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Public Interest Disclosures Bill 2007 [2008]

Part 3 Protection

   

17   Immunity for public interest disclosures

             (1)  A public official who makes a public interest disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the disclosure.

             (2)  Without limiting subsection (1), a public official who makes a public interest disclosure:

                     (a)  subject to section 25, has a defence of absolute privilege in a proceeding for defamation arising from any publication of information contained in the disclosure; and

                     (b)  does not commit an offence under a provision of any other Act that imposes a duty to maintain confidentiality with respect to the matter or any other restriction on the disclosure of the information; and

                     (c)  does not breach an obligation, by way of oath or rule of law or practice or under an agreement, requiring the person to maintain confidentiality or otherwise restricting the disclosure of information with respect to the matter; and

                     (d)  is not, for doing so, liable:

                              (i)  to any disciplinary action under a written law or code of conduct; or

                             (ii)  to be dismissed; or

                            (iii)  to have his or her employment dispensed with or otherwise terminated.

18   Reprisal an offence

             (1)  A person must not take, or threaten to take detrimental action against any other person because a public official has made, or may make, a public interest disclosure.

Penalty:  120 penalty units or imprisonment for 2 years.

             (2)  A person is guilty of an offence against this section only if the fact that a public official had made, or might make, a public interest disclosure is materially significant to the taking of the detrimental action, notwithstanding that there may have also been other grounds for taking the action.

             (3)  Proceedings for an offence against this section may be brought by:

                     (a)  the Director of Public Prosecutions; or

                     (b)  the Australian Federal Police; or

                     (c)  a proper authority who has investigated the public interest disclosure to which the alleged offence relates; or

                     (d)  the agency head who employs, or employed, the public official who made the public interest disclosure to which the alleged offence relates; or

                     (e)  if the victim of the alleged offence is an Australian Public Service employee—the Public Service Commissioner; or

                      (f)  the Ombudsman; or

                     (g)  the victim of the alleged offence.

             (4)  Proceedings for an offence against this section must be brought within 2 years of the occurrence of the alleged offence.

19   Criminal Code to apply

                   Division 11 of the Criminal Code applies to all offences in this Part.

Note:          Division 11 of the Criminal Code extends criminal liability to those who, for instance, attempt to commit an offence of inciting others to commit an offence.

20   Remedies for detrimental action—employment appeals

             (1)  This section applies to a public official who, under an Act, may appeal against, or apply for a review of, any of the following actions:

                     (a)  disciplinary action taken against the official;

                     (b)  the appointment or transfer of the official or another public official to a position as a public official; or

                     (c)  unfair treatment of the official.

             (2)  Whether or not an Act specifies grounds for the appeal or application, the official may also appeal or apply to have the action set aside because it was detrimental action taken in relation to a public interest disclosure.

             (3)  Subsection (2) applies even if the decision on the hearing of the appeal or application is in the form of a recommendation.

21   Remedies for detrimental action—civil liability

             (1)  If a person (the defendant ), whether intentionally or otherwise:

                     (a)  takes or threatens to take detrimental action against another person (the claimant ) because a public official has made or may make a public interest disclosure; or

                     (b)  fails to take action in fulfilment of a duty, under this or any other Act, to protect another person (the claimant ) from detrimental action because a public official has made or may make a public interest disclosure; and

                     (c)  the claimant suffers loss or damage (whether economic or non-economic) as a result of the actual or threatened action, or the failure;

the claimant may recover the amount of loss or damage by proceedings against the defendant.

             (2)  A person is liable under subparagraph (1)(a)(i) only if the fact that a public official had made, or might make, a public interest disclosure was a ground of any significance in the taking of the detrimental action, notwithstanding that there also may have been other grounds for the taking of the action.

             (3)  In proceedings pursuant to subparagraph (1)(a)(ii), it is a defence for the defendant to prove that he or she:

                     (a)  was not knowingly involved in the detrimental action; and

                     (b)  did not know and could not reasonably have been expected to know about the detrimental action; and

                     (c)  could not, by the exercise of reasonable care, have prevented, stopped, reversed or minimised the detrimental action.

             (4)  Proceedings for loss or damage under this section may also be brought by a proper authority, with the consent of the claimant.

             (5)  If an application for compensation is brought by a proper authority, the authority is not required to give undertakings as to damages or costs, and unless exceptional circumstances apply, must not be required to pay the defendant’s costs.

             (6)  Proceedings under this section must be commenced within 6 years after the day on which the cause of action arose.

             (7)  In proceedings under this section, a finding of fact or guilt made by a court in proceedings for an offence under section 18 is prima facie evidence of detrimental action.

22   Remedies for detrimental action—forum and quantum

             (1)  If proceedings pursuant to section 21 arise between a claimant who is an employee or a former employee, and a defendant who is or was the claimant’s employer, the proceedings may be taken in either:

                     (a)  the Australian Industrial Relations Commission, as if hearing an application for relief under section 643 of the Workplace Relations Act 1996 but without limitation as to the type of detrimental action suffered; or

                     (b)  the Federal Court or the Federal Magistrates Court, as if hearing an application for a civil remedy under section 320 or 413 of the Workplace Relations Act 1996 but without limitation as to the circumstances giving rise to the proceedings.

             (2)  If proceedings pursuant to section 21 arise between any other persons, the proceedings may be taken in either:

                     (a)  the Human Rights and Equal Opportunity Commission, or the Federal Court, or the Federal Magistrates Court, as if hearing a complaint of unlawful discrimination under Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 but without limitation as to the type of detrimental action suffered; or

                     (b)  any other federal or State court of competent jurisdiction.

             (3)  Irrespective of forum, the commission, tribunal or court hearing the proceedings pursuant to section 21 may award such compensation for loss and damage as it sees fit, including exemplary damages, without limit as to quantum.

23   Injunctions

             (1)  If a person (the defendant ) has taken, takes or proposes to take detrimental action against another person (the claimant ) because or substantially because a public official has made or may make a public interest disclosure, the claimant may apply to the Federal Court or the Federal Magistrates Court for:

                     (a)  an injunction restraining the person from taking the action; or

                     (b)  if the defendant is a Commonwealth officer, a writ of certiorari, mandamus or prohibition to prevent the detrimental action.

             (2)  In response to an application under subsection (1), the Federal Court or the Federal Magistrates Court may make such orders and grant such injunctive relief as it sees fit.

             (3)  An application for injunctive relief under this section may also be brought by a proper authority, with the consent of the claimant.

             (4)  If an application for injunctive relief is brought by a proper authority, the authority is not required to give undertakings as to damages or costs, and unless exceptional circumstances apply, must not be required to pay the defendant’s costs.

24   Liability of person disclosing unaffected

                   Notwithstanding section 17, a public interest disclosure by a public official does not affect that public official’s own liability for:

                     (a)  any matter to which the information relates, including his or her own misconduct; and

                     (b)  any contravention of this Act, including, without reasonable or lawful excuse:

                              (i)  breaches of confidentiality; or

                             (ii)  breaches of lawful directions regarding the conduct of an investigation, including the maintaining of secrecy and the provision of further information.

25   Loss of protection

                   Nothing in this Part applies, or continues to apply, to any public interest disclosure which the public official making the disclosure knows to contain false or misleading information.