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Part 4—Protections for disclosers under this Act

Part 4 Protections for disclosers under this Act

Division 1 Meaning of NACC disclosure

23   Meaning of NACC disclosure

                   A person makes a NACC disclosure if:

                     (a)  the person refers, or provides other information about, a corruption issue to the Commissioner or the IGIS under Part 5; or

                     (b)  the person refers, or provides other information about, a NACC corruption issue to the Inspector under section 202 or 203; or

                     (c)  the person gives evidence or information, or produces a document or a thing, under this Act to a NACC Commissioner, the IGIS or the Inspector in relation to any of the following:

                              (i)  a corruption issue;

                             (ii)  a NACC Act process;

                            (iii)  a NACC corruption issue;

                            (iv)  a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

Division 2 Protection of persons from liability

24   Protection of persons from liability

             (1)  If a person makes a NACC disclosure:

                     (a)  the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for the NACC disclosure; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the NACC disclosure.

             (2)  Without limiting subsection (1):

                     (a)  the person has absolute privilege in proceedings for defamation in respect of the NACC disclosure; and

                     (b)  a contract to which the person is a party must not be terminated on the basis that the NACC disclosure constitutes a breach of the contract.

25   Liability for false or misleading statements unaffected

             (1)  Section 24 does not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a statement that is false or misleading.

             (2)  Without limiting subsection (1), section 24 does not apply to liability for an offence against section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code .

26   Person’s liability for own conduct not affected

                   To avoid doubt, whether the person’s disclosure of their own conduct is a NACC disclosure does not affect the person’s liability for the conduct.

27   Claims for protection

             (1)  If, in civil or criminal proceedings (the primary proceedings ) instituted against a person in a court, the person makes a claim (relevant to the proceedings) that, because of section 24, the person is not subject to any civil, criminal or administrative liability for making a particular NACC disclosure:

                     (a)  the person bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

                     (b)  if the person discharges that onus—the party instituting the primary proceedings against the person bears the onus of proving that the claim is not made out; and

                     (c)  the court must deal with the claim in separate proceedings; and

                     (d)  the court must adjourn the primary proceedings until the claim has been dealt with; and

                     (e)  none of the following:

                              (i)  any admission made by the person in the separate proceedings;

                             (ii)  any information given by the person in the separate proceedings;

                            (iii)  any other evidence adduced by the person in the separate proceedings;

                            is admissible in evidence against the person except in proceedings in respect of the falsity of the admission, information or evidence; and

                      (f)  if the person or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

             (2)  To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

28   Protection has effect despite other Commonwealth laws

                   Section 24 has effect despite any other provision of a law of the Commonwealth, unless:

                     (a)  the provision is enacted after the commencement of this section; and

                     (b)  the provision is expressed to have effect despite this Part or that section.

Division 3 Protection from reprisals

29   What constitutes taking a reprisal

             (1)  A person (the first person ) takes a reprisal against another person (the second person ) if:

                     (a)  the first person causes (by act or omission) any detriment to the second person; and

                     (b)  when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a NACC disclosure; and

                     (c)  that belief or suspicion is the reason, or part of the reason, for the act or omission.

             (2)  Detriment includes any disadvantage, including (without limitation) any of the following:

                     (a)  dismissal of an employee;

                     (b)  injury of an employee in their employment;

                     (c)  alteration of an employee’s position to their detriment;

                     (d)  discrimination between an employee and other employees of the same employer.

             (3)  Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.

30   Offences—taking a reprisal or threatening to take a reprisal

Offence—taking a reprisal

             (1)  A person commits an offence if the person takes a reprisal against another person.

Penalty:  Imprisonment for 2 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the other person made, may have made or intended to make a NACC disclosure.

Offence—threatening to take a reprisal

             (3)  A person (the first person ) commits an offence if:

                     (a)  the first person makes a threat to another person (the second person ) to take a reprisal against the second person or a third person; and

                     (b)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to the second person fearing that the threat will be carried out.

Penalty:  Imprisonment for 2 years.

             (4)  For the purposes of subsection (3), the threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

             (5)  In a prosecution for an offence under subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

Division 4 Protection for journalists’ informants

31   Protection for journalists’ informants

Application

             (1)  This section applies if:

                     (a)  a person (the informant ) gives information, whether directly or indirectly:

                              (i)  to another person who works in a professional capacity as a journalist; and

                             (ii)  the information is given in the normal course of the journalist’s work as a journalist; and

                     (b)  the journalist reasonably believes that the informant has provided the information on the express or implied understanding that the informant’s identity would not be disclosed.

Protection of informant’s identity

             (2)  Neither the journalist nor the journalist’s employer is required to do anything under this Act that would disclose the identity of the informant or enable that identity to be ascertained.

             (3)  If the journalist is a staff member of a Commonwealth agency, the reference in subsection (2) to the journalist’s employer is taken to include a reference to the head of the agency.

Search powers exception

             (4)  However, this section does not prevent an authorised officer from doing anything the authorised officer would otherwise be able to do in exercising powers under Part IAA of the Crimes Act 1914 for the purposes of this Act (see section 119 (search warrants, and stopping and searching conveyances)).

Note:          A public interest test applies to the issue of search warrants involving journalists: see the modifications made by section 124 to the applied search powers of the Crimes Act 1914 .