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Public Interest Disclosures Bill 2007 [2008]

Part 4 Obligations of Agency Heads, Ombudsman and Public Service Commissioner

26   Internal disclosure procedures

             (1)  The Ombudsman must, within one year of the commencement of this Act, publish model internal disclosure procedures (the model procedures ) to guide proper authorities and Commonwealth agencies in the administration of this Act.

             (2)  The Ombudsman must consult the Public Service Commissioner when developing or revising the model procedures.

             (3)  Agency heads must, within two years of the commencement of this Act, publish internal disclosure procedures consistent with the model procedures.

             (4)  The internal disclosure procedures under subsection (3) must set out:

                     (a)  why public interest disclosures are important to the agency;

                     (b)  who is entitled to make public interest disclosures within, about or in respect of the agency;

                     (c)  who are proper authorities for receiving public interest disclosures about the agency, and how they may be contacted;

                     (d)  how public interest disclosures are to be managed and investigated within the agency;

                     (e)  procedures to meet the confidentiality requirements of this Act;

                      (f)  how the risk of detrimental action against public officials who make public interest disclosures is to be assessed and managed;

                     (g)  who is responsible for informing agency employees of their entitlements and obligations under this Act;

                     (h)  who is responsible for providing support, guidance and protection to agency employees who make public interest disclosures under this Act; and

                      (i)  how the effective implementation of the procedures will be monitored and assessed.

             (5)  Agency heads must, within two years of the commencement of this Act, designate a specific officer within the agency as having responsibility for coordinating the receipt, investigation, notification and referral of public interest disclosures relating to the agency.

             (6)  The officer designated for the purposes of subsection (5) is a proper authority pursuant to paragraph 8(2)(b) of this Act.

             (7)  Any agency, including any proper authority, who has a responsibility to prepare an annual report must include in their annual report information describing:

                     (a)  the number of public interest disclosures received by the agency over the reporting period; and

                     (b)  the number of public interest disclosures investigated over the reporting period and wholly or partly substantiated; and

                     (c)  the results of actions taken over the reporting period as a result of investigations.

27   Protection of employees

             (1)  Agency heads must take reasonable steps to protect from detrimental action, or the threat of detrimental action, any employee of the agency who makes a public interest disclosure.

             (2)  As soon as practicable after the agency head becomes aware of a public interest disclosure relating to it, the agency head must ensure an assessment is made of the risks that detrimental action will be taken against any employee in relation to the disclosure.

             (3)  If the agency head is the proper authority who received or is investigating the disclosure, the risk assessment made under section 12 satisfies the requirement under subsection (2).

             (4)  The agency head must ensure that all actions by the agency under this Act have due regard to the risk assessment made under subsection (2), and any similar later assessments.

             (5)  If an employee of an agency, or a person directly or indirectly responsible for supervising an employee, considers that:

                     (a)  it is likely that detrimental action will be taken against the employee; and

                     (b)  relocation of the employee to an alternative position provides the only way to remove or reduce the risk of detrimental action;

an agency head must, with the consent of the employee, do everything necessary and possible to relocate the employee.

             (6)  At the earliest practicable time after the agency head becomes aware, a proper authority or the agency head must notify the Ombudsman of:

                     (a)  any information, complaint or allegation that a person may have suffered detrimental action because of a public interest disclosure; and

                     (b)  details of any risk assessments made by or for the proper authority under section 12 or the agency head under subsection (2); and

                     (c)  advice on how the proper authority or the agency head intends to investigate or remedy the alleged detrimental action.

28   Responsibilities of the Ombudsman—disclosures

             (1)  The Ombudsman must, within a year of the commencement of this Act, publish a protocol setting out when and how proper authorities are to notify the Ombudsman of public interest disclosures pursuant to subsections 11(7) and (8).

             (2)  The Ombudsman may review any decision of a proper authority not to investigate a disclosure under subsection 11(6), and as a result may:

                     (a)  affirm the decision that some or all of the disclosure will not be investigated; or

                     (b)  reverse or vary the decision, so as to:

                              (i)  require the proper authority to investigate the disclosure; or

                             (ii)  refer the disclosure to another proper authority to investigate; or

                            (iii)  investigate the disclosure as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint.

             (3)  The Ombudsman may review any decision of a proper authority to investigate a disclosure notified to him or her pursuant to subsection 11(8), and as a result may:

                     (a)  affirm the decision that some or all of the disclosure will be investigated by the proper authority; or

                     (b)  reverse or vary the decision, so as to:

                              (i)  require the proper authority to cease investigating the disclosure; or

                             (ii)  refer the disclosure to another proper authority to investigate; or

                            (iii)  investigate the disclosure as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint were it not for this Act.

             (4)  The Ombudsman may review the outcome of any investigation by a proper authority notified to him or her pursuant to subsection 11(8), and as a result may:

                     (a)  affirm the outcome of the investigation; or

                     (b)  recommend that the matter be further investigated; or

                     (c)  refer the disclosure to another proper authority to be further investigated; or

                     (d)  further investigate the disclosure as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint were it not for this Act.

             (5)  In reviewing a decision of a proper authority under subsection (2) or (3) or the outcome of an investigation under subsection (4), the Ombudsman may make directions or recommendations in relation to:

                     (a)  how a proper authority should investigate a matter; and

                     (b)  whether the Ombudsman should oversee or supervise an investigation, or conduct a joint investigation; and

                     (c)  the date by which an investigation should be completed; and

                     (d)  any measures that should be taken to protect any person or to prevent detrimental action in the course of an investigation.

             (6)  Subsections (2), (3), (4) and (5) do not apply to decisions about an investigation or the outcome of an investigation of a disclosure that is made or referred to a proper authority under paragraph 8(3)(i) or 8(3)(j).

Note:          This subsection means that the Ombudsman cannot reverse or vary any decision to investigate or not to investigate a disclosure, or review the outcome any investigation that concerns a member of Parliament or a judicial officer, and is confined to reporting the numbers of disclosures handled by the legislative and judicial branches in the annual report on the Act.

29   Responsibilities of the Ombudsman—reports

             (1)  After the end of each financial year, the Ombudsman must cause to be tabled in each house of the Parliament a report on:

                     (a)  the numbers and outcomes of investigations of public interest disclosures received by proper authorities under the Act; and

                     (b)  the numbers of decisions by proper authorities reviewed and varied by the Ombudsman under this section; and

                     (c)  levels of compliance with this Act; and

                     (d)  any other matter that the Ombudsman considers relevant to the operation of this Act.

             (2)  Agency heads must, at the end of each financial year, provide the Ombudsman with information concerning:

                     (a)  the number of public interest disclosures received by the agency over the reporting period; and

                     (b)  the number of public interest disclosures investigated and wholly or partly substantiated; and

                     (c)  the results of actions taken as a result of investigations; and

                     (d)  any other matters requested by the Ombudsman.

             (3)  The report prepared under subsection (1) must be prepared in accordance with guidelines approved by the Joint Committee of Public Accounts and Audit.

             (4)  In preparing a report under subsection (1), the Ombudsman:

                     (a)  must consult the Public Service Commissioner; and

                     (b)  must have regard to the reporting responsibility of the Public Service Commissioner under section 44 of the Public Service Act 1999 ; and

                     (c)  may enter into an arrangement with the Public Service Commissioner to report jointly on the administration of this Act in Australian Public Service agencies.

             (5)  The Ombudsman may at any time cause to be presented to the Parliament a report on any matter arising in connection with the exercise of his or her functions under this Act.

30   Detrimental action

             (1)  On notification under subsection 27(6) of any information that a person may have suffered detrimental action because of a public interest disclosure, the Ombudsman must:

                     (a)  review the information provided by the agency; and

                     (b)  subject to subsection (2), determine the most appropriate proper authority to investigate or remedy the alleged detrimental action, and refer it to that proper authority; or

                     (c)  investigate the information as if it were a complaint under the Ombudsman Act 1976, even if the Ombudsman would not otherwise have jurisdiction to investigate such a complaint were it not for this Act.

             (2)  If information that a person may have suffered detrimental action concerns an Australian Public Service employee, the Ombudsman must refer the matter to the Public Service Commissioner for inquiry under the Public Service Act 1999 . The Ombudsman must do so even if the Ombudsman also refers the matter to any other proper authority.

             (3)  Subsections 28(2) to (5) apply to the investigation of information that a person may have suffered detrimental action because of a public interest disclosure, including investigations by the Public Service Commissioner, in the same way that they apply to any other public interest disclosure.

             (4)  Subsections 27(6) and 28(2) to (5) and this section apply to information that a person may have suffered detrimental action because of a public interest disclosure, even if the disclosure was made or referred to a proper authority under paragraph 8(3)(i) or 8(3)(j).

Note:          This subsection means that the Ombudsman can review and act on cases of apparent reprisal arising from public interest disclosures involving the legislative and judicial branches, even though unable to review decisions and outcomes in relation to the original disclosure.

             (5)  If, after investigation by a proper authority (including the Public Service Commissioner) or after the Ombudsman’s own investigation:

                     (a)  the Ombudsman is satisfied there is a reasonable likelihood that a person has suffered detrimental action because of a public interest disclosure; and

                     (b)  no action has been taken by any other agency or person to remedy the detrimental action, including proceedings under section 18, 21 or 23;

the Ombudsman must take all reasonable steps to ensure that action is taken to remedy the detrimental action, including:

                     (c)  making a report under subsection 29(5); or

                     (d)  bringing criminal proceedings under paragraph 18(5)(f); or

                     (e)  bringing proceedings for loss or damage under subsection 21(6); or

                      (f)  bringing proceedings for injunctive relief under subsection 23(3).