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Public Interest Disclosure Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

PUBLIC INTEREST DISCLOSURE BILL 2013

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for the Public Service and Integrity,

the Hon Mark Dreyfus QC MP) 

 



Public Interest Disclosure Bill 2013

 

Outline

The proposed government amendments to the Public Interest Disclosure Bill 2013 will improve the operation of the Bill and clarify certain provisions.  The proposed amendments would substantially implement recommendations made by the Senate Legal and Constitutional Affairs Legislation Committee report in its inquiry into the Bill (‘the Senate Committee report’), and have also been informed by submissions made to the inquiries into the Bill by the Senate Committee and by the House of Representatives Standing Committee on Social Policy and Legal Affairs.

 

The proposed government amendments are described below.

 

Criteria for a public interest disclosure

·          Omitting as a criterion to qualify for a protected ‘internal disclosure’, ‘external disclosure’ or an ‘emergency disclosure’, the ground that a disclosure not be contrary to a designated publication restriction, and instead providing that the immunity protections in clause 10 of the Bill would not apply where a discloser knows that the disclosure contravenes the designated publication restriction and does not have a reasonable excuse for that contravention.  This amendment would address one of the matters referred to in the Senate Committee report at recommendation 7.

·          Amending a criterion to qualify for a protected ‘internal disclosure’ and ‘external disclosure’ so that it is a requirement that 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. 

·          Amending certain other criteria to qualify for a protected ‘external disclosure’ in clause 26(1) of the Bill so that:

o    one of the following grounds would need to be met, either the discloser believes on reasonable grounds that the Part 3 investigation was inadequate, or a response to any investigation was inadequate, or a Part 3 investigation has not been completed within the required time limit (implementing in part recommendation 2 of the Senate Committee report); and

o    the criterion in paragraph (f) would become, ‘no more information is publicly disclosed than is reasonably necessary to identify one or more instances of disclosable conduct’ (omitting the reference to ‘in the public interest’).

·          Adding factors to the list of factors in clause 26(3) which sets out matters a discloser is required to consider for the purposes of the public interest test criterion for a protected ‘external disclosure’, including factors favouring disclosure.  This amendment would implement in part recommendation 2 of the Senate Committee report.

Protection of disclosers

·          Amending subclause 11(1) of the Bill so that the immunity protections in clause 10 of the Bill would be lost only if the discloser ‘knowingly’ makes a statement that is false or misleading.  This amendment would implement recommendation 4 of the Senate Committee report.

·          Increasing the penalty for the offences of taking a reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years imprisonment or 120 penalty units or both.

·          Clarifying that the ‘workplace right’ protections in Part 3-1 of the Fair Work Act 2009 referred to in clause 22 of the Bill apply to the making of a public interest disclosure by a public official who is an employee within the meaning of Part 3-1 of the Fair Work Act.  Other amendments would combine the provisions dealing with the interaction between the Bill and the Fair Work Act into a stand-alone subdivision in Part 2 to assist with readability.

·          Clarifying that a person may make an application to the Federal Court or Federal Circuit Court for compensation, reinstatement, injunction or other orders under clauses 14, 15 and 16 even if a prosecution in relation to the reprisal has not been brought or cannot be brought for the purposes of the offences of taking a reprisal, or threatening to take a reprisal, at clause 19.

·          Providing that an applicant to a proceeding arising under clauses 14, 15 or 16 may only be ordered to pay the costs of the other party if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause, or if the court is satisfied that the  applicant’s unreasonable act or omission caused the other party to incur costs.

·          Providing that the consent of the discloser is needed for an authorised officer to give a principal officer the name and contact details of the discloser when the authorised officer is allocating a disclosure to the principal officer of an agency (clause 44(1)(d)).

Oversight by the Ombudsman or the Inspector-General of Intelligence and Security

·          Requiring the Ombudsman or the IGIS (if the disclosure relates to an intelligence agency) to give reasons when notifying the discloser of a decision they have made to extend the period for an agency to investigate a disclosure.

·          Requiring an authorised officer of an agency to give certain details about a disclosure to the Ombudsman or the IGIS (if the agency is an intelligence agency) when the officer makes a decision about which agency will handle the disclosure (referred to in the Bill as an allocation decision).  This would mean that the Ombudsman and the IGIS would receive notices about all disclosures as they are being handled by agencies.

·          Requiring a principal officer of an agency to notify the Ombudsman or the IGIS (if the agency is an intelligence agency) of a decision not to investigate a disclosure and to give reasons for that decision.

·          Adding notes to the Bill to refer to the remedy for a discloser who is dissatisfied with the handling of a disclosure by an agency to complain to the Ombudsman or the IGIS (if the agency is an intelligence agency).

Other proposed amendments

·          Providing for a discloser to qualify for protection for the purposes of an ‘internal disclosure’ if the discloser makes a disclosure to a supervisor and meets other criteria.  This amendment would implement in large part recommendation 1 of the Senate Committee report.

·          Removing some grounds on which a principal officer of an agency may decide not to investigate a disclosure.  This amendment would address a matter referred to in the Senate Committee report at recommendation 7.

·          Requiring the principal officer of an agency to inform a discloser of the progress of an investigation as soon as reasonably practicable after an extension or further extension for an investigation is approved by the Ombudsman or the Inspector-General of Intelligence and Security.

·          Clarifying obligations on principal officers, the Ombudsman and the IGIS to give certain notices about the handling of a disclosure by replacing the concept of giving notice ‘if the discloser is readily contactable’ with the concept that the obligation would not apply if contacting the discloser is not reasonably practicable.

·          Amending a secrecy offence in the Bill (clause 65(2)) so that the disclosure or use of protected information would be permitted for the purposes of the Bill or for the purposes of, or in connection with, taking action in response to a disclosure investigation.

·          Confirming that a judicial officer or a member of a Royal Commission cannot be deemed to be a public official for the purposes of clause 70 of the Bill.

·          Clarifying that a tribunal for the purposes of clause 32 (exclusion of conduct connected with tribunals) means a tribunal established under a law of the Commonwealth.

·          Enabling the Minister, under the PID rules, to prescribe a statutory officeholder to be a tribunal for the purposes of clause 32 with the effect that their tribunal-like conduct could not be the subject of a public interest disclosure.  The amendment is proposed because some statutory office holders 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 .

·          Removing clause 81 dealing with parliamentary privilege. This amendment would implement recommendation 5 of the Senate Committee report.

·          Providing for the Minister to cause a review to be undertaken of the operation of the Act to start 2 years after the commencement of the Act and to be completed within 6 months, with a copy of the report to be tabled in the Parliament.  This amendment would implement recommendation 6 of the Senate Committee report.

 

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. 

 

Agencies are to absorb costs associated with establishing processes for handling and investigating public interest disclosures.

 

To the extent any of the proposed amendments would give rise to resource implications these costs would be absorbed by agencies.

 

List of abbreviations

 

Bill                                          Public Interest Disclosure Bill 2013

Fair Work Act                        Fair Work Act 2009

ICCPR                                   International Covenant on Civil and Political Rights

IGIS                                       Inspector-General of Intelligence and Security

 

 



 

Statement of Compatibility with Human Rights

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

 

Amendments to the Public Interest Disclosure Bill 2013

The proposed amendments are 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 amendments

The purposes of the proposed government amendments are set out in the Outline above.

 

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 the 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.  The emphasis of the scheme is on disclosures of wrongdoing being reported to and investigated within government.  This is consistent with observations made by the European Court of Human Rights when considering article 10 of the European Convention on Human Rights 1950 , which is similar to Article 19 of the ICCPR.  The Court found that the right to freedom of expression applied in the workplaces of civil servants, and also commented that as employees owe their employer a ‘duty of loyalty, reserve and discretion’, disclosures should first be made to the person’s superior or other competent authority and ‘[i]t is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public’ ( Guja v Moldova [2008] ECHR 144).    

 

Broadly speaking, in addition to giving protections for disclosures reported internally, the Bill will also give protections for an ‘external disclosure’ where an agency has inadequately handled a public interest disclosure that has previously been reported internally and where certain other criteria are met.  The Bill will also give protection where criteria are met for an ‘emergency disclosure’ or for a ‘legal practitioner disclosure’.

 

Amendments proposed to the Bill will amend some criteria to qualify for a protected disclosure and therefore engage the right to freedom of opinion and expression.  These include the following.

·          The requirement that a disclosure not be contrary to a ‘designated publication restriction’ would be omitted as a criterion to qualify for a protected ‘internal disclosure’, ‘external disclosure’ or an ‘emergency disclosure’.   A different approach is taken, so that instead the immunity protections in clause 10 of the Bill would not apply where a discloser knows that the disclosure contravenes the designated publication restriction and does not have a reasonable excuse for that contravention (amendments (7), (23), (24) and (33)).

·          The requirement to qualify for an ‘external disclosure’ that an investigation or response to an investigation be inadequate would be satisfied if the discloser believes on reasonable grounds that the Part 3 investigation was inadequate, or the discloser believes on reasonable grounds that a response to any investigation was inadequate, or if a Part 3 investigation has not been completed within the required time limit.  The tests for determining inadequacy in clauses 37, 38 and 39 would be omitted (amendments (3), (21), (25) and (32)).

 

Other proposed amendments serve to enhance protections for disclosers who make qualifying public interest disclosure and thereby engage the right to freedom of opinion and expression, in particular: 

·          amending subclause 11(1) of the Bill so that the immunity protections in clause 10 of the Bill would be lost only if the discloser ‘knowingly’ makes a statement that is false or misleading (amendment (6));

·          increasing the penalty for the offences in clause 19 of taking a reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years imprisonment or 120 penalty units or both (which is increased from 6 months or 30 penalty units or both) (amendments (9) and (10)); and

·          providing that an applicant to a proceeding arising under clauses 14, 15 or 16 may only be ordered to pay the costs of the other party if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause, or if the court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur costs (amendment (8)).

 

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.

In response to inquiries by the Parliamentary Joint Committee on Human Rights about the scope of exceptions to the secrecy offence in clause 65(2), proposed amendments will omit as exceptions where the use or disclosure of protected information is for the purpose of another Commonwealth law, or is in connection with the exercise of Commonwealth executive power.  Amendment (65) will insert a more specific exception so that the offence would not apply if the disclosure or use of protected information is for the purpose of, or in connection with, taking action in response to a disclosure investigation.  The effect of these changes are that the secrecy offence would not apply if the disclosure or use of protected information is for the purposes of the Bill, or for the purposes of, or in connection with, taking action in response to a disclosure investigation.

Amendment (38) promotes the right to privacy of those persons who make a public interest disclosure by requiring an authorised officer when allocating a disclosure for investigation to obtain the discloser’s consent before providing a principal officer with the discloser’s name and contact details.

 

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.

 

A number of the proposed amendments enhance protections for a discloser and thereby serve to enhance these rights.  These amendments are:

·          amending subclause 11(1) of the Bill so that the immunity protections in clause 10 of the Bill would be lost only if the discloser ‘knowingly’ makes a statement that is false or misleading (amendment (6));

·          increasing the penalty for the offences in clause 19 of taking a reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years imprisonment or 120 penalty units or both (from 6 months or 30 penalty units or both) (amendments (9) and (10));

·          providing that an applicant to a proceeding arising under clauses 14, 15 or 16 may only be ordered to pay the costs of the other party if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause, or if the court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur costs (amendment (8)); and

·          clarifying that a person may make an application to the Federal Court or Federal Circuit Court for compensation, reinstatement, injunction or other orders under clauses 14, 15 and 16 even if a prosecution in relation to the reprisal has not been brought or cannot be brought for the purposes of the offences of taking a reprisal, or threatening to take a reprisal, at clause 19 (amendment (11)).

Several amendments enhance the right to work and the rights in work by strengthening the oversight measures in the Bill, in particular:

·          requiring the Ombudsman or the IGIS (if the disclosure relates to an intelligence agency) to give reasons when notifying the discloser of a decision they have made to extend the period for an agency to investigate a disclosure (amendment (53));

·          requiring an authorised officer of an agency to give certain details about a disclosure to the Ombudsman or the IGIS (if the agency is an intelligence agency) when the officer makes a decision about which agency will handle the disclosure (referred to in the Bill as an allocation decision).  This would mean that the Ombudsman and the IGIS would receive notices about all disclosures as they are being handled by agencies (amendment (39)); and

·          requiring a principal officer of an agency to notify the Ombudsman or the IGIS (if the agency is an intelligence agency) of a decision not to investigate a disclosure and to give reasons for that decision (amendment (53)).

Conclusion

The amendments proposed to the Bill are compatible with human rights and serve to promote the right to privacy, the right to work and rights in work and the right to freedom of opinion and expression in so far as the amendments would operate to simplify criteria to qualify for protected disclosures.

 



Public Interest Disclosure Bill 2013

 

Notes on amendments

 

Amendments (1), (4), (27-30) and (68) [ Commonwealth tribunals ]

Amendment (1) clarifies that a ‘tribunal’, for the purposes of clause 32 which provides that certain conduct connected with a tribunal is not ‘disclosable conduct’, means a body established as a tribunal by or under a law of the Commonwealth.  Amendment (1) also enables the Minister, under the PID rules, to prescribe a statutory officeholder to be a tribunal for the purposes of clause 32 with the effect that their tribunal-like conduct could not be the subject of a public interest disclosure.  The amendment is proposed because 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

 

Amendments (4), (27-30) and (68) are consequential to amendment (1) to replace references to ‘tribunal’ with references to ‘Commonwealth tribunal’. 

 

Amendments (2), (7), (17-19), (23-24), (33-34), (55), (59), (69) and (71) [ designated publication restrictions ]

Amendments (19), (23) and (24) would remove as a criterion to qualify for a protected ‘internal disclosure’, ‘external disclosure’ or an ‘emergency disclosure’, the ground that a disclosure not be contrary to a designated publication restriction.

 

Amendment (7), is complementary to those amendments, and would insert clause 11A, which has the effect that the immunity protections in clause 10 of the Bill would not apply where a discloser knows that the disclosure contravenes a ‘designated publication restriction’ and does not have a reasonable excuse for that contravention.  

 

Amendment (2), which inserts into the definitions clause the provisions which constitute a ‘designated publication restriction’ for the purposes of clause 11A(2), are the same provisions listed in the Bill at clause 40.  Clause 40 would be omitted by amendment (34).

 

Amendments (17-18), (33), (59), (69) and (71) are consequential to the above amendments and would update a simplified outline (17-18), a subdivision heading (33) and update clause references ((59), (69) and (71)).

 

Clause 51(5) permits the principal officer of an agency to delete certain material from a copy of a report of an investigation to be given to a discloser.  Amendment (55) would amend that clause to add, as a further ground for deletion, any material the inclusion of which would contravene a ‘designated publication restriction’.

 

Amendment (5), (16), (19), (31), (35-37), (60), (62), (70) [ disclosure to supervisors ]

The effect of amendment (19), in so far as it amends the middle column of table item 1 in clause 26(1), is that for the purposes of an ‘internal disclosure’ a disclosure may be made to a supervisor as well as to an authorised internal recipient.  Amendments (16), (35), (36) and (60) are consequential to this amendment and update three simplified outlines.  Amendment (31) adds a note to clause 34 which defines who is an ‘authorised internal recipient’.  Amendment (37) is also consequential to amendment (19) and updates clause 43 which places an obligation on an authorised officer to allocate the handling of disclosures to one or more agencies.

 

Amendment (5) defines a supervisor to mean a person who is a public official who supervises or manages the person making a disclosure.

 

Amendment (62) complements amendment (19), and inserts a new clause 60A that would require a supervisor, where they have reasonable grounds to believe that information disclosed by a public official concerns, or could concern, disclosable conduct to give the information to an authorised officer of the agency to which the supervisor belongs. 

 

Amendment (70) is consequential to the above amendments and would amend clause 78(1) to protect a supervisor from liability for acts or omissions done in good faith in performing obligations under the Bill.  Under existing clause 78(1), protection of this kind applies to principal officers, their delegates and authorised officers when performing functions or exercising powers under the Bill.

 

Amendment (6) [false or misleading statements]

This amendment would amend clause 11 of the Bill so that the immunity protections in clause 10 of the Bill would be lost if the discloser ‘knowingly’ makes a statement that is false or misleading.

 

Amendment (8) [ Interaction with the Fair Work Act 2009; costs ]

Amendment (8) would omit clause 18 of the Bill (interaction with remedies under the Fair Work Act) and substitute a new clause 18 that provides that an applicant to a proceeding arising under clauses 14, 15 or 16 may only be ordered to pay the costs of the other party if the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause, or if the court is satisfied that 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.

 

Existing clause 18, dealing with the interaction with remedies under the Fair Work Act and the Bill, is preserved by amendment (14) as clause 22A.

 

Amendments (9-10) [ penalties for reprisals ]

These amendments would amend the offences in clause 19 to increase the penalty for taking a reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years imprisonment or 120 penalty units or both.  This is a change from 6 months imprisonment or 30 penalty units or both.  The amended penalty is comparable to a similar offence of victimisation in section 220 of the Law Enforcement Integrity Commissioner Act 2006 .

 

Amendment (11) [ interaction between civil remedies and offences ]

Amendment (11) inserts a new clause 19A clarifying 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.  The provision is expressed to avoid doubt on the interaction between the offences in clause 19 and the civil remedies in the Bill.

 

Amendments (8), (12), (14-15) [interaction with the Fair Work Act 2009]

The effect of these amendments is to combine the provisions dealing with the interaction between the Bill and the Fair Work Act into a stand-alone Subdivision D in Part 2.  These amendments are to assist with readability.

 

Amendment (13) [meaning of employee]

This amendment clarifies that the ‘workplace right’ protections in Part 3-1 of the Fair Work Act referred to in clause 22 of the Bill apply to the making of a public interest disclosure by a public official who is an employee within the meaning of Part 3-1 of the Fair Work Act. 

 

Amendments (19-20) [ disclosure without belief of disclosable conduct ]

Amendment (19), in so far as it amends the third column of table item 1 in clause 26(1), would amend paragraph (a) of the further requirements to qualify for a protected ‘internal disclosure’ so that the requirement would be that 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. 

 

Amendment (20) makes the same amendment in the context of the requirement at paragraph (a) to qualify for a protected ‘external disclosure’ at table item 2 in clause 26(1).

 

Amendments (3), (21), (25) and (32) [ inadequate investigations ]

Amendment (21) omits, from the further requirements for an ‘external disclosure’ in the third column of table item 2 in clause 26(1), the criteria in paragraphs (c) and (d), and substitutes the criteria that any of the following apply:

·          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; or

·          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; or

·          the Bill requires an investigation relating to the internal disclosure to be conducted under Part 3, and that investigation has not been completed within the time limit under section 52.

 

Amendments (3) and (32) are consequential amendment to amendment (21), omitting the definition of inadequate and the grounds in clauses 37 to 39, which include objectively based criteria, of when an investigation or response is taken to be inadequate.

 

Amendment (25) preserves the principle in clauses 38(2) and 39(2) 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. 

 

Amendment (22) [ external disclosures ]

This amendment amends paragraph (f) of the further requirements for a protected ‘external disclosure’ in table item 2 of clause 26(1), so that the requirement would become, ‘no more information is publicly disclosed than is reasonably necessary to identify one or more instances of disclosable conduct’, in place of the current reference to ‘in the public interest’.

 

Amendment (26) [ public interest test ]

Amendment 26 adds factors to the list of factors in clause 26(3) which sets out matters a discloser is required to consider for the purposes of the public interest test criterion for a protected ‘external disclosure’.  The additional factors add balance to the list of factors and include factors that would favour disclosure of information.  Some of these additional factors reflect objects outlined in clause 6.

 

Amendments (36), (43) and (61) [complaints to Ombudsman and IGIS]

These amendments add notes, respectively, to clause 42 (simplified outline on allocating the handling of disclosures), clause 46 (simplified outline on the obligation to investigate disclosures) and clause 58 (simplified outline on additional obligations and functions) to refer to the remedy for a discloser who is dissatisfied with the handling of a disclosure by an agency to complain to the Ombudsman or the IGIS (if the matter relates to an intelligence agency).  The placement of the notes is not intended to limit the capacity for a discloser to complain to the Ombudsman or the IGIS at any point in the handling of a disclosure they have made.

 

Amendment (38) and (46) [notification of allocation decision]

Amendment (38) would amend paragraph 44(1)(d) so that an authorised officer would give details of a discloser’s name and contact details to a principal officer who will be handling a disclosure if the discloser consents to the principal officer being informed. Amendment (46) is consequential upon this change.

 

Amendment (39) [notification of allocation decision]

This amendment inserts a new subclause (1A) in clause 44, and would place an obligation on an authorised officer of an agency to give certain 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.  The matters that the authorised officer would need to notify are the same matters that an authorised officer needs to give to a principal officer who is being allocated the disclosure in clause 44(1).

 

Amendments (40-42), (47-50), (52) (54) (56-57) [contacting the discloser]

These amendments (other than amendment (50)) clarify obligations on principal officers, the Ombudsman and the IGIS to give certain notices about the handling of a disclosure by replacing the concept of giving notice ‘if the discloser is readily contactable’ with the concept that the obligation does not apply if contacting the discloser is not reasonably practicable. 

 

Clause 50 requires a principal officer to notify a discloser about a decision to investigate or not investigate.  Amendment (50) will add a time frame so that these notices must be given as soon as reasonably practicable.

 

Amendments (44-45) [ discretion not to investigate ]

Amendment (44) would omit paragraph 48(1)(b) as a ground on which a principal officer may decide not to investigate a disclosure. That ground is that if the information disclosed does not tend to show any instance of disclosable conduct.

 

Amendment (45) would omit the concepts of ‘misconceived or lacking in substance’ as grounds on which a principal officer may decide not to investigate from paragraph 48(1)(d).  It would remain a ground not to investigate if the disclosure is frivolous or vexatious.

 

Amendments (51) and (58)

To assist with readability, the obligation on a principal officer to notify a discloser of the estimated duration of an investigation is moved from clause 55 (which will be omitted by amendment (58)) to clause 50 (amendment (51)).  

 

Amendment (53) [notification of decision not to investigate]

This amendment adds a new clause 50A, which would require a principal officer of an agency to notify the Ombudsman or the IGIS (if the agency is an intelligence agency) of a decision not to investigate a disclosure and to give reasons for that decision.

 

Amendment (57) [reasons for extending period for completion, informing the discloser of progress]

Under clause 52(5) the Ombudsman or the IGIS is required to notify a discloser of a decision by them to extend the time period that an agency has for undertaking an investigation.  Amendment (57) will require the Ombudsman or the IGIS (if the agency is an intelligence agency) to give reasons for their decision when giving that notice to a discloser (paragraph 52(5)(a)).

 

Paragraph 52(5)(b) will insert an additional notification obligation on a principal officer of an agency to inform a discloser of the progress of an investigation as soon as reasonably practicable after an extension or further extension for an investigation is approved by the Ombudsman or the Inspector-General of Intelligence and Security.

 

Amendments (63-66) [Secrecy]

Clause 65(1) makes it an offence if a person discloses or uses information obtained by them in the course of conducting an investigation or in connection with the performance of a function or exercise of a power under the Bill (referred to as ‘protected information’).  The offence does not apply if an exception applies.  These amendments are relevant to the exceptions and would remove references to authorising use or disclosure for the purpose of ‘another law of the Commonwealth’ or for the purpose of ‘the exercise of the executive power of the Commonwealth’ in paragraphs 65(2)(a)-(d) (amendments (63-65)). 

 

Amendment (65) would substitute a new paragraph 65(2)(c) providing for the disclosure or use of protected information for the purpose of, or in connection with, taking action in response to a disclosure investigation.  Authorisation for that purpose could apply for example to disclosure to police or to the Law Enforcement Integrity Commissioner.

 

Amendment (66) would omit subclause 65(4) which is consequential to amendments (63-65).

 

Amendment (67) [judicial officers etc. not to be public officials]

This amendment confirms 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.

 

Amendment (72) [law relating to parliamentary privilege]

Amendment (72) would omit clause 81. This would implement a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee report on the Bill.

 

Amendment (73) [Review of operation of Act]

Amendment (73) would require the responsible 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.