest disclosures

             (1)  Any public official who discloses public interest information in accordance with this Part, makes a public interest disclosure.

             (2)  A public official who makes a public interest disclosure has the legal rights and protections afforded by Part 3 of this Act.

8   Disclosures to proper authorities

             (1)  Unless section 9 applies to a disclosure, a public official may only make a public interest disclosure to a proper authority.

             (2)  For the purposes of subsection (1), a proper authority is, in relation to any public interest disclosure:

                     (a)  any person who directly or indirectly supervises the public official in the performance of his or her public function; or

                     (b)  any officer of the public official’s agency who has the task of receiving or taking action on the type of information being disclosed; or

                     (c)  any agency with jurisdiction under Commonwealth legislation to investigate or otherwise deal with the information contained in the disclosure; or

                     (d)  the Ombudsman or Deputy Ombudsman appointed under the Ombudsman Act 1976, irrespective of whether the Ombudsman or Deputy Ombudsman would have jurisdiction to investigate the information were it not for this Act.

             (3)  For the purposes of subsection (1), a proper authority is also:

                     (a)  where the public interest information relates to a specific agency—the agency head; or

                     (b)  where the information relates to a possible criminal offence—a member of the Australian Federal Police; or

                     (c)  where the information relates to a Commonwealth law enforcement agency—the Australian Commission for Law Enforcement Integrity; or

                     (d)  where the information relates to a Commonwealth intelligence or security service—the Inspector-General of Intelligence and Security; or

                     (e)  where the information relates to the misuse of public resources—the Auditor-General; or

                      (f)  where the information relates to a member of the Australian Defence Force—the Defence Force Ombudsman; or

                     (g)  where the information relates to conduct contrary to the Australian Public Service Code of Conduct—the Public Service Commissioner; or

                     (h)  where the information relates to conduct contrary to the Parliamentary Service Code of Conduct—the Parliamentary Service Commissioner; or

                      (i)  where the information relates to a senator or a member of the House of Representatives—the President of the Senate or the Speaker of the House of Representatives, as the case requires; or

                      (j)  where the information relates to a judicial officer—the Chief Justice of the High Court of Australia, the Chief Justice of the Federal Court of Australia, the Chief Justice of the Family Court of Australia or the Chief Magistrate of the Federal Magistrates Court, as the case requires.

             (4)  If a proper authority establishes a procedure whereby a public official is permitted to disclose public interest information to a third party, including an independent contractor, for the purposes of subsections (2) and (3), then information disclosed to that third party will be taken to be a public interest disclosure as if made to the proper authority.

9   Disclosure to persons other than proper authorities

             (1)  A public official may make a public interest disclosure to a senator or member of the House of Representatives if:

                     (a)  under all the circumstances, it is reasonable for the public official to make the public interest disclosure; and

                     (b)  the disclosure has already been made to a proper authority under section 8, but has not been acted upon, to the knowledge of the public official, within 6 months of the disclosure; or

                     (c)  the disclosure has already been made to a proper authority under section 8, and acted upon, but it is reasonable for the public official to believe that the action was not adequate or appropriate; or

                     (d)  the disclosure concerns especially serious conduct, and exceptional circumstances exist to justify the public official making the disclosure.

             (2)  A public official may make a public interest disclosure to a journalist if:

                     (a)  the public official does not make the disclosure for purposes of personal gain; and

                     (b)  under all the circumstances, it is reasonable for the public official to make the public interest disclosure; and

                     (c)  the disclosure has already been made to a proper authority under section 8, or a senator or member of the House of Representatives under subsection (1), but has not been acted upon, to the knowledge of the public official, within 6 months of the disclosure; or

                     (d)  the disclosure has already been made to a proper authority under section 8 or a senator or member of the House of Representatives under subsection (1), and acted upon, but it is reasonable for the public official to believe that the action was not adequate or appropriate; or

                     (e)  the disclosure concerns especially serious conduct, and exceptional circumstances exist to justify the public official making the disclosure.

             (3)  For the purposes of this section, in determining whether it was reasonable for a public official to make a disclosure or to hold a belief relevant to the making of a disclosure, regard must be had to:

                     (a)  whether a competent public official with the same level of seniority and experience as the public official making the disclosure would have made the disclosure; and

                     (b)  the identity of the person to whom the disclosure was made; and

                     (c)  the seriousness of the conduct contained in the public interest information; and

                     (d)  whether the relevant conduct was continuing or likely to occur in the future; and

                     (e)  the substance of any action which a proper authority, a senator or a member of the House of Representatives has taken or might reasonably be expected to have taken with respect to a disclosure; and

                      (f)  any procedures relevant to the making, receipt or investigation of public interest disclosures, prescribed by regulation or published by a proper authority in accordance with this Act; and

                     (g)  whether the public official making the disclosure complied with any procedures prescribed by regulation or published by a proper authority in accordance with this Act.

             (4)  Determinations as to whether it is or was reasonable, under this section, for a public official to make a disclosure or hold a belief relevant to the making of a disclosure, are questions for a court, commission or tribunal to decide when determining the liabilities, rights or entitlements of any person or body under Part 3.

10   Disclosures remain disclosures in certain circumstances

             (1)  A public official who discloses public interest information under this Part, whose identity is not initially known to a proper authority, but whose identity subsequently becomes known to that or another proper authority, is to be taken as having always made a public interest disclosure.

Note:          This subsection means that an anonymous disclosure must be acted on in accordance with this Part, and attracts the protections in Part 3, notwithstanding that it is anonymous.

             (2)  If a public official provides further information relating to a public interest disclosure, the further information is protected by this Act as though it were a public interest disclosure.

             (3)  Subsection (2) applies regardless of:

                     (a)  whether the public official providing further information also made the initial public interest disclosure; and

                     (b)  whether the further information is provided voluntarily or in response to a request or requirement under this or any other Act.

             (4)  If a public official discloses public interest information to a person in an honest and reasonable belief that the person is a proper authority for the purposes of section 8, the public official will be taken as having made a public interest disclosure even if his or her belief is mistaken.

             (5)  A public interest disclosure may be made under this Act:

                     (a)  even though matters to which the disclosure relates occurred before the commencement of this Act; and

                     (b)  whether or not the person making the disclosure is able to identify any person whom the information concerns.

 



 

Division 2 Obligations of a proper authority to whom a disclosure is made

11   Obligation to carry out investigation

             (1)  A proper authority must investigate or cause to be investigated public interest information disclosed to it under this Act if the disclosure relates to:

                     (a)  the authority;

                     (b)  a public officer or a public sector contractor of the authority; or

                     (c)  a matter or person that the authority has a function or a power to investigate.

             (2)  If public interest information is disclosed to a proper authority under this Act, who is not a proper authority in relation to the information disclosed, the person must refer the information to a more appropriate proper authority.

             (3)  If public interest information is disclosed to a proper authority under paragraph 8(2)(a) who is not also a proper authority under paragraph 8(2)(b), the proper authority must refer the information to either:

                     (a)  a proper authority under paragraph 8(2)(b) within the same agency or body; or

                     (b)  another more appropriate proper authority.

             (4)  If public interest information is disclosed to a proper authority under this Act, but the authority considers than another proper authority would be more appropriate to investigate the information, the authority may refer the information to the more appropriate proper authority.

             (5)  If public interest information is referred to a proper authority under subsection (2), (3) or (4), this section applies to that proper authority.

             (6)  A proper authority may decline to investigate, or may discontinue the investigation of, a matter raised by a disclosure if the authority considers that:

                     (a)  the matter is trivial; or

                     (b)  the disclosure is vexatious; or

                     (c)  there is no reasonable prospect of obtaining sufficient evidence due to the nature of the matters alleged or the time that has elapsed since the occurrence of the matter; or

                     (d)  the matter has been or is being adequately investigated or otherwise dealt with by any person, including a court or tribunal, to whom the same or a like disclosure of public interest information has been made; or

                     (e)  the matter has been or would be more appropriately resolved by private legal action by a complainant; or

                      (f)  the disclosure does not contain public interest information under this Act, notwithstanding that it reasonably appeared to do so at the time the disclosure was made.

             (7)  If a proper authority declines to investigate or discontinues the investigation of a matter in accordance with subsection (6), the proper authority must immediately notify the Ombudsman of this decision.

             (8)  If a proper authority determines to investigate a matter contained in a public interest disclosure, the proper authority must notify the Ombudsman of the commencement of the investigation, the nature of the disclosure, and the subsequent results of the investigation, according to the procedure established by Ombudsman for this purpose under Part 4.

             (9)  If, having investigated a public interest disclosure, a proper authority determines that any public official or body may be, may have been, or may in the future be, involved in conduct contrary to the public interest, the proper authority must take appropriate action to:

                     (a)  prevent the conduct to which the disclosure relates from continuing or occurring in future; or

                     (b)  refer the matter to another proper authority, body or organisation having power to take further action; or

                     (c)  commence disciplinary or criminal action, or enable disciplinary or criminal proceedings to be commenced, against a person responsible for the conduct.

12   Risk assessment by proper authority

             (1)  A proper authority who receives a public interest disclosure must, at the earliest practicable time, make or cause to be made an assessment of the risks that detrimental action will be taken against any person as a result of the disclosure.

             (2)  A proper authority who investigates or refers a public interest disclosure must ensure that all actions by the authority under this Act have due regard to the risk assessment made under subsection (1) or any similar later assessments.

13   Proper authority to notify official of action taken

             (1)  If a proper authority receives a public interest disclosure and declines to investigate or discontinues the investigation of a matter under subsection 11(6), the authority must as soon as practicable notify the public official who made the disclosure of:

                     (a)  the decision not to investigate, or to discontinue the investigation; and

                     (b)  the reasons for the decision; and

                     (c)  the fact that this decision has been notified to the Ombudsman under subsection 11(7).

             (2)  If a proper authority decides to investigate any aspect of a public interest disclosure, the authority must, subject to section 14, not more than 3 months after receiving the disclosure, notify the public official who made the disclosure of the action taken or proposed to be taken in relation to the disclosure.

             (3)  A public official who makes a public interest disclosure may request a proper authority to provide a progress report on the action being taken in relation to the disclosure.

             (4)  If an investigation into a public interest disclosure is not complete, the proper authority investigating the disclosure must as soon as practicable provide a progress report in response to a request under subsection (3), unless in all the circumstances it is not reasonable to do so.

             (5)  If an investigation into a public interest disclosure is complete, the proper authority who investigated the disclosure must advise the public official who made the disclosure of:

                     (a)  the outcome of the investigation and any action the proper authority has taken or proposes to take as a result of the investigation; and

                     (b)  the reasons for taking the action that has been taken or that is proposed to be taken, or if no action is to be taken, the reasons for not taking any action.

             (6)  This section only applies if the identity of the public official who made the disclosure is known, or becomes known.

14   Limitation on information provided by proper authority

                   A proper authority must not, in a notification or report under section 13, give information that, in the authority’s opinion, would be likely to affect adversely:

                     (a)  any person’s safety;

                     (b)  the investigation of an offence or possible offence; or

                     (c)  necessary confidentiality about the existence or identity of any person who has provided information to the investigation other than the public official being given the information.

15   Confidentiality

             (1)  A person must not give information to any other person that might identify or tend to identify anyone as a public official who has made a public interest disclosure.

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

                     (a)  the public official who made the public interest disclosure consents to the giving of the information; or

                     (b)  the giving of the information is necessary in order to enable the matter to be investigated effectively; or

                     (c)  the giving of the information is necessary in order to enable the provision of support, protection or assistance (including legal or counselling assistance) to any person as a result of the disclosure; or

                     (d)  the information is authorised or required to be given by law, including in satisfaction of the rules of natural justice; or

                     (e)  the giving of the information was for official purposes and in the public interest; or

                      (f)  the public interest disclosure was made under section 9, and the identity of the public official is already in the public domain.

             (3)  A reasonable time before giving the information in the circumstances described in paragraph (2)(b), (c), (d) or (e), the person giving the information must take all reasonable steps to advise the public official whose identity is to be disclosed:

                     (a)  that the information is to be given; and

                     (b)  the reason that the information is being given.

             (4)  A person must not give information to any other person that might identify or tend to identify anyone as a person about whom a public interest disclosure has been made, or to whom it relates.

             (5)  Subsection (4) does not apply if:

                     (a)  the person about whom the public interest disclosure was made, or to whom it relates, consents to the giving of the information; or

                     (b)  the giving of the information is necessary in order to enable the matter to be investigated effectively; or

                     (c)  the giving of the information is necessary in order to enable the provision of support, protection or assistance (including legal or counselling assistance) to any person as a result of the disclosure; or

                     (d)  the information is authorised or required to be given by law; or

                     (e)  the giving of the information was for official purposes and in the public interest; or

                      (f)  the giving of the information is necessary for the purposes of action under section 11(8) or any other action arising from an investigation, including reports authorised by this or any other Act; or

                     (g)  there are reasonable grounds to believe that the information must be given to prevent or minimise the risk of injury to any person or damage to any property; or

                     (h)  the public interest disclosure was made under section 9 of the Act, and the identity of the person concerned is already in the public domain.

             (6)  If a person gives information contrary to this section, and the person is a public official, an agency head may impose sanctions against that official in accordance with section 15 of the Public Service Act 1999 , as though the official had breached the Australian Public Service Code of Conduct.

             (7)  If a person gives information contrary to this section, and the giving of the information causes detriment to or contributes to detrimental action under this Act, proceedings may be taken against the person for an offence under section 18 or for liability under section 21, or both.

16   Relationship with other Acts

             (1)  If a matter contained in a public interest disclosure also constitutes a complaint, allegation, matter or information under another Act, a proper authority must investigate or deal with the matter in accordance with that Act notwithstanding that it is also a public interest disclosure under this Act.

             (2)  If a proper authority has powers under another Act to investigate or otherwise deal with any matter contained in a public interest disclosure, the disclosure is to be taken as a complaint, allegation, matter or information to which those powers apply, notwithstanding that the disclosure may not have been expressly made under that Act.

             (3)  If a proper authority has powers or is subject to requirements under another Act in relation to the investigation of any matter contained in a public interest disclosure, the provisions of this Act are to be taken as also applying to the investigation of the disclosure, other than in the event of direct inconsistency, in which case the provisions of the other Act will prevail.

             (4)  If a proper authority declines to investigate, or discontinues the investigation of, a matter under this Act, nothing in this Act prevents a proper authority from investigating or otherwise dealing with the same matter under any other Act.