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Public Interest Disclosure (Whistleblower Protection) Bill 2012

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2010-11-12

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Public Interest Disclosure (Whistleblower Protection) Bill 2012

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Andrew Wilkie MP



Public Interest Disclosure (Whistleblower Protection) Bill 2012

 

 

OUTLINE

 

The Public Interest Disclosure (Whistleblower Protection) Bill 2012 aims to strengthen public integrity by encouraging and facilitating the disclosure of corruption, maladministration and other wrongdoing in the Commonwealth public sector. It does so by providing protection for public officials to make such disclosures.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1: Short Title

 

1.     This clause is a formal provision and specifies the short title of the Bill, once enacted, as the Public Interest Disclosure (Whistleblower Protection) Act 2012 .

 

Clause 2: Commencement

 

2.     This clause provides for the commencement of sections of the Act. Section 1 and Section 2 commence the day the Act receives the Royal Assent. Section 3, Section 4, Section 5 and Section 6 commence either on a day fixed by Proclamation, to allow the commencement date to be managed administratively, or after a period of 6 months from the day the Act receives the Royal Assent in the event no day is fixed by Proclamation in that period.

 

Clause 3: Objects

 

3.     Clause 3 details the objects of the Act.

 

Clause 4: Definitions

 

4.     This clause provides a number of definitions for terms used throughout the Act.

 

Clause 5: Crown to be bound

 

5.     This clause is a formal provision ensuring that the Crown is bound in each of its capacities. This clause does not limit the liability of Commonwealth authorities, agents or employees be prosecuted for an offence committed under this Act or other Commonwealth law.

 

Clause 6: Extension to external Territories

 

6.     Clause 6 ensures that the Act is effective in every external Territory.

 



 

Clause 7: Extension to things outside Australia

 

7.     Clause 7 ensures that the Act extends to acts, omissions, matters and things outside Australia.

 

Part 2 - Scope of the Act

 

Clause 8: Meaning of public interest disclosure

 

8.     This clause creates a comprehensive definition of public interest disclosure for the purposes of this Act. This clause defines a public interest disclosur e as disclosure of information by a public official about disclosable conduct. This clause limits the definition to disclosures of information by a public official to instances where the public official honestly believes on reasonable grounds that the information disclosed demonstrates disclosable conduct, or where the information disclosed does tend to demonstrate disclosable conduct regardless of the belief of the public official making the public interest disclosure.

 

9.     This clause also allows public interest disclosures to be made by public officials during an investigation of information previously disclosed by a public interest disclosure.

 

10. A public interest disclosure may relate to one or more instances of disclosable conduct and may concern conduct that occurred prior to the commencement of any part of this Act.

 

11. Disclosure of information is not a public interest disclosure for the purposes of this Act if the person making the disclosure knows the information is false or misleading, if the information relates entirely to a policy disagreement regarding public expenditure, or relates entirely to judicial or tribunal matters excluded by this clause. Disclosures of information that are not public interest disclosures are not protected by this Act.

 

12. This clause provides a definition of excluded judicial or tribunal matters which recognises that unless they constitute a criminal offence or are entirely administrative, matters that would otherwise constitute disclosable conduct but which involve the exercise of judicial power under Chapter III of the Constitution, or the exercise of like discretionary powers by Commonwealth tribunals, should not be dealt with under a law in relation to such conduct applying to members of the Legislature and the Executive.

 

Clause 9: Meaning of disclosable conduct

 

13. Clause 9 provides a comprehensive definition for the conduct about which information disclosed is protected under this Act. Disclosable conduct is: corrupt conduct carried out by any public official or agency, or by any person in relation to a public official or agency; serious and substantial maladministration; misuse of public money or public property; danger to public health; danger to the environment; and detrimental action towards anyone as a result of a public interest disclosure.

 

14. Clause 9 also includes a comprehensive definition of conduct which constitutes corrupt conduct for the purposes of this Act.

 

15. Clause 9 further defines maladministration; misuse; public health or safety; public money; and public property.

 

Clause 10: Meaning of agency

 

16. Clause 10 provides comprehensive definitions of the range of public agencies affected by provisions of this Act. Clause 10 includes definitions of agency; intelligence agency; integrity agency; and investigative agency.

 

Clause 11: Meaning of public official

 

17. Clause 11 defines public official to include a variety of persons either currently or previously employed by, contracted by, exercising a power of, or performing a function of an agency. A public official is also defined to include Senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984 . Clause 11 also provides for other categories of public officials to be prescribed by regulation.

 

Clause 12: Meaning of disclosure officer

 

18. Clause 12 provides a comprehensive definition of disclosure officer , detailing key public officers to whom public interest disclosures may always  be made. Clause 12 ensures that the head of an agency must declare at least 1 person to be a disclosure officer for public interest disclosures relating to the agency.

 

Clause 13: Meaning of relates to an entity

 

19. Clause 13 provides a technical definition of the criteria by which a public interest disclosure may relate to a particular agency.

 

Clause 14: Meaning of head of an agency

 

20. Clause 14 provides a comprehensive list of categories of agencies and the officials considered to be their head for the purposes of this Act. Clause 14 also allows a delegate of the head of an agency to be considered the head of an agency.

 

Clause 15: Meaning of sensitive defence, intelligence or law enforcement information

 

21. This clause provides a comprehensive definition of sensitive defence, intelligence or law enforcement information , outlining the attributes of information considered to be sensitive defence, intelligence or law enforcement information for the purposes of this Act.

 

Part 3 - Making a public interest disclosure

 

Clause 16: Who may make a public interest disclosure?

 

22. Clause 16 ensures that disclosure of information by a public official, in accordance with this Act, is a public interest disclosure.

 

Clause 17: To whom may a public interest disclosure be made?

 

23. This clause details the officials to whom public interest disclosures may be made. These include a disclosure officer, as well as various other categories of person depending on the circumstances of the public interest disclosure.

 

Clause 18: How may a public interest disclosure be made?

 

24. Clause 18 allows for a public interest disclosure to be made orally or in writing, anonymously, and regardless of whether the discloser asserts that the disclosure is made under the protection of this Act.

 

25. Clause 18 also ensures that a person to whom a public interest disclosure is made orally must make a written record of the disclosure.

 

Clause 19: Action upon receipt of a public interest disclosure

 

26. This clause details the actions which must be taken upon receipt of a public interest disclosure. As soon as possible, a copy of the disclosure must be given to a disclosure officer. This clause includes criteria to identify the appropriate disclosure officer to which the disclosure is to be given.

 

27. This clause also provides that after receiving a public interest disclosure, a disclosure officer must provide a copy of the disclosure to the head of each agency to which the disclosure relates, the Ombudsman, and in the event of a disclosure relating to an intelligence agency, the Inspector-General of Intelligence and Security - subject to limitations outlined in section 20 of this Act.

 

Clause 20: Limitations on obligations to inform agencies or others about public interest disclosures

 

28. Clause 20 delineates a series of limitations on the requirement to pass on information relating to public interest disclosures in specific circumstances. Whereas this Act contains explicit obligations on recipients of public interest disclosures to inform other persons of the disclosure, this Clause provides limitations and exceptions to those obligations where informing other persons would be likely to adversely affect a person’s safety, adversely affect an investigation relating to the disclosure, or result in or increase a risk that detrimental action may be taken against any person as a result of the disclosure.

 

29. This Clause also delineates the limitations that apply where a disclosure is received which contains sensitive defence, intelligence or law enforcement information. This provision does not remove the obligation of the recipient of a public interest disclosure to inform others of information relating to that disclosure which does not contain sensitive defence, intelligence or law enforcement information.

 

30. There are no limitations on the obligations to inform others about public interest disclosures where the other person being informed about the disclosure is the Ombudsman or the Inspector-General of Intelligence and Security.

 



 

Part 4 - Investigations

 

Clause 22: Investigation of public interest disclosures

 

31. Clause 22 provides that when a disclosure officer receives a public interest disclosure, the head of the agency to which the disclosure relates must investigate the disclosure. Clause 22 also ensures that where the disclosure relates to the head of an agency, the head of the agency must refer the disclosure for investigation by the Ombudsman, or if the disclosure relates to an intelligence agency, the Inspector-General of Intelligence and Security. An investigation may be referred to another agency, including an integrity agency or investigative agency, whom the head of the agency to which the disclosure relates, and the Ombudsman or Inspector-General of Intelligence and Security agree is appropriate to investigate the disclosure.

 

32. In the event that a disclosure relates to disclosable conduct on the part of the Ombudsman or Inspector-General of Intelligence and Security, the investigation must be referred to another agency they reasonably believe is appropriate to investigate the disclosure.

 

Clause 23: Referral to another agency

 

33. This Clause provides for circumstances where the investigation of a public interest disclosure may be referred to another agency.

 

Clause 24: Meaning of investigating entity

 

34. Clause 24 defines investigating entity to mean the agency tasked with investigating a public interest disclosure under sections 22 or 23 of this Act.

 

Clause 25: Referral of possible offences

 

35. This clause ensures that where an investigating entity is reasonably satisfied that the disclosable conduct they are investigating involves or may involve an offence, that entity must refer the disclosure, or part of the disclosure they are investigating to the Australian Federal Police or another investigative agency appropriate to investigate the disclosure.

 

Clause 26: Conduct of investigations

 

36. Clause 26 ensures that public interest disclosures are investigated in accordance with the procedures outlined under Commonwealth law, appropriate for investigations of the kind required by the nature of the disclosable information, including Code of Conduct investigations. Clause 26 also lists a number of procedures that investigations of disclosable conduct may include.

 

37. Clause 26 further provides that regardless of under which procedures a public interest disclosure is investigated, the investigating entity must have due regard to procedural fairness, and to the risk of detrimental action taken against any person as a result of the disclosure.

 



 

Clause 27: Investigating entity may decide not to investigate etc.

 

38. Clause 27 provides the range of circumstances where an investigating entity may decide not to investigate, or cease investigating a public interest disclosure.

 

Clause 28: Investigating entity must keep referring entity informed

 

39. Clause 28 ensures that where an investigation of a public interest disclosure has been referred by a head of an agency to another agency under section 22 or 23 of this Act, the investigation agency must keep the head of the agency from which the investigation was referred informed about the progress and outcome of the investigation.

 

40. If the investigating agency decides not to investigate the disclosure, or to end the investigation of a disclosure, they must inform the head of the agency from which the investigation was referred about the decision not to investigate or to end the investigation.

 

Clause 29: Discloser must be kept informed

 

41. Clause 29 provides that the discloser of a public interest disclosure must be kept promptly informed of any developments regarding the disclosure they have made, unless the disclosure was made anonymously, or the discloser has asked in writing not to be kept informed about the disclosure.

 

42. The discloser need not be provided with information that would be likely to identify a person that has given information in relation to the disclosure, allow the identify of the person to be worked out, adversely affect a persons safety, adversely affect an investigation relating to the disclosure, or result in or increase the risk of detrimental action being taken against any person.

 

Clause 30: Ombudsman and IGIS must be kept informed

 

43. An investigating entity must keep the Ombudsman or, where a disclosure relates to an intelligence agency, the Inspector-General of Intelligence and Security, informed about the progress and outcome of the investigation into the disclosure.

 

44. If the investigating agency decides not to investigate the disclosure, or to end the investigation of a disclosure, they must inform the Ombudsman or Inspector-General of Intelligence and Security about the decision not to investigate or to end the investigation, the grounds listed in Section 27 of this Act under which the decision not to investigate or to end the investigation was made, and the reason for the decision not to investigate or to end the investigation.

 

Part 5 - Public interest disclosure to third parties

 

Clause 31: When disclosure may be made to journalists etc.

 

45. This clause defines the circumstances where public interest disclosures may be made to journalists and other persons not listed under section 17 of this Act.  The circumstances are where: a public official has made a public interest disclosure to a person mentioned in section 17 of this Act, and that person has refused or failed to receive the disclosure; an investigating entity has refused or failed to investigate the disclosure, other than in accordance with section 27 of this Act; the discloser has not been informed within 3 months whether the disclosure will be investigated; the discloser has not been informed about the progress of an investigation relating to the disclosure for a period of more than 3 months; or the disclosure has been investigated, but no action is to be taken, and there remains clear evidence demonstrating that 1 or more instances of disclosable conduct mentioned in the disclosure has occurred or was likely to have occurred.

 

46. In addition, the circumstances where public interest disclosures may be made directly to journalists and other persons not listed under section 17 of this Act, are where a public official honestly believes on reasonable grounds that they have information that tends to show disclosable conduct, there exists a significant risk of detrimental action to the public official or someone else if a disclosure is made to a person mentioned in section 17 of this Act, and it would be unreasonable in all the circumstances for the disclosure to be made to a person under section 17 of this Act.

 

Clause 32: Disclosure may be made to journalists etc.

 

47. Clause 32 enables a public official satisfying the criteria outlined section 31 of this Act to make a public interest disclosure to a person, including a journalist, whom they reasonably believe can assist them to ensure appropriate action is taken in relation to the disclosable conduct.

 

48. Clause 32 also provides definitions of journalist and news medium .



Clause 33: Limitations on disclosures to journalists etc.

 

49. Clause 33 ensures that a public official making a disclosure to a journalist or other third party must only disclose sufficient information to demonstrate that the conduct to which the disclosure relates is disclosable conduct. Where a public official has also made a public interest disclosure to a person listed under section 17 of this Act, they may inform the journalist or other person not listed under section 17 of this Act of the progress and outcome of any investigation.

 

50. Before making a disclosure to a journalist or other person not listed under section 17 of this Act, the disclosure must first have regard to whether the information to be disclosed includes sensitive defence, intelligence or law enforcement information. If the information to be disclosed does include sensitive defence, intelligence or law enforcement information, the person making the disclosure must reasonably satisfy themselves that the public interest in disclosure of the conduct to which the disclosure relates outweighs the public interest in protection of the sensitive defence, intelligence or law enforcement information.

 

51. Clause 33 also states that nothing in part 5 of this Act authorises a public interest disclosure to be made to a foreign public official.

 



 

Part 6 - Obligations of agencies

 

Clause 34: Key responsibilities

 

52. Clause 34 outlines the responsibilities of heads of agencies in relation to public interest disclosures.

 

Clause 35: Public interest disclosure procedures

 

53. Clause 35 ensures that an agency’s procedures relating to their obligations regarding public interest disclosures must be consistent with the standards prepared by the Ombudsman under section 54 of this Act. Clause 35 also lists a series of requirements for an agency’s procedures regarding public interest disclosures.

 

54. Clause 35 requires the head of an agency to publish the agency’s public interest disclosure procedures, as well as provide copies to the Ombudsman, or if the agency is an intelligence agency, to the Inspector-General of Intelligence and Security. If the Ombudsman or, in the case of intelligence agencies, the Inspector-General of Intelligence and Security provides the head of an agency with any recommendation or direction to amend the agency’s public interest disclosure procedures, the head of the agency must comply with those recommendations or directions.

 

Clause 36: Confidentiality guidelines

 

55. This clause ensures that all public officials involved in the disclosure, referral and investigation of a public interest disclosure must observe appropriate confidentiality regarding the disclosure, particularly with respect to the identity of the disclosure, the identity of the people against whom allegations of disclosable conduct have been made, and the fact that any disclosure has been made or is being investigated.

 

Clause 37: Notification and reporting

 

56. Clause 37 outlines the notification and reporting requirements of agencies in relation to public interest disclosures.

 

Part 7 - Legal protection for disclosers

 

Clause 38: Immunity from liability

 

57. This clause outlines the circumstances in which a person making a public interest disclosure is immune from civil, criminal or administrative liability, including disciplinary action or dismissal, for making the disclosure. This protection from dismissal extends to contractors. Clause 38 explicitly states that no sanction may be imposed upon the discloser as a result of the disclosure.

 

Clause 39: Protection from defamation action

 

58. Clause 39 provides a person making a public interest disclosure with a defence of absolute privilege against any proceeding for defamation.

 

Clause 40: What is detrimental action ?

 

59. Clause 40 defines types of actions which, if they cause detriment to any person and are undertaken partly or wholly as a result of a public official making a public interest disclosure, constitute detrimental action for the purposes of this Act .

 

Clause 41: Detrimental action is adverse action in the course of employment

 

60. Clause 41 makes it clear that detrimental action undertaken in the course of a person’s employment is adverse action for the purposes of the Fair Work Act 2009 , is to be treated as such, and attracts the remedies available under the Fair Work Act 2009 for compensation, reinstatement, civil penalties or other remedial orders to be granted or ordered by Fair Work Australia or the Federal Court.

 

Clause 42: Injunction to prevent detrimental action etc.

 

61. Clause 42 provides additional authority to the Federal Court or the Federal Magistrates Court, where satisfied that a person has taken, is taking or is likely to take detrimental action, to order that person to remedy the detrimental action or grant an injunction to prevent detrimental action from being taken. In doing so, the Federal Court or the Federal Magistrates Court may make any orders that it thinks fit against any person who aided, abetted, conspired or was otherwise knowingly concerned or involved in the detrimental action.

 

62. Clause 42 also allows the Federal Court or Federal Magistrates Court to grant interim injunctions to restrain a person from taking detrimental action.

 

63. An application for the Federal Court or Federal Magistrates Court to make orders or injunctions under this clause may be made by the Ombudsman, an investigating entity, the discloser or a person against whom detrimental action has been or is likely to be taken.

 

Clause 43: Reinstatement

 

64. Clause 43 provides additional authority to the Federal Court or Federal Magistrates Court, where satisfied that a person making a public interest disclosure is or was employed in a particular position and has been terminated or may be terminated as a result of the disclosure, to order that the discloser be reinstated in their previous position or in a position with comparable duties and remuneration.

 

Clause 44: Damages for detrimental action

 

65. Clause 44 provides a person who suffers detrimental action as a result of a public interest disclosure with an alternative cause of action for damages, in the Federal Court or Federal Magistrates Court, in addition to those that may be available under the Fair Work Act 2009.  This clause also delineates applicable costs principles in relation to such actions.  However, a person may not pursue a cause of action under both the Fair Work Act and this provision, unless the prior action has been discontinued or failed for want of jurisdiction.

 



 

Clause 45: Vicarious liability

 

66. Clause 45 provides for where employees of agencies take detrimental action, both the agency and the employee are liable for the action and proceedings may be taken against either or both.

 

67. This clause also provides a defence for an agency where it proves, on the balance of probabilities, that it took every reasonable step to minimise the risk of, or prevent the employee from taking, the detrimental action in question.

 

Clause 46: Offence - victimisation

 

68. Clause 46 creates an offence for instances where a person victimises any person because of a public interest disclosure.

 

69. The offence is defined as occurring whenever a person intentionally takes, or threatens to take, detrimental action against any person because a person has made, or may make a public interest disclosure, or because the offender believes or suspects that a person has made, or may make a public interest disclosure.

 

70. Clause 46 includes provisions to assist interpretation of what actions may constitute an offence of victimisation, and to ensure that remedies for detrimental action may be sought under other sections of this Act irrespective of whether an offence is, or could be, found to have also occurred.

 

Clause 47: Liability for own conduct

 

71. Clause 47 ensures that a person may not use this Act to escape liability for their own conduct by making a public interest disclosure about their own conduct.

 

Clause 48: Loss of protection

 

72. Clause 48 provides for protection under this Act in relation to public interest disclosures to be removed where a court is satisfied that the discloser has given information to a person investigating that is false or misleading, the disclosure is vexatious, or the discloser has failed to comply in a substantial way with their obligations under this Act, unless those circumstances do not materially prejudice the investigation of the disclosure or are of a minor nature.

 

Part 8 - Oversight of public interest disclosures

 

Clause 49: Functions of Ombudsman and IGIS

 

73. Clause 49 details the functions of the Ombudsman in relation to oversight of public interest disclosures. Where the disclosure relates to an intelligence agency, the Inspector-General of Intelligence and Security has the same functions.

 

74. The Ombudsman and the Inspector-General of Intelligence and Security may enter into shared arrangements or mutual assistance while performing the functions conferred on either of them by this Act.

 



 

Clause 50: Ombudsman and IGIS may review decisions

 

75. Clause 50 includes a list of actions relating to public interest disclosures which the Ombudsman may, at any time, review. The Ombudsman may request information relevant to the case, including protected information, and agencies and public officials must comply with such requests.

 

76. After reviewing a decision, the Ombudsman may amend the decision, set aside the decision and make a new decision or take no action. The Ombudsman may also recommend to an agency or public official that it take, or not take, particular action in relation to the disclosable conduct.

 

77. The Ombudsman may exercise any power under the Ombudsman Act 1976 for the purposes of reviewing a decision, reviewing an investigation, making a recommendation or making a report in relation to the management of a public interest disclosure.

 

78. The Inspector-General of Intelligence and Security has the same review powers mentioned, and may exercise any powers under the Inspector-General of Intelligence and Security Act 1986 where disclosures relate to intelligence agencies.

 

Clause 51: Ombudsman and IGIS may conduct investigations

 

79. Clause 51 allows the Ombudsman and, where disclosures relate to intelligence agencies, the Inspector-General of Intelligence and Security, to commence investigations of public interest disclosures, including any aspect of the management of public interest disclosures. Both agencies may provide direction to an agency or investigating entity regarding the investigation of a public interest disclosure.

 

80. A person may complain to the Ombudsman or, where disclosures relate to intelligence agencies, the Inspector-General of Intelligence and Security, about any action taken by an agency or public official in exercising a function under this Act.

 

Clause 52: Report by Ombudsman or IGIS

 

81. The Ombudsman or Inspector-General of Intelligence and Security may report about an agency’s public interest disclosure procedures, or how a specific public interest disclosure is managed by an agency or public official.

 

82. Such a report may include information critical of a person or agency only if that person or agency has been given an opportunity to be heard. Such a report must not include information that is likely to adversely affect a person’s safety, adversely affect an investigation relating to a disclosure, or contain information that is sensitive defence, intelligence or law enforcement information.

 

83. Such reports must be provided to the head of any agencies to which the report relates, and the Minister or Ministers responsible for the agency or agencies. The Ombudsman or Inspector-General of Intelligence and Security may also publish a report or other information regarding a disclosure where he or she considers the publication of the report or other information to be prudent and in the public interest.

 

Clause 53: Ombudsman or IGIS must tell discloser about decisions

 

84. If the Ombudsman or Inspector-General of Intelligence and Security makes a decision or recommendation after a review under section 50 of this Act or makes a report regarding a public interest disclosure, the discloser must be informed about the decision or recommendation, and the reasons for the decision or recommendation, or provide the discloser with the report, as the case may be. This requirement does not apply if the public interest disclosure was made anonymously, or if the discloser has asked in writing not to be kept informed about the public interest disclosure.

 

85. A discloser does not need to be informed about information in relation to a disclosure if that information would be likely to identify a person that has given information in relation to the disclosure, allow the identify of the person to be worked out, adversely affect a person’s safety, adversely affect an investigation relating to the disclosure, or result in or increase a risk that detrimental action be taken against any person as a result of the disclosure.

 

Clause 54: Ombudsman’s standards

 

86. Clause 54 lists a series of subjects relating to public interest disclosures about which the Ombudsman is required to publish standards. The Ombudsman must consult with the Inspector-General of Intelligence and Security and each integrity agency prior to publishing these standards.

 

Clause 55: Annual report

 

87. Clause 55 requires the Ombudsman to include an annual report on the operations of this Act in each annual report for a financial year. This clause also lists a number of clauses which this report must include. The head of each agency, including the Inspector-General of Intelligence and Security must provide the Ombudsman with sufficient information to compile this annual report.

 

Part 9 - Miscellaneous

 

Clause 56: Protection of witnesses etc.

 

88. Clause 56 creates an offence for the victimisation, harassment, intimidation or causation of detriment to a person who has given information, produced a document, answered a question or otherwise provided assistance when requested to do so by an investigating entity, disclosure officer or other official. A person who provides such assistance is not civilly or criminally liable for the assistance they have provided.

 

Clause 57: Protection of officials from liability

 

89. Clause 57 protects officials from liability for anything done or omitted to be done honestly and without recklessness in the exercise of a function of this Act, or in the reasonable belief that the act or omission in question was in the exercise of a function under this Act.

 



 

Clause 58: Offences - use or divulge protected information

 

90. Clause 58 creates offences for the use of or divulgence of information, or for any action that divulges information about another person, by certain public officials charged with responsibilities under this Act, where the person using or divulging the information, or acting so that information is divulged knows or is reckless about whether the information is protected information.  This clause includes a definition of protected information.

 

91. The offences listed in Clause 58 do not apply where the information is used or divulged under this Act or another Commonwealth law, or in the relation of the exercise of a function under this Act or another Commonwealth law, or in a court proceeding.

 

92. Offences listed in Clause 58 place the evidentiary burden on the defendant. This is necessary as under the standard evidentiary burden a court would have to be satisfied that no act or legal instrument exists, that authorises or may authorise the use or divulgence of the protected information in question. Placing the evidentiary burden on the defendant simplifies the operation of the offences listed in this clause by placing the onus on the defendant to indicate under which act or legal instrument the protected information was used or divulged. This provision is similar to sections that appear in other investigation enabling laws.

 

Clause 59: Concurrent operation of State and Territory laws

 

93. This clause ensures that this Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently.

 

Clause 60: Legal professional privilege

 

94. This clause ensures that this Act does not affect the law relating to legal professional privilege.

 

Clause 61: Parliamentary privilege

 

95. This clause ensures that this Act does not affect the powers, privileges and immunities of the Senate, the House of Representatives, the members of each House of the Parliament, and the committees of each House of Parliament, as listed in section 49 of the Constitution.

 

96. This Act does not affect the powers, privileges and immunities granted by the Parliamentary Privileges Act 1987.

 

Clause 62: Regulations

 

97. Clause 62 allows the Governor-General to make regulations prescribing matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed to carry out the functions or to give affect to all or part of this Act.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Public Interest Disclosure (Whistleblower Protection) Bill

 

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

 

This bill advances human rights by establishing procedures for the disclosure of corruption, maladministration and other wrongdoing in the Commonwealth public sector. It protects public officials making such disclosures.

 

Human rights implications

 

·          This Bill promotes the right to privacy and reputation by protecting the privacy of individuals involved in public interest disclosures. While it does contain provisions requiring disclosure of information, it contains robust provisions to protect personal information about individuals involved and ensures that appropriate confidentiality is observed at all times.

·          This Bill provides appropriate and adapted recognition of the freedom of political communication, by providing a clear and robust framework under which public officials may communicate important information regarding the operations of government to other relevant public officials and agencies, and where necessary to the media or general public, notwithstanding any other laws that may otherwise purport to restrict that freedom.

·          This Bill furthers the right to fair trail and fair hearing rights by providing offences for victimisation and detrimental action against public officials making public interest disclosures, and ensures that all persons involved in public interest disclosures are treated with procedural fairness.

·          This Bill furthers the prohibition on torture, and cruel, inhuman or degrading treatment or punishment by providing a robust framework for such actions to be reported and investigated.

·          This Bill does not create any offences that apply retrospectively. However, it does provide protection to individuals making public interest disclosures about wrongdoing which may have occurred prior to this Act’s commencement. This is compatible with the prohibition on retrospective criminal law.

·          This Bill furthers the right to work and rights in work by providing a robust framework for Commonwealth public sector workers to make disclosures about wrongdoing with the confidence that they will not be victimised or subject to reprisals as a result of their disclosure.

·          This Bill engages the right to minimal guarantees in criminal proceedings by placing the evidentiary burden in relation to an offence on the defendant in clause 58. This is necessary to simply the operation of the offences under this clause. Were the evidentiary burden not placed on the defendant, the prosecution would be forced to prove a negative: that no act or legal instrument exists that would cause the offences or offences not to apply. By placing the evidentiary burden on the defendant, the defendant is able to indicate which act or legal instrument they believe causes the offence or offences not to apply. This method appears in other investigation enabling laws, and is a reasonable and proportionate response to the operational problem caused by the nature of the offences described in clause 58.

 

 

Conclusion

 

This bill is compatible with human rights because it advances the protection of a number of human rights, and any non-positive engagement is necessary, reasonable and proportionate.

 

 

 

Andrew Wilkie MP