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Public Interest Disclosure Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

PUBLIC INTEREST DISCLOSURE BILL 2013

 

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for the Public Service and Integrity, the Honourable Mark Dreyfus QC MP)

 

 

 

 

 

 

 

 

 

 

 

THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

 

PUBLIC INTEREST DISCLOSURE BILL 2013

Outline

The Public Interest Disclosure Bill 2013 (the Bill) will establish a legislative scheme to investigate allegations of wrongdoing in the Commonwealth public sector and provide robust protections for current or former public officials who make qualifying public interest disclosures under the scheme.  A public official for the purposes of the scheme is broadly defined covering persons in, or with a relevant connection to, the Commonwealth public sector and includes directors and officers of bodies subject to the Commonwealth Authorities and Companies Act 1997 as well as employees of Commonwealth intelligence agencies and law enforcement agencies and, in certain circumstances contractors providing services to the Commonwealth as well as their employees.

The Bill would largely implement the Government’s 2010 Response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector .

The provisions of the Bill:

·          establish a framework to encourage and facilitate reporting of wrongdoing by public officials in the Commonwealth public sector;

·          ensure that Commonwealth agencies properly investigate and respond to public interest disclosures; and

·          provide protections to public officials who make qualifying public interest disclosures.

The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security (‘the IGIS’) will have oversight functions for the scheme.  The Ombudsman will be responsible for assisting agencies and public officials in relation to the operation of the Act, including through the conduct of educational and awareness programs.  The IGIS will have that responsibility for intelligence agencies and public officials who belong to intelligence agencies.  The Ombudsman is also responsible, in consultation with the IGIS, for determining standards including for procedures to be complied with by principal officers for dealing with public interest disclosures, the conduct of investigations and the preparation of investigation reports.

The Bill will not protect disclosures made before commencement.  However, once the measures in the Bill have commenced, a public official will be able to make a public interest disclosure in relation to conduct which occurred before or after commencement.

A public official, who believes on reasonable grounds that information may concern an instance of ‘disclosable conduct’, as defined in clause 29, may make a disclosure to an authorised internal recipient in an agency or to their supervisor.  A disclosure of that kind may be made to the official’s agency, to the Ombudsman, or to the IGIS if the conduct relates to an intelligence agency.  A disclosure may also be made to a prescribed Commonwealth investigative agency that has the power to investigate a disclosure of this kind.  The Bill provides for investigative agencies, in addition to the Ombudsman and the IGIS, to be prescribed in the PID rules (clause 83 allows the Minister to make rules prescribing matters necessary for giving effect to the Bill).  This could include, for example, the Australian Public Service Commissioner, the Merit Protection Commissioner and the Commissioner for Law Enforcement Integrity.

The scheme will facilitate disclosures being reported to, and investigated, within government.  The scheme is intended to promote the integrity and accountability of the Australian government public sector. 

Principal officers of agencies are obliged to investigate a disclosure unless there is a basis for not doing so under certain grounds.  An investigation must be completed within 90 days after being allocated to an agency, although this period may be extended by the Ombudsman or the IGIS if considered appropriate.  A principal officer is obliged to notify a discloser, unless that is not reasonably practicable, of certain matters relating to the handling of a disclosure, so that disclosers are kept informed of the status of their disclosures and what actions, if any, are proposed to be taken to address their concern. 

The Bill provides broad protections for a public official who has made a qualifying public interest disclosure within the terms of the legislation.  In addition to providing immunity from criminal, civil and administrative liability for making a public interest disclosure as defined in the Bill, the Bill would make it an offence for a person to take reprisal action against any person as a result of a person making, or proposing to make, a public interest disclosure.  A public official who has suffered reprisal action for making a public interest disclosure will be able to apply to the Federal Court or Federal Circuit Court for a remedy, including compensation, injunction, apology or any other order the Court thinks appropriate.  Remedies would be available for some disclosers through the Fair Work Act 2009 , although a person could not make an application for remedy under both that Act and the PID Bill.

Financial Impact Statement

Ongoing funding has been provided to the Office of the Commonwealth Ombudsman and the Office of the Inspector-General of Intelligence and Security for their roles under the proposed scheme.

No other financial impact is anticipated, with agencies to absorb costs associated with establishing internal processes for handling and investigating public interest disclosures. 

Regulation Impact Statement

The Office of Best Practice Regulation has advised that no regulation impact statement is required for the measures contained in this Bill. 

List of frequently used abbreviations:

Bill                                           Public Interest Disclosure Bill 2013

IGIS                                          Inspector General of Intelligence and Security

Ombudsman                           Commonwealth Ombudsman

FWA                                         Fair Work Act 2009

APS                                          Australian Public Service



 

Statement of Compatibility with Human Rights

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

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

As set out in the Outline of this Explanatory Memorandum, the Bill aims to establish a legislative scheme to investigate allegations of wrongdoing in the Commonwealth public sector and to provide robust protections for current or former public officials who make qualifying public interest disclosures under the scheme.

The purpose of this Bill is to improve accountability and integrity in the Commonwealth public sector by implementing the Government’s Response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector .

Human rights implications

Right to freedom of opinion and expression

The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights ( ICCPR).  Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression and that this right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of their choice.  This right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary on limited grounds, including for the respect of the rights or reputations of others. 

The objects of this Bill include encouraging and facilitating the making of public interest disclosures by public officials and ensuring that public officials who make such disclosures are protected from adverse consequences.  In providing this protection for disclosers this Bill engages the right to freedom of expression.

In considering article 10 of the European Convention on Human Rights 1950 , which is similar to Article 19 of the ICCPR, the European Court of Human Rights found that the right to freedom of expression applied in the workplaces of civil servants ( Guja v Moldova [2008] ECHR 144).  The Court also observed that employees owe their employer a ‘duty of loyalty, reserve and discretion’.  The Court noted that any disclosure should be first made to the person’s superior or other competent authority or body.  It went on to state that, ‘[i]t is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public’ (at [73]).

The scheme established by this Bill operates in a similar manner to the way the Court considered the right to freedom of expression should apply to the workplaces of public officials.  Accordingly, in providing additional protections for persons who make public interest disclosures, the Bill is consistent with the right to freedom of expression.

The Bill provides that certain information, such as intelligence information, can never be the subject of a public interest disclosure other than an internal disclosure.  The Bill however does provide a mechanism allowing disclosure to the IGIS, as an independent external authority, consistent with the objects of accountability and integrity in the Commonwealth public sector.  Limits on public disclosure of intelligence information are within the permitted restrictions provided in Article 19(3) for the protection of national security or of public order.

Right to privacy

The prohibition on interference with privacy and attacks on reputation is contained in Article 17 of the ICCPR.

The right to privacy may be subject to permissible limitations.  In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.

The Bill contains measures to ensure that the privacy of a public official who makes a public interest disclosure is protected.  Clause 28 of the Bill will allow a disclosure to be made anonymously.  Clause 20 of the Bill will create an offence for the disclosure of the identity of a person who has made a public interest disclosure.  This provision will allow a person to make a disclosure in confidence and without fear of reputational damage if they do not wish their identity to be known.  Disclosure of identity will be permitted when it is for the purposes of the Bill.  In some cases it will be necessary for limited disclosure of the discloser’s identity in order to conduct an investigation into the conduct which is the subject of the disclosure.  In such cases the limited disclosure of the person’s identity is reasonable and necessary.

The Bill also contains measures to ensure the content of public interest disclosures is protected.  In some cases public interest disclosures will contain personal information relating to other public officials, and so it is appropriate that this information be protected.  Again, disclosure will be allowed for the purposes of investigating or responding to the conduct which is the subject of the disclosure.  This limited disclosure is reasonable and necessary, and serves a legitimate purpose (the investigation of misconduct by public officials).

The Bill will also, in limited circumstances, allow for a public interest disclosure to be made externally (including to the media).  The discloser, however, will be required to ensure that no more information is disclosed than is reasonably necessary to identify one or more instances of disclosable conduct.  Furthermore, the immunity protections in clause 10 of the Bill will be lost if a disclosure is knowingly made in contravention of a ‘designated publication restriction’, and the discloser does not have a reasonable excuse for that contravention.  Many of the provisions prescribed as a ‘designated publication restriction’ aim to protect an individual’s personal information. 

Right to work and rights in work

The right to work and rights in work are contained in articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  The rights encompass the right not to be unjustly deprived of work, or be subject to unfair dismissal.

This Bill engages these rights by providing protection from reprisals, including workplace reprisals, for public officials who make a public interest disclosure under the provisions of the Bill.  The Bill will prohibit the dismissal of an employee, alteration of an employee’s position to his or her detriment or discrimination between an employee and other employees, in relation to the making or proposed making of a public interest disclosure.  The Bill will provide for a range of remedies if any of these reprisals occur, including reinstatement of a terminated employee.

Prohibition on retrospective criminal laws

Article 15 of the ICCPR contains a prohibition on retrospective criminal laws.  Laws must not impose criminal liability for acts that were not criminal offences at the time they were committed.

The Bill will have a retrospective application in that conduct that can be the subject of a public interest disclosure will include conduct that occurred before the commencement of the measures in the Bill.  However, conduct which would be able to be disclosed and which may result in criminal liability would be conduct that would have contravened pre-existing criminal laws.  Such conduct would, therefore, already be subject to existing avenues for investigation and potential penalties under the criminal law.  Accordingly the Bill does not impose criminal liability for acts that were not criminal offences at the time they were committed.

Conclusion

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .



 

Notes on Clauses

Part 1 - Introduction

Division 1 - Preliminary matters

Clause 1: Short title

This clause provides that when the Bill is enacted, it is to be cited as the Public Interest Disclosure Act 2013 .

Clause 2: Commencement

The table in this clause sets out when provisions in the Bill would commence.  Clauses 1 and 2 (and anything else not covered in the table) would commence on the day on which the Bill receives Royal Assent.

Clauses 3 to 83 would commence on a date to be fixed by Proclamation.  However, if any of the provisions do not commence within a period of 6 months after Royal Assent they would commence on the day after the end of that period.

Clause 3: Crown to be bound

This clause states that the Crown, in each of its capacities, is bound by the Bill.

 

Clause 4: Extension to external Territories

This clause provides for the Bill to extend to every external Territory.

Clause 5: Extension to things outside Australia

This clause explains that acts, omissions, matters and things done outside Australia are covered by the Bill.

 

Division 2 - Objects

Clause 6: Objects

This clause sets out the objects of the Bill, which are to:

·          promote the integrity and accountability of the Commonwealth public sector;

·          encourage and facilitate the making of public interest disclosures by public officials;

·          ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

·          ensure that disclosures by public officials are properly investigated and dealt with.

Division 3 - Overview

Clause 7 - Overview

This clause outlines the structure of the Bill, which provides protections for public officials who make public interest disclosures and provides for investigation of disclosures that have been made.

Division 4 - Definitions

Clause 8: Definitions

This clause defines a number of terms used throughout the Bill. 

Part 2 - Protection of Disclosers

Division 1 - Protections

Clause 9: Simplified outline

This clause provides a simplified outline of Part 2 of the Bill, to assist readers.

Subdivision A - Immunity from liability

Clause 10: Protection of disclosers

Subclause 10(1) sets out that a person who makes a public interest disclosure, as defined in clause 8, is not subject to any civil, criminal or administrative liability for making the disclosure.  This clause also provides that no contractual or other remedy may be enforced or sanction imposed on the basis of making the disclosure. 

Subclause 10(2) provides the discloser with absolute privilege for defamation proceeding in respect of a public interest disclosure, as defined, and states that a contract to which the discloser is a party must not be terminated on the basis that the disclosure constitutes a breach of contract.  This subclause is not intended to limit the effect of subclause 10(1).

Clause 11: Liability for false or misleading statements etc. unaffected

Subclause 11(1) has the effect that clause 10 will not apply if the individual knowingly makes a statement that is false or misleading. 

 

Subclause 11(2) further provides that clause 10 does not apply to liability for an offence against section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code.  These are offences that relate to producing false or misleading documents and information.  Subclause 11(2) does not limit the operation of subclause 11(1).

 

Clause 11A: Designated publication restrictions

This clause has the effect that the immunity protections in clause 10 will not apply where a discloser knows that the disclosure contravenes a ‘designated publication restriction’ and does not have a reasonable excuse for that contravention.  The matters that comprise a ‘designated publication restriction’ are defined in clause 8.

Clause 12: Discloser’s liability for own conduct not affected

This clause states that the discloser’s liability for his or her own conduct is not affected by the disclosure of that conduct under this scheme.  The protection provided by clause 10 does not affect the liability of a public official for their participation in unlawful conduct which they subsequently report.   

Subdivision B - Protection from reprisals

Clause 13: What constitutes taking a reprisal

The Bill protects a person from reprisal action in relation to the making or proposed making of a public interest disclosure.  This clause clarifies what actions constitute a reprisal.  Subclause 13(1) provides that a person takes a reprisal if the person by act or omission causes any detriment to another person (the second person) because they believe or suspect that the second person or any other person may have made or proposes to make a public interest disclosure. 

Subclause 13(2) defines detriment to include any disadvantage including, but not limited to dismissal, injury, alteration of an employee’s position to their detriment and discrimination between an employee and other employees of the same employer.

Subclause 13(3) has the effect that where a person takes administrative action that is reasonable to protect a discloser from detriment, this action is not considered to be taking a reprisal.  For example, where a person has made a disclosure in relation to practices in their immediate work area, it may be appropriate to transfer them to another work area to ensure they are not subject to any detriment.

Clause 14: Compensation

Under subclause 14(1), if satisfied on application of a person that another person (‘the respondent’) took, threatened to take, or is taking or threatening to take a reprisal action against the person, the Federal Court or Federal Circuit Court may make an order requiring a respondent to compensate the applicant for loss, damage or injury as a result of the reprisal or threat.  The Court may also order that the respondent’s employer compensate the applicant for a part of the loss or damage or, alternatively, make an order requiring the respondent and employer to jointly compensate the applicant.  The respondent’s employer may also be wholly responsible for compensating the applicant.

 

Under subclause 14(2), the Federal Court or Federal Circuit Court must not make an order against the respondent’s employer if they took reasonable precautions and exercised due diligence, to avoid the reprisal or threat concerned.

  

Subclause 15(3) establishes that if an order is made that the respondent and their employer are to jointly compensate the applicant they are jointly and severally liable to pay the compensation concerned.

 

Clause 15: Injunctions, apologies and other orders

Subclause 15(1) provides that where the Federal Court or Federal Circuit Court is satisfied, on application of a person, that another person (‘the respondent’) took, or threatened to take, or is taking or threatening to take, a reprisal against the applicant, the Court may make an order granting an injunction restraining the respondent from doing something or requiring the respondent to do something, requiring the respondent to apologise or any other order the Court considers appropriate.

 

Subclause 15(2) gives the Federal Court and Federal Circuit Court power to make orders, including an injunction, against other people who are involved in taking, or conspiring to take, reprisal action against a person in relation to the making or proposed making of a public interest disclosure.

 

Clause 16: Reinstatement

Clause 16 gives the Federal Court or Federal Circuit Court power to order a person to be reinstated to their position or a position at comparable level where satisfied that the person has had their employment terminated as a reprisal for making a public interest disclosure or proposing to make a disclosure.

 

Clause 17: Multiple orders

This clause clarifies that the Federal Court or Federal Circuit Court may make orders under clauses 14, 15 and 16 for the same reprisal conduct against a person who has made, or proposes to make, a public interest disclosure.  For example, depending on the circumstances, the court may consider it appropriate to make orders of reinstatement and compensation.

 

Clause 18: Costs only if proceedings instituted vexatiously etc.

Subclause 18(1) provides that in a proceeding in a court arising under clauses 14, 15 or 16, the applicant must not be ordered to pay the costs of the other party except in accordance with subclause 18(2).

 

Under subclause 18(2) the applicant may only be ordered to pay the other party’s costs if the court is satisfied that the applicant instituted the proceedings vexatiously, or without reasonable cause, or if the applicant’s unreasonable act or omission caused the other party to incur costs.  The provision would also apply to an appeal.  For a respondent party, it is intended that the Federal Court of Australia or Federal Circuit court of Australia could exercise its ordinary jurisdiction to award costs, which could include that a respondent party pay the costs of an applicant party if the respondent party is unsuccessful in defending the claim against it. 

 

Clause 19: Offences

Subclause 19(1) makes it an offence for a person to take a reprisal against another person.  The penalty for this offence is imprisonment for 2 years or 120 penalty units, or both. 

Subclause 19(2) provides that in a prosecution for such an offence, it is not necessary to prove that a public interest disclosure was made or was intended to be made.  The focus is on the intention of the person engaging in the reprisal.

 

Subclause 19(3) provides that a person commits an offence if he or she makes a threat against another person (the second person) to take a reprisal against the second person or a third person and intends the second person to fear that the threat will be carried out or is reckless as to this occurring.  The penalty for this offence is imprisonment for 2 years or 120 penalty units, or both.  Subclause 19(4) provides that the threat may be express or implied as well as conditional or unconditional.

 

Subclause 19(5) provides that in any prosecution for such an offence, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

 

Clause 19A: Interaction between civil remedies and offences

This clause confirms that a person may make an application for compensation, reinstatement, injunction or other orders under clauses 14, 15 and 16 even if a prosecution for an offence under clause 19 in relation to the reprisal or threat has not been brought or cannot be brought.

Subdivision C - Protecting the identity of disclosers

Clause 20: Use or disclosure of identifying information

Subclause 20(1) makes it an offence for a person to disclose information that is likely to enable identification of a person who has made a public interest disclosure, where that information was obtained by any person in their capacity as a public official (that is ‘identifying information’).  The offence does not apply if the disclosure is made to the person who made the public interest disclosure .  The penalty for this offence is imprisonment for 6 months or 30 penalty units, or both.

 

Subclause 20(2) establishes that it is also an offence to use identifying information.

 

Subclause 20(3) provides that the disclosure or use of identifying information is not an offence if it is for the purposes of the Bill, is in connection with the performance of a function conferred on the Ombudsman under section 5A of the Ombudsman Act 1976 (to be inserted by a proposed consequential amendment) or conferred on the IGIS under section 8A of the Inspector-General of Intelligence and Security Act 1986 (to be inserted by a proposed consequential amendment) , or is for the purposes of a law of the Commonwealth or of a prescribed law of a State or Territory.  The disclosure of identifying information also does not constitute an offence if the person who made the public interest disclosure has consented to the disclosure or use of the identifying information, or if the identifying information has been lawfully published.

 

Clause 21: Identifying information not to be disclosed etc. to courts or tribunals

This clause provides that a person who is, or has been, a public official is not required to produce to a court or tribunal identifying information, or a document containing the identifying information, unless it is necessary for the purpose of giving effect to the Bill.  Identifying information is defined in subclause 20(1)(b) to mean information that was obtained by any person in that person’s capacity as a public official and is likely to enable the identification of a second person as a person who has made a public interest disclosure.

 

This clause is intended to provide further protection for the identity of persons who have made public interest disclosures.

 

Subdivision D - Interaction with the Fair Work Act 2009

Clause 22: Interaction with protections under Part 3-1 of the Fair Work Act 2009

This clause clarifies that Part 3-1 of the FWA (which provides for general workplace protections) applies in relation to the making of a public interest disclosure by a public official who is an employee (within the meaning of that Part) as if, for the purposes of the FWA, the PID Bill were a workplace law and the making of the disclosure was a process or proceeding under a workplace law.

Clause 22A: Interaction with remedies under the Fair Work Act 2009

The PID Bill, if enacted, would be a ‘workplace law’ within the meaning of the Fair Work Act 2009 (FWA).  This is confirmed in clause 22 of the PID Bill.  As a result, the right to make a public interest disclosure would be a workplace right for employees under the FWA.

   

The effect of subclause 22A(1) is that a person cannot apply to the Federal Court or Federal Circuit Court for an order under the PID Bill if they have applied for an order in relation to the same conduct under sections 394 or 539 of the FWA. 

 

The effect of subclause 22A(2) is that a person who has made an application under the PID Bill cannot make an application to the court under the FWA.

 

The effect of subclause 22A(3) is that the limitation to prevent a person from pursuing a remedy under both the PID Bill and the FWA will not apply if an application has been discontinued or failed for want of jurisdiction.

 

Subdivision E: Miscellaneous

Clause 23: Claims for protection

This clause sets out how a person may seek to invoke the protections provided under the scheme for making a public interest disclosure where court proceedings (‘primary proceedings’) have been instituted against the person.

 

Under subclause 23(1) the person seeking to invoke the protection under clause 10 bears an initial onus of pointing to evidence that suggests a reasonable possibility that the protection applies.  If the onus is discharged, the party taking the action against the individual then bears the onus of proving the claim is not made out.  These claims must be dealt with by the court in separate proceedings and admissions, information and evidence made or given by the individual in those separate proceedings are not admissible in evidence against the individual, except in proceedings in respect of the falsity of the admission, evidence or information.  The evidence provided by the claimant or another person in the separate proceedings does not amount to a waiver of privilege for the purposes of the primary proceedings.

 

Subclause 23(2) clarifies that a right under section 126H of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of subclause (1)(f) of clause 23.  Subclause (1)(f) provides that privilege is not waived for the purposes of the primary proceedings where evidence is given in the separate proceedings.  Section 126H of the Evidence Act creates a protection of journalists’ sources, sometime referred to as journalists’ privilege.

 

Clause 24: Protections have effect despite other Commonwealth laws

This clause provides that clauses 10, 14, 15 or 16 have effect despite any other provision of a law of the Commonwealth unless the provision is enacted after the commencement of this clause and is expressed to have effect despite this Part or clause.

 

This ensures that the protection and remedies afforded to disclosers by the Bill are not over-ridden by provisions of other laws, unless there is clear legislative intention to do so.

 

Division 2 - Public Interest Disclosures

Clause 25: Simplified outline

This clause provides a simplified outline for Division 2 to assist the reader. 

Subdivision A - Public Interest Disclosures

 

Clause 26: Meaning of public interest disclosure

Subclause 26(1) outlines what constitutes a public interest disclosure for the purposes of the Bill.  A disclosure is a public interest disclosure if the disclosure is made by a person who is, or has been, a public official, the recipient of the information is a person who is referred to in column 2 of the table in subclause 26(1) for the particular type of disclosure in column 1 of the table and all the further requirements in column 3 of the table are met for the particular type of disclosure.

 

A disclosure will be an internal disclosure if made to an authorised internal recipient (defined at clause 34), or to a supervisor of the discloser, and the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.  ‘Disclosable conduct’ is defined at clause 29. 

 

A disclosure will be an external disclosure if the disclosure is made to any person other than a foreign public official, and the following further requirements are met:

·          the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct;

·          on a previous occasion, the discloser made an internal disclosure of information that consisted of, or included, the information now disclosed;

·          any of the following apply:

o    a disclosure investigation relating to the internal disclosure was conducted under Part 3, and the discloser believes on reasonable grounds that the investigation was inadequate;

o    a disclosure investigation relating to the internal disclosure was conducted (whether or not under Part 3), and the discloser believes on reasonable grounds that the response to the investigation was inadequate;

o    the Bill requires an investigation to be conducted under Part 3, and that investigation has not been completed within the time limit under section 52 (that is, within 90 days unless the Ombudsman or IGIS has given an extension in accordance with clause 52); and

·          the disclosure is not, on balance, contrary to the public interest (subclause 26(3) provides guidance as to the factors to be taken into account in determining this);

·          no more information is publicly disclosed than is reasonably necessary to identify one or more instances of disclosable conduct;

·          the information does not consist of, or include, intelligence information (defined in clause 41); and

·          none of the conduct with which the disclosure is concerned relates to an intelligence agency (intelligence agencies are defined in clause 8).  Clause 35 provides when conduct relates to an agency.

A disclosure will be an emergency disclosure if the disclosure is made to any person other than a foreign public official and the following further requirements are met:

·          the discloser believes on reasonable grounds that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the environment. The danger in these cases would need to be substantial and imminent in the sense that the physical impact on safety or to the environment was imminent and would not include matters identified in clause 31 that are not disclosable conduct (such as disagreement with government policy);    

·          the extent of the information disclosed is no greater than is necessary to alert the recipient to the substantial and imminent danger;

·          if the discloser has not previously made an internal disclosure of the same information, there are exceptional circumstances justifying the discloser’s failure to make such an internal disclosure;

·          if the discloser has previously made an internal disclosure of the same information, there are exceptional circumstances justifying this disclosure being made before an investigation of the internal disclosure is completed; and

·          the information does not consist of, or include, intelligence information (defined in clause 41).

A disclosure will be a legal practitioner disclosure if the disclosure is made to an Australian legal practitioner as defined in clause 8 for the purpose of obtaining legal advice or professional assistance in relation to the discloser having made or proposing to make a public interest disclosure.  The legal practitioner needs to hold the appropriate level of security clearance if the discloser knows, or ought reasonably to have known, that any of the information has a national security classification or other protective security classification.  The information that is disclosed also must not consist of, or include, intelligence information (defined in clause 41).

Subclause 26(2) provides that a disclosure made before the commencement of clause 26 is not a public interest disclosure.  The Bill will apply to a public interest disclosure made after commencement that relates to conduct that occurred before or after commencement of the scheme (see subclause 29(3)).

 

Subclause 26(2A) provides that a response to a disclosure investigation is taken not to be inadequate to the extent that the response involves action that has been, is being, or is to be taken by the Minister, or a Presiding Officer.  The scheme does not apply to conduct of a Minister or Members of Parliament. 

 

Subclause 26(3) provides guidance for disclosers in determining, for the purposes of making an external disclosure, whether the disclosure is not, on balance, contrary to the public interest.  The subclause lists a range of factors to which regard must be had, which include:

 

·          whether the disclosure would promote the integrity and accountability of the Commonwealth public sector;

·          the extent to which the disclosure would expose a failure to address serious wrongdoing in the Commonwealth public sector;

·          the extent to which it would assist in protecting the discloser from adverse consequences relating to the disclosure if the disclosure were a public interest disclosure;

·          the principle that disclosures by public officials should be properly investigated and dealt with;

·          the nature and seriousness of the disclosable conduct;

·          any risk that the disclosure could cause damage to relations between the States or Territories and the Commonwealth, the international relations of the Commonwealth or the security and defence of the Commonwealth;

·          the principle that Cabinet information should remain confidential unless it is already lawfully publicly available;

·          the principle that information should remain confidential if communicated in confidence by or on behalf of a foreign government or authority;

·          any risk that the disclosure could prejudice the proper administration of justice;

·          the principle that legal professional privilege should be maintained; or

·          any other relevant matters.

 

Clause 27: Associated allegations

This clause complements clause 26 by providing that an allegation is also a public interest disclosure if it is made in conjunction with a public interest disclosure and is an allegation to the effect that the information disclosed concerns one or more particular instances of disclosable conduct. 

 

Clause 28: How a public interest disclosure may be made

Clause 28 provides that a public interest disclosure may be made:

 

·          orally or in writing (subclause 28(1));

·          anonymously (subclause 28(2)); or

·          without the discloser asserting that the disclosure is made for the purposes of the Bill (subclause 28(3)).

Subdivision B - Disclosable conduct

Clause 29: Meaning of disclosable conduct

Clause 29 sets out what constitutes wrongful conduct which can be the subject of a public interest disclosure.  Disclosable conduct is conduct, of the kind set out in the table in subclause 29(1), engaged in by an agency, or a public official in connection with his or her position as a public official.

 

Disclosable conduct also extends to conduct engaged in by a contracted service provider for a Commonwealth contract in connection entering into, or giving effect to, the contract (paragraph 29(1)(c)).  The table in subclause 29(1) sets out a broad range of conduct that constitutes disclosable conduct for the purposes of the scheme.  These include conduct that:

 

·          contravenes a law of the Commonwealth, a State or a Territory;

·          contravenes a law in a foreign country which is applicable to the agency, public official or service provider and which corresponds to a law in force in the Australian Capital Territory;

·          perverts, or is engaged in for the purpose of perverting or attempting to pervert the course of justice or conduct engaged in for the purpose of corruption of any other kind;

·          constitutes maladministration including conduct that is based in part on improper motives, is unreasonable, unjust or oppressive or is negligent;

·          is an abuse of public trust;

·          constitutes scientific misconduct (as described in item 6 of the table).  This is intended to include practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research.  It would not include honest errors or honest differences in interpretation or judgments of data.  This category of disclosable conduct also includes misconduct that relates to scientific analysis, evaluation or the giving of scientific advice;

·          results in a wastage of public money or public property;

·          unreasonably results in a danger to the health or safety of one or more persons or unreasonably increases the risk of such danger;

·          results in or increases the risk of a danger to the environment; or

·          any other conduct prescribed in the PID rules (clause 83 allows the Minister to make rules prescribing matters necessary for giving effect to this Bill).

Clause 30: Officers or employers of a contracted service provider

The Bill broadly defines who is a public official for the purposes of the scheme (see clause 69).  This clause clarifies the Bill’s application to conduct by individuals who are officers or employees of a contracted service provider for a Commonwealth contract.  The effect of subclause 30(1) is that such an individual does not engage in conduct in connection with their position as a public official unless the conduct is in connection with entering into the Commonwealth contract or giving effect to the Commonwealth contract.

 

Subclause 30(2) defines who is a contracted service provider for a Commonwealth contract.

 

Subclause 30(3) defines a Commonwealth contract.  A Commonwealth contract is a contract to which the Commonwealth or a prescribed authority is a party and under which goods or services are to be, or were to be, provided (i) to the Commonwealth or prescribed authority or (ii) for and on behalf of the Commonwealth or prescribed authority, and in connection with the performance of its functions or the exercise of its powers. 

 

The Bill is not intended to apply to the conduct of contracted service providers or their officers or employees where the conduct is not sufficiently connected with the Commonwealth.

Clause 31: Disagreements with government policies etc.

The purpose of this clause is to clarify that conduct is not disclosable conduct if it relates only to government policy, or action taken or to be taken by a Minister, the Speaker of the House of Representatives or the President of the Senate, or amounts, purposes or priorities of expenditure or proposed expenditure relating to such policy or action, with which a person disagrees.  The scheme is intended to provide a framework for identifying and addressing wrongdoing in the Commonwealth public sector.  It is not the scheme’s purpose to investigate or review government policy decisions.

Clause 32: Conduct connected with courts or Commonwealth tribunals

Subclause 32(1) establishes that conduct is not disclosable conduct if it is conduct of a judicial officer.  Disclosable conduct also does not include conduct of the chief executive officer of a court, or a member of that person’s staff, when exercising a power of the court, performing a function of a judicial nature or exercising a power of a judicial nature.  

 

Disclosable conduct does not include conduct of a Commonwealth tribunal member, the chief executive officer of a tribunal, or a member of that person’s staff, when exercising a power of the Commonwealth tribunal.  However, disclosable conduct for the purposes of the scheme can apply to conduct relating to a court or Commonwealth tribunal that is of an administrative nature and does not relate to the management or hearing of matters before the court or Commonwealth tribunal.  A ‘Commonwealth tribunal’ is defined in clause 8 to mean a body established as a tribunal by or under a law of the Commonwealth.  Under paragraph (b) of that definition, the Minister may prescribe a statutory officeholder under the PID Rules (a disallowable instrument) to be a Commonwealth tribunal.  That power is for consistency as some statutory officeholders may perform tribunal-like functions, such as the Australian Information Commissioner’s function to review decisions under Part VII of the Freedom of Information Act 1982 .

 

Subclause 32(2) defines judicial officer to mean a Justice of the High Court, a Judge or Justice of a court created by the Parliament or a Judge, Justice or Magistrate of a court of a State or Territory.

 

Subclause 32(3) defines members of the staff of the chief executive officer of a court or Commonwealth tribunal for the purposes of this clause.

 

Subclause 32(4) clarifies that a judicial officer of a court, a member of a Commonwealth tribunal, or a statutory officeholder acting as a tribunal, are not taken to be an officer of the court or tribunal for the purposes of subclause 32(3), respectively.

 

Clause 33: Conduct connected with intelligence agencies

Clause 33 establishes that conduct is not disclosable conduct if it is conduct that an intelligence agency or a public official who belongs to an intelligence agency engages in during the proper performance of its functions or powers.

 

The clause is necessary as in certain circumstances intelligence agencies are authorised to engage in conduct in a foreign country, in the proper performance of a function of the agency, which might otherwise be inconsistent with a foreign law or, in certain circumstances, Australian law.  Those actions may therefore fall within the definition of ‘disclosable conduct’ in clause 29.  For example, section 14 of the Intelligence Services Act 2001 provides that a staff member or agent of an agency covered by that Act is not subject to any civil or criminal liability in Australia for any act done outside Australia if the act is done in the proper performance of a function of the agency.  In these situations, it is important that the Australian intelligence capability, which is authorised by Australian legislation, is not undermined or otherwise impacted where the actions taken are fully within the proper performance of the duties or functions of an agency.  Clause 33 will also ensure that this conduct does not come within the scope of the scheme.

Subdivision C - Authorised internal recipients

Clause 34: Meaning of authorised internal recipient

This clause establishes who is an authorised internal recipient for the purposes of receiving a disclosure and relates to clause 26 (meaning of public interest disclosure).  If the conduct concerns an agency (other than an intelligence agency, the Ombudsman or the IGIS), an authorised internal recipient will be a principal officer of the agency or a public official who is authorised by the principal officer of the agency (see clause 36 for meaning of ‘authorised officer’), the Ombudsman or an authorised officer of a prescribed investigative agency.  The disclosure may be made to an authorised officer in an agency to which the discloser belongs, or last belonged, even though the conduct does not relate to that agency.  It will then be a matter for the authorised officer to allocate the handling of the disclosure in accordance with clause 43. 

 

Where the conduct with which the disclosure is concerned relates to an intelligence agency, the authorised internal recipient will be an authorised officer of that agency.  Disclosures may be made directly to the IGIS as an authorised internal recipient where the discloser believes on reasonable grounds it would be appropriate.  Also, disclosures can be made to a prescribed investigative agency if none of the relevant information is intelligence information (clause 41 defines intelligence information).

 

Items 3 and 4 in the table establish that the Ombudsman and IGIS are authorised internal recipients if the disclosable conduct relates to the Ombudsman or the IGIS.

 

Clause 35: When disclosable conduct relates to an agency

Subclause 35(1) establishes that disclosable conduct relates to an agency if the agency, or a public official who works for an agency at the time of the conduct, engages in the conduct.  This is a consideration in the context of clause 34 (who is an authorised internal recipient).

 

Subclause 35(2) deals with parent agencies and subsidiary agencies.  It provides that if an agency (the subsidiary agency) is established by or under a law of the Commonwealth for the purpose of assisting or performing functions connected with another agency (the parent agency) and the subsidiary agency is an unincorporated body that is a board, council, committee, sub-committee or other body and the disclosable conduct would relate to the subsidiary agency, for the purposes of this scheme it is instead taken to relate to the parent agency.  Agency is defined in clause 71.

 

Where an agency ceases to exist (for example, following a machinery of government change), subclause 35(2), provides that conduct that occurred before the cessation of the agency is instead taken, for the purposes of the Bill, to relate to the agency that acquired all the functions of the agency that ceased to exist, or the agency that acquired functions to which the conduct most closely relates, or an agency that is prescribed under the PID rules.  Whether the agency ceased to exist before or after the commencement of this clause is immaterial.

Clause 36: Meaning of authorised officers

This clause defines authorised officers for the purposes of the Bill.  Authorised officers play a central role in the investigation framework as they may receive a disclosure and are responsible for determining where disclosures should be allocated for handling.  The clause provides that they may be the principal officer of an agency (defined in clause 73) or a public official belonging to an agency who has been appointed in writing by the principal officer to take on this role.

 

Subdivision D - Intelligence information

Clause 41: Meaning of intelligence information

This clause outlines what comprises intelligence information for the purposes of the scheme.  This is also important in the context of clause 26 which provides that external disclosures, emergency disclosures or disclosures to a legal practitioner (i.e. for the purposes of obtaining legal advice in relation to making or proposing to make a public interest disclosure) will not be protected if they disclose of intelligence information.

 

Intelligence information is treated in this way under the Bill because the disclosure of intelligence information can have grave consequences for Australia’s national security, its relationship with other countri es and the safety of individuals.  Intelligence information covers sensitive information in relation to Australia’s security and intelligence agencies and the activities of those agencies, as well as sensitive law enforcement information.  There is a strong public interest in the successful prevention, disruption, detection and prosecution of criminal activity.  Subclause 41(2) defines sensitive law enforcement information as information the disclosure of which is reasonably likely to prejudice Australia’s law enforcement interests.  This subclause has been drafted to reflect the full range of activities that law enforcement agencies currently undertake in performing their legitimate and lawful functions.

 

Paragraph 41(2)(a) is intended to cover the full breadth of law enforcement functions, and recognises that law enforcement agencies are involved in a diverse range of activities.  For example, paragraph 41(2)(a) would capture the functions of the AFP, as set out in section 8 of the Australian Federal Police Act 1979 (which includes the provision of policing services in relation to Commonwealth offences and in relation to establishing, developing and monitoring peace, stability and security in foreign countries, protection services and proceeds of crime litigation).  Further, paragraph 41(2)(a) ensures that activities to prevent, detect and address professional misconduct and corruption within Commonwealth law enforcement agencies are not impeded.

Paragraph 41(2)(b) is directed to not compromising the operational methodology and tools used by law enforcement to undertake intelligence activities.   Paragraph 41(2)(c) refers to the protection and safety of informants or witnesses, persons associated with informants or witnesses, or persons involved in the protection and safety of informants or witnesses.  Paragraph 41(2)(d) refers to ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies. 

Part 3 - Investigations

Division 1 - Allocating the handling of disclosures

Clause 42: Simplified outline

This clause provides a simplified outline of Division 3 to assist readers.

 

Clause 43: Authorised officer to allocate the handling of a disclosure

Subclause 43(1) states that if a person (the discloser) discloses information to an authorised officer of an agency (the recipient agency) or to their supervisor who then gives the information to the authorised officer, the authorised officer must allocate the handling of the disclosure to one or more agencies which may be or include the recipient agency.

Subclause 43(2) provides that subclause 43(1) does not apply if the authorised officer is satisfied, on reasonable grounds, that there is no reasonable prospect that the disclosure can be considered an ‘internal disclosure’ for the purposes of the Bill (‘internal disclosure’ is defined in clauses 8 and 26). 

Subclause 43(3) sets out principles that an authorised officer is required to consider in deciding an allocation so that a disclosure is allocated to an appropriate agency for handling. 

To assist with determining an allocation, under subclause 43(4) an authorised officer may obtain information from such persons, and make such inquiries, as they consider fit.  Subclause 43(5) requires the authorised officer to use their best endeavours to make the allocation decision within 14 days of the disclosure being made.

Under subclause 43(6), an authorised officer of an agency will require the consent of an authorised officer in another agency before a disclosure can be allocated to that other agency. 

Clause 44: Giving notice of the allocation decision

Subclause 44(1) requires an authorised officer to inform the principal officer of each agency to which a disclosure is allocated of the allocation, the information that was disclosed, the suspected disclosable conduct and, if the discloser consents, the discloser’s name and contact details.

Subclause 44(1A) requires an authorised officer to give the same details about a disclosure to the Ombudsman or the IGIS (if the agency is an intelligence agency) when the authorised officer makes a decision about which agency will handle the disclosure.  This would mean that the Ombudsman and the IGIS would receive notices about all disclosures as they are being allocated by agencies. 

Subclause 44(2) requires the authorised officer to inform the discloser of the allocation of their disclosure. 

Subclause 44(3) requires the authorised officer to inform a discloser of the reasons why a disclosure has not been allocated where the officer is satisfied under subclause 43(2) that there is no reasonable basis on which the disclosure could be considered an internal disclosure.  The officer is also required to inform the discloser of any other courses of action that might be available to the discloser under other Commonwealth laws.

Subclause 44(4) has the effect that the notification requirements in subclauses 44(2) and 44(3) do not apply if contacting the discloser is not reasonably practicable. 

Clause 45: Subsequent allocations

Subclause 45(1) allows an authorised officer to re-allocate the handling of a disclosure to one or more other agencies after making an allocation decision under clause 43 or under this clause.  Subclause 45(2) applies the rules in subclauses 43(3) to (6) as well as clause 44 to a subsequent allocation decision. 

Division 2 - The obligation to investigate disclosures

Clause 46: Simplified outline

This clause sets out a simplified outline of the Division to assist readers.

Clause 47: Principal officer must investigate disclosures

Subclause 47(1) requires a principal officer of an agency (as defined in clause 73) to investigate a disclosure that has been allocated to the agency. 

Subclause 47(2) defines investigate to mean investigate, or reinvestigate, whether there are one or more instances of disclosable conduct.  The disclosable conduct may relate to the information that is disclosed or information obtained in the course of the investigation. 

Subclause 47(3) provides that an investigation may include consideration of whether a different investigation or reinvestigation should be conducted by the agency or another body under another law of the Commonwealth.  Where the alleged conduct indicates criminal activity, for example, it may be more appropriate for such conduct to be investigated by the police.  This is consistent with the principle that the scheme align with other investigative schemes.

Subclause 47(4) confirms that procedures established under a Commonwealth law are taken to be a law of the Commonwealth for the purposes of subclause 47(3).  An example is subsection 15(3) of the Public Service Act 1999 which requires an Agency Head under that Act to establish procedures for determining whether an APS employee in the agency has breached the Code of Conduct under that Act.

Clause 48: Discretion not to investigate

Subclause 48(1) gives a principal officer of an agency discretion not to investigate a disclosure, or not to investigate a disclosure further, if one of the grounds in subclause 48(1) applies.  Clauses 50 and  50A impose notification obligations on a principal officer if this power is exercised.

 

Subclause 48(2) clarifies that a decision not to investigate a disclosure, or not to investigate it further, does not prevent the information from being investigated other than under the Bill.

 

Subclause 48(3) confirms that for the purposes of subparagraphs (1)(f)(i) and (1)(g)(i) (information concerns disclosable conduct that is the same or substantially the same as conduct that is being, or has been, investigated under a Commonwealth law other than under the Bill), procedures established under a Commonwealth law are taken to be a law of the Commonwealth.  An example is subsection 15(3) of the Public Service Act 1999 which requires an Agency Head under that Act to establish procedures for determining whether an APS employee in the agency has breached the Code of Conduct under that Act.

Clause 49: Investigative agency using separate investigate powers

Clause 49 establishes that where an investigative agency has a separate investigation power in relation to the disclosure, the principal officer of the investigative agency may decide to investigate the disclosure under its own investigative power rather than to investigate the disclosure, or further investigate the disclosure, under the Bill.  Clauses 50 and  50A impose notification obligations on a principal officer if this power is exercised.

Subclause 49(2) defines a separate investigative power to mean a power that an investigative agency has otherwise than under the Bill. 

Subclause 49(3) provides that the principal officers of the agencies to which any of the suspected disclosable conduct relates and the discloser must be informed by the investigative agency that the investigation under the agency’s separate investigative power is complete.  Such requirements would operate in addition to any obligations that exist in an investigative agency’s own legislation. 

Subclause 49(4) provides that the obligation to inform the discloser does not apply if contacting the discloser is not reasonably practicable.

Clause 50: Notification to discloser

Subclause 50(1) requires the principal officer of an agency to inform the discloser, as soon as reasonably practicable that the disclosure is required to be investigated or that a decision has been made not to investigate the disclosure.

Under subclause 50(1A), the principal officer must also inform the discloser of the estimated length of the investigation if a disclosure is required to be investigated.

Subclause 50(2) requires the principal officer to inform the discloser of reasons for a decision not to investigate a disclosure, and other courses of action that might be available to the discloser under other Commonwealth laws.  Under subclause 50(3), the principal officer may delete from those reasons any reasons that would, if contained in a document, cause the document to be exempt for the purposes of Part IV of the Freedom of Information Act 1982, or cause the document to have, or be required to have, a national security or other protective security classification or to contain intelligence information. 

Subclause 50(4) permits the principal officer to give notice of the matters in this clause in the same document that would give notice of an allocation decision under subclause 44(2).

Subclause 50(5) provides that the section does not apply if contacting the discloser is not reasonably practicable.

Clause 50A: Notification to Ombudsman or IGIS of decision not to investigate

Subclause 50A(1) requires a principal officer of an agency (if the agency is not the Ombudsman, the IGIS or an intelligence agency) to notify the Ombudsman of their decision under clause 48 or 49 not to investigate a disclosure further and to give reasons for that decision.

Subclause 50A(2) requires the principal officer of an intelligence agency to inform the IGIS of their decision under clause 48 or 49 not to investigate a disclosure further and to give reasons for that decision.

Clause 51: Report of investigation

Subclause 51(1) requires the principal officer of an agency to prepare a report upon completing an investigation under Division 2 of Part 3 .

 

Subclause 51(2) sets out the requirements for the contents of a report, which are:

 

·          the matters considered in the course of the investigation;

·          the duration of the investigation;

·          the principal officer’s findings, if any;

·          the action (if any) that has been, is being, or is recommended to be, taken; and

·          any claims made about, and any evidence of, detrimental action taken against the discloser, and the agency’s response to those claims and that evidence.

Subclause 51(3) requires a principal officer to comply with standards in force under clause 74.  Clause 74 allows the Ombudsman to determine standards relating to the preparation of reports.

 

Subclause 51(4) requires a principal officer to give a copy of the report to the discloser within a reasonable time after preparing the report.  Subclause 51(6) provides that subclause 51(4) does not apply if contacting the discloser is not reasonably practicable.

 

Under subclause 51(5), the principal officer may delete from that copy any material that is likely to enable the discloser or another person to be identified, or any material the inclusion of which if contained in a document would result in the document being exempt for the purposes of Part IV of the Freedom of Information Act 1982, or result in the document having, or being required to have, a national security or other protective security classification, or result in the copy containing intelligence information, or to contravene a designated publication restriction. 

 

Clause 52: Time limit for investigations under this Division

Subclause 52(1) requires investigations under the Division to be completed within 90 days after the disclosure is allocated to the agency. 

 

Subclause 52(2) clarifies that an investigation is completed when the principal officer has prepared the report of the investigation.

 

Subclauses 52(3) and (4) permit the Ombudsman and the IGIS (if the agency is the IGIS or an intelligence agency) to extend, or further extend, the period for completing an investigation.  An extension request may be made by the principal officer of the agency or by the discloser.  The Ombudsman and IGIS may also extend the period for completing an investigation on their own initiative. 

 

Paragraph 52(5)(a) requires the Ombudsman or the IGIS to notify the discloser of an extension and of the reasons for the extension or further extension. Paragraph 50(5)(b) requires the principal officer of the agency to inform the discloser of the progress of the investigation as soon as reasonably practicable after the extension or further extension.

 

Subclause 52(5A) provides that subclause 52(5) does not apply if contacting the discloser is not reasonably practicable.

 

Subclause 52(6) clarifies that failure to complete the investigation within the time limit does not affect the validity of the investigation.

 

Clause 53: Conduct of investigations under this Division

Subclause 53(1) provides that a principal officer may conduct an investigation under the Division as they think fit.  However, under subclause 53(3) the principal officer must comply with any standards in force under clause 74. 

Subclause 53(2) permits the principal officer to obtain information and make inquiries as they see fit for the purposes of the investigation. 

Subclause 53(4) requires a principal officer to act in accordance with the Commonwealth Fraud Guidelines so far as the investigation relates to one or more instance of fraud against the Commonwealth, and to the extent the Guidelines are not inconsistent with the Bill. 

Under subclause 53(5) the principal officer must also comply with procedures established under subsection 15(3) of the Parliamentary Services Act 1999 or the Public Service Act 1999 to the extent the investigation relates to an alleged breach of the Codes of Conduct under those Acts.

Clause 54: Adoption of findings of another investigation

Subclause 54(1) permits a principal officer conducting an investigation under the Bill to adopt a finding set out in a report of an investigation or inquiry under a law of the Commonwealth, or the executive power of the Commonwealth, or another investigation under Part 3, whether conducted by the principal officer or another person. 

Subclause 54(2) confirms that procedures established under another Commonwealth law are taken to be a law of the Commonwealth for the purposes of subparagraph 54(1)(a)(i).  An example is subsection 15(3) of the Public Service Act 1999 which requires an Agency Head under that Act to establish procedures for determining whether an APS employee in the agency has breached the Code of Conduct under that Act.

Division 3 - Miscellaneous

Clause 56: Disclosure to a member of an Australian police force

Subclause 56(1) confirms that if a person conducting an investigation relating to a disclosure suspects on reasonable grounds that some or all of the information disclosed, or obtained in the course of the investigation, is evidence of the commission of an offence, the person may disclose the information to a member of an Australian police force, to the extent it is such evidence.  

Under subclause 56(2) a person must notify a member of an Australian police force of serious offences, that is where the offence is punishable by imprisonment for life or by imprisonment for a period of at least 2 years. 

Subclause 56(3) clarifies that this clause is not intended to limit a person’s power to notify a matter to a member of an Australian police force.

This clause is not intended to interfere with the way in which police forces evaluate matters referred to them, nor place any obligations on the police force to investigate the matter.

Clause 57: Protection of witnesses etc.

S ubclause 57(1) provides that a person is not subject to any criminal or civil liability because the person gives information, produces a document, or answers a question if requested to do so by a person conducting a disclosure investigation, and the information, document or answer is relevant to the investigation.

Subclause 57(2) provides that this clause does not apply to liability for an offence against section 137.1, 137.2, 144.1 of the Criminal Code that relates to the information, document or answer given by the person.  These are offences of general application of producing false or misleading documents and information.  This ensures that witnesses who attempt to knowingly mislead an investigator are not protected from the ordinary consequences of doing so.

Subclause 57(3) has the effect that the protection in subclause 57(1) does not apply to a proceeding for breach of a designated publication restriction. 

Subclause 57(4) clarifies that the clause is not intended to affect a person’s liability for his or her own conduct. 

Part 4 - Administrative Matters

Division 1 - Additional obligations and functions

Clause 58: Simplified outline

This clause provides a simplified outline of the Division, to assist readers.

Clause 59: Additional obligations of principal officers

Subclause 59(1) provides that the principal officer (as defined in clause 73) of an agency is responsible for establishing procedures for dealing with public interest disclosures relating to that agency by public officials.  The principal officer has the discretion to determine what should feature in these procedures so that they can be adapted to individual agencies but the procedures must comply with standards made under paragraph 74(1)(a) by the Ombudsman.  However, the procedures must include assessing risks that reprisals may be taken against public officials and providing for confidentiality of investigative processes.

Subclause 59(2) clarifies that procedures established under subclause 59(1) are not legislative instruments.  A `legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003 . In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. This subclause has been included to assist readers so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to procedures issued under this section.

Subclause 59(3) provides that the principal officer must also take reasonable steps to protect public officials who belong to their agency from detriment, or threats of detriment, related to a public interest disclosure by them and to ensure that the number of authorised officers (as defined in clause 36) of the agency is sufficient to ensure that they are readily accessible to public officials in the agency.  Principal officers must also make sure that public officials who belong to their agency are aware of the identity of these authorised officers.  Authorised officers are able to receive disclosures of information.

It is intended that this clause would encourage principal officers to develop measures to prevent detrimental conduct occurring.  This would facilitate greater utilisation of the public interest disclosure scheme and dissuade those with the intention of engaging in acts of detrimental conduct against disclosers.

By actively discouraging acts of detrimental conduct against disclosers through the provision of preventative measures, this clause aims to foster an environment that is supportive of persons who wish to make a public interest disclosure.

Subclause 59(4) provides that the principal officer of an agency must ensure that appropriate action is taken in response to recommendations to a report issued under clause 51.  Clause 51 provides for reports to be made following an investigation of a public interest disclosure.  This will place an obligation on principal officers to take appropriate action following an investigation.

Clause 60: Additional obligations of authorised officers

This clause applies where an individual discloses or proposes to disclose information to an authorised officer and the authorised officer has reasonable grounds to believe that the information concerns, or could concern, disclosable conduct and that the prospective discloser may not be aware of the Bill’s requirements for making an internal disclosure.  In circumstances such as this, the authorised officer must inform the individual that the disclosure could be treated as an internal disclosure for the purposes of this Bill and explain the necessary requirements.

The purpose of this clause is to ensure that people who may have information of disclosable conduct are aware of the Bill and its protections.  It enables an informed choice between this scheme and other complaint mechanisms that exist through investigative agencies.

Clause 60A: Additional obligations of supervisors

Clause 60A requires a supervisor, who is not an authorised officer of the agency to which they belong, to give the information disclosed to them by a public official, to an authorised officer of their agency where they have reasonable grounds to believe the information disclosed concerns, or could concern, disclosable conduct. 

Clause 61: Additional obligations of public officials

This clause places additional obligations on public officials to assist others in the conduct of their functions under the Bill.  A ‘public official’ is defined in clause 69.

Subclause 61(1) requires a public official to use his or her best endeavours to assist the principal officer of an agency in the conduct of an investigation under the Bill.

Similarly, subclause 61(2) requires a public official to use his or her best endeavours to assist the Ombudsman in the performance of the Ombudsman’s functions under the Bill.  Subclause 61(3) imposes the same requirement in relation to providing assistance to the IGIS.

This clause clarifies that public officials are obliged to cooperate in investigations conducted under this Bill.

Clause 62: Additional functions of the Ombudsman

Clause 62 provides that the Ombudsman has a range of additional functions to ensure the proper implementation and operation of the public interest disclosure scheme.  The Ombudsman would assist principal officers, authorised officers, public officials (present and former) in relation to the operation of the Bill and conduct education and awareness programs for agencies and public officials in relation to the scheme. 

The Ombudsman would also assist the IGIS in the performance of the functions conferred on the IGIS by this Bill.

Clause 63: Additional functions of the IGIS

Clause 63 provides that the IGIS has a range of additional functions to ensure the proper implementation and operation of the public interest disclosure scheme as it relates to intelligence agencies.  The IGIS would assist principal officers, authorised officers, public officials (present and former) in relation to the operation of the Bill and conduct education and awareness programs for agencies and public officials in relation to the scheme, as it relates to intelligence agencies. 

The IGIS would also assist the Ombudsman in the performance of the functions conferred on the Ombudsman by this Bill.

This clause complements clause 62, which places similar obligations on the Ombudsman in relation to the operation of the public interest disclosure scheme for agencies other than intelligence agencies.   

Division 2 - Treatment of information

Clause 64: Simplified outline

This clause provides a simplified outline of the Division, to assist the reader.  It notes that this Division creates offences relating to the inappropriate use or disclosure of information obtained through the operation of the Bill.

Clause 65: Secrecy - general

Subclause 65(1) provides that it is an offence for a person who has obtained information (protected information) in the course of conducting a disclosure investigation or in connection with the performance of a function, or the exercise of a power, under the Bill, to disclose that information to another person or use the information.

The penalty for this offence is imprisonment for two years or 120 penalty units, or both, which is consistent with other Commonwealth offences relating to inappropriate use or disclosure of confidential information.

Subclause 65(2) provides that the offence in subclause 65(1) does not apply if the disclosure or use is for the purposes of the Bill, or in connection with the performance of a function or the exercise of a power under the Bill, or for the purposes of, or in connection with, taking action in response to a disclosure investigation.   

An exception is also provided if the information is already lawfully publicly available and is not intelligence information.

Another exception is available if the protected information is intelligence information that has previously been lawfully published, and the disclosure or use occurs with the consent of the principal officer of the agency referred to in clause 66 as the source agency for the intelligence information.

A defendant in a prosecution of an offence under subclause 65(1) who seeks to rely on any of the exceptions in subclause 65(2) would have the onus of adducing evidence that one or more of these exceptions are available.  This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter. In this case the defendant bears an evidential burden and must adduce, or point out, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

Subclause 65(3) provides that a person is not required to produce to a court or tribunal a document containing protected information or to disclose protected information to a court or tribunal except where it is necessary to do so for the purposes of giving effect to the Bill or another law of the Commonwealth.  This will provide additional protection to information obtained under this Bill.

Clause 66: Source agencies for intelligence information

Paragraph 65(2)(f) provides that the offence in that clause is not committed where the protected information is intelligence information that has previously been lawfully published, and the disclosure or use occurs with the consent of the principal officer of the ‘source agency’ for that information.

Clause 66 provides which agency is the ‘source agency’ for the purposes of paragraph 65(2)(f) by reference to the table in clause 66. 

This table provides that if the information is intelligence information as defined in a provision in clause 41 referred to in column 1 of the table, the source agency is the agency identified in column 2 of the table.

Clause 67: Secrecy - legal practitioners

Subclause 67(1) provides that a person commits an offence if they have obtained information in their capacity as a legal practitioner under item 4 of the table in subclause 26(1) (a legal practitioner disclosure ) and discloses the information to another person or otherwise uses the information.

This offence ensures that information that is the subject of a legal practitioner disclosure is not subject to further disclosure by the legal practitioner.  The penalty for the offence is imprisonment for 2 years or 120 penalty units, or both, which is consistent with other Commonwealth offences for unauthorised disclosures.

Subclause 67(2) provides that the offence is not committed if the disclosure or use is for the purpose of providing legal advice, or professional assistance, relating to a public interest disclosure (other than a legal practitioner disclosure) or if the information has already been lawfully published.

A defendant in a prosecution of an offence under subclause 67(1) who seeks to rely on any of the exceptions in subclause 67(2) would have the onus of adducing evidence that one or more of these exceptions are available.  This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter. In this case the defendant bears an evidential burden and must adduce, or point out, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

Division 3: Officials and agencies

Clause 68: Simplified outline

This clause provides a simplified outline of the Division, to assist the reader.  It notes that this Division defines the concepts of public official, agency, prescribed authority and principal officer, which are used throughout the Bill.

Subdivision A - Public Officials

Clause 69: Public officials

This clause defines ‘public official’ for the purposes of the Bill.  The definition of public official is important because it identifies the persons who can make a public interest disclosure and the persons whose conduct a public interest disclosure can be made about. 

Public officials include:

·          a Secretary of, or an APS employee in, a Department;

·          a Head of, or an APS employee in, an Executive Agency;

·          a principal officer of, or member of the staff of, or an individual who constitutes, a prescribed authority (as defined in clause 72);

·          a member of a prescribed authority (other than a court);

·          a director of a Commonwealth company;

·          a member of the Defence Force;

·          an Australian Federal Police appointee;

·          a Parliamentary service employee (within the meaning of the Parliamentary Service Act 1999);

·          an individual who is employed by the Commonwealth otherwise than as an APS employee and who performs duties for a Department, an Executive Agency or prescribed authority;

·          certain statutory officeholders;

·          an individual who is a contracted service provider for a Commonwealth or an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes of the Commonwealth contract;

·          individuals (other than a statutory officeholder, a judicial officer or an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the individual by or under laws of the Commonwealth or a Commonwealth Territory (subject to certain exceptions, e.g. the Corporations (Aboriginal and Torres Strait Island) Act 2006);

·          an individual (other than a judicial officer) who exercises powers, or performs functions, conferred on the individual under a law in force in the Territory of Christmas Island or in the Territory of Cocos (Keeling) Islands; and

·          the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.

Subclause 69(2) provides a definition of statutory officeholder as featured in item 14 of the column in subclause 69(1) .

Subclause 69(3) clarifies that for the purposes of item 6 of the table in subclause 69(1), a person who is a member of the staff referred to subsection 31(1) of the Ombudsman Act 1976 or subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 is taken to be a member of staff of the Ombudsman and IGIS respectively.  A staff member of the Australian Commission for Law Enforcement Integrity is taken to a member of staff of the Integrity Commissioner.

Subclause 69(4) provides that, for the purposes of the Bill and the avoidance of doubt, a judicial officer or a member of a Royal Commission is not a public official.

The definition of contracted service providers (see clause 30(2)) is intended to include contracted service providers for a Commonwealth contract where the goods or services are being provided on behalf of the Commonwealth to persons in the community.  

Clause 70: Individuals taken to be public officials

This clause allows an authorised officer to determine persons to be public officials for the purposes of the Bill.  The purpose of this clause is to enable those with knowledge of unacceptable conduct who are not public officials according to the definition in clause 69 to make disclosures and receive the protection provided by the Bill.

To determine an individual to be a public official for the purposes of the Bill, the authorised officer must believe, on reasonable grounds, that an individual has information that concerns disclosable conduct.  If the individual was not a public official when he or she obtained the information and has disclosed or proposes to disclose the information to the authorised officer, the authorised officer may, by written notice given to the individual, determine that the Bill has effect in relation to the disclosure of the information by the individual as if the individual had been a public official when they obtained the information.  

A determination that an individual is a public official for the purposes of the Bill may be made on a request being made to the authorised officer by the individual or on the authorised officer’s own initiative.  If the individual makes the request and it is refused, the authorised officer must notify the individual of the refusal and reasons for refusal.

Subclause 70(3A) has the effect that a judicial officer or a member of a Royal Commission cannot be deemed to be a public official for the purposes of the Bill.

Subclause 70(4) provides that a decision made by an authorised officer under this clause is not a legislative instrument.  A `legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003 . In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. This subclause has been included to assist readers so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to procedures issued under this section.

Subdivision B - Agencies and prescribed authorities

Clause 71: Agencies

This clause defines ‘agency’, for the purposes of the Bill, to mean a Department, an Executive Agency (which has the same meaning as in the Public Service Act 1999 , see clause 8) or a prescribed authority.  A definition of ‘prescribed authority’ is found in clause 72. 

Clause 72: Prescribed authorities

This clause lists the prescribed authorities for the purposes of the Bill.  Prescribed authorities include a Commonwealth authority, a Commonwealth company, the Australian Federal Police, agencies of the Australian Intelligence Community and the High Court or any court created by the Parliament.

Subclause 72(2) provides that a person is not a prescribed authority because he or she holds, or performs the duties of:

·          an office, the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority; or

·          an office of member of a body; or

·          an office established by a law of the Commonwealth for the purposes of a prescribed authority.

Subclause 72(3) provides that for the purposes of this Bill, a Royal Commission is not a prescribed authority.

Subclause 72(4) provides that the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation and the Defence Signals Directorate are taken to be prescribed authorities in their own right, and not part of the Defence Department.

Subdivision C - Principal officers

Clause 73: Principal officers

This clause defines which officer of an agency is the ‘principal officer’ for the purposes of the Bill.   Subclause 73(1) includes a table which provides, for each agency or category of agency, who the ‘principal officer’ of that agency is.  It includes, for example, that the principal officer of a Department is the Secretary of that Department, and that the principal officer of the Australian Federal Police (AFP) is the Commissioner of the AFP.  As the Bill places particular obligations on principal officers it is important that there is clarity for each agency as to who the principal officer is.

Item 5 in the table provides that, for each Commonwealth court, the principal officer is the chief executive officer of the court concerned.  Subclause 73(2) provides who the chief executive officer is for certain courts and the Administrative Appeals Tribunal.

Part 5 - Miscellaneous

Clause 74: Ombudsman may determine standards

Subclause 74(1) provides that the Ombudsman may, by legislative instrument, determine standards in relation to procedures to be complied with by principal officers of agencies for dealing with internal disclosures and possible internal disclosures , the conduct of investigations, the preparation of reports of investigations under the Bill and the giving of information and assistance under subclause 76(3) relating to the preparation of the annual report under clause 76. 

Subclause 74(2) provides that the Ombudsman must consult with the IGIS before determining a standard.

Subclause 73(3) provides that the Ombudsman ensure that the standards are in force at all times.

Clause 75: Restriction on the application of secrecy provisions

This clause provides that a provision of a law of the Commonwealth that prohibits the disclosure, recording or use of information does not apply if the disclosure, recording or use is in connection with the conduct of a disclosure investigation, the performance of functions or exercise of powers conferred on a person by Part 3 concerning investigations (as well as additional obligations on public officials under clause 61) or giving a person access to information for the purposes of that Part or clause.  However, these laws of the Commonwealth prohibiting the disclosure, recording or use of information apply if a provision is enacted after the commencement of this clause and is expressed to have effect despite this clause.

This clause ensures that the conduct of investigations under this Bill is not affected by the operation of secrecy provisions in other legislation.  Division 2 of Part 4 of the Bill provides the circumstances in which information obtained in investigations remains confidential.

Clause 76: Annual report

Subclause 76(1) requires the Ombudsman to produce a report for the Minister at the end of every financial year (for presentation to Parliament) concerning the operation of the Bill.

Subclause 76(2) sets out matters that the report must include.  These are:

·          in relation to each agency, the number of disclosures received during the year, the kinds of conduct to which the disclosures relate, the number of disclosure investigations conducted and the actions taken in response to recommendations resulting from disclosure investigations;

·          a statement on the number and nature of complaints made to the Ombudsman about the conduct of agencies in relation to public interest disclosures;

·          information about the Ombudsman’s performance of its functions under clause 62; and

·          information about the IGIS’s performance of its functions under clause 63.

Subclause 76(3) requires the principal officer of an agency to give the Ombudsman information and assistance which the Ombudsman requires to prepare a report under this clause.  This provision recognises that the Ombudsman will be reliant on agencies to provide the information required by 76(2)(a). Subclause 74(1)(d) allows the Ombudsman to determine standards in this regard.

Subclause 76(4) clarifies that the principal officer of an agency may delete sensitive information from a document provided to the Ombudsman under 76(3).

Subclause 76(5) provides that an annual report prepared under this clause can be included in a report made under section 19 of the Ombudsman Act 1976.   Section 19 of the Ombudsman Act requires the Ombudsman to produce each year a report on the operations of the Ombudsman.

Clause 77: Delegations

Subclause 77(1) provides that the principal officer of an agency (other than the IGIS or the Ombudsman) may delegate, in writing, any or all of his or her functions or powers under the Bill to a public official who belongs to the agency.

Subclause 77(2) provides that the Ombudsman may delegate, in writing, any or all of his or her functions under the Bill to a Deputy Ombudsman or a member of staff mentioned in section 31 of the Ombudsman Act.

Subclause 77(3) provides that the IGIS may delegate, in writing, any or all of his or her functions under the Bill to a member of staff mentioned in section 32 of the Inspector-General of Intelligence and Security Act 1986 .

Clause 78: Liability for acts and omissions

This clause provides that the principal officer of an agency (or a delegate) or an authorised officer or a discloser’s supervisor is not liable to any criminal or civil proceedings, any disciplinary action or sanction for actions undertaken in good faith in the performance, or the purported performance of any function or the exercise, or purported exercise, of any power conferred on the person by the Bill.  The clause does not apply to a breach of a designated publication restriction (defined in clause 8).   

This clause does not affect any rights conferred by the Administrative (Judicial Review) Act 1977 regarding a decision made under the Bill or any other rights to seek a review by a court or tribunal in relation to a decision made, conduct engaged in for the purposes of making a decision or a failure to make a decision.

Clause 79: Concurrent operation of State and Territory laws etc.

This clause provides that the Bill is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Bill.  The intention is that public interest disclosure legislation in the States and Territories be capable of operating concurrently with this Bill.

Clause 80: Law relating to legal professional privilege not affected

This clause clarifies that the law relating to legal professional privilege is not affected by the Bill.

Clause 82:  Other investigative powers or obligations not affected

The purpose of this clause is to emphasise that the Bill does not limit the investigative powers conferred on an agency or a public official by a law of the Commonwealth other than the Bill;  nor does the Bill detract from obligations imposed on an agency or a public official by a law of the Commonwealth.

Investigate agencies have special powers to investigate matters within their jurisdiction.  The legislation providing these powers generally also places a range of obligations on those agencies in relation to the exercise of powers.  The purpose of this clause is to make clear that these powers and obligation are not affected by the Bill.

For example, the Law Enforcement Integrity Commissioner Act 2006 places obligations on the heads of agencies within the Integrity Commissioner’s jurisdiction to report allegations of corruption within their agency to the Integrity Commissioner.  The head of an agency within the Integrity Commissioner’s jurisdiction may receive a public interest disclosure that is also an allegation of corrupt conduct.  This clause makes clear that notwithstanding anything in the Bill, the obligations imposed by the Law Enforcement Integrity Commissioner Act will apply to this disclosure.

Clause 82A: Review of operation of Act

Clause 82A requires the Minister to cause a review of the operation of the Bill, when enacted, to be undertaken two years after commencement. The review must be completed within six months and a copy of the report would be required to be tabled in the Parliament by the Minister.

Clause 83: The PID rules

This clause provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Bill to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Bill.