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Public Interest Disclosure Amendment (Review) Bill 2022

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2022

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

public interest disclosure Amendment (Review) bill 2022

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the

Attorney-General, the Hon Mark Dreyfus KC MP)

 



Table of contents

Glossary                                                                                                                                            1

General outline and financial impact                                                                                                2

Statement of Compatibility with Human Rights                                                                              7

Public Interest Disclosure Amendment (Review) Bill 2022                                                          14

Preliminary                                                                                                                               14

Schedule 1—Main Amendments                                                                                                 16

Part 1              Personal work-related conduct                                                                              16

Part 2              Allocation and investigation of disclosures                                                            18

Part 3              Protections and civil remedies                                                                               34

Part 4              Reporting and sharing information                                                                        47

Part 5              Roles of the ombudsman and the IGIS                                                                   52

Part 6              Machinery of government changes                                                                        54

Part 7              Agencies, public officials, principal officers                                                          59

Schedule 2—other amendments                                                                                                  65

Schedule 3—Application and saving provisions relating to schedules 1 and 2                                71

Schedule 4—Amendments contingent on the National Anti-Corruption legislation                         73

 



The following abbreviations and acronyms are used throughout this Explanatory Memorandum.

Abbreviation

Definition

AAT Act

Administrative Appeals Tribunal Act 1975

ACIC

Australian Criminal Intelligence Commission

ACLEI

Australian Commission for Law Enforcement Integrity

AFP

Australian Federal Police

AFP Act

Australian Federal Police Act 1979

the Bill

Public Interest Disclosure Amendment (Review) Bill 2022

Corporations Act

Corporations Act 2001 (Cth)

CDPP

Commonwealth Director of Public Prosecutions

ICCPR

International Covenant on Civil and Political Rights

the IGIS

Inspector-General of Intelligence and Security

IGIS Act

Inspector-General of Intelligence and Security Act 1986

Moss Review

2016 Review of the Public Interest Disclosure Act 2013 by Mr Philip Moss AM

MoPS Act

Members of Parliament (Staff) Act 1984

NACC

National Anti-Corruption Commission

NACC Bill

National Anti-Corruption Commission Bill 2022

NACC Consequential Bill

National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022

the Ombudsman

The Office of the Commonwealth Ombudsman

Ombudsman Act

Ombudsman Act 1976

PGPA Act

Public Governance, Performance and Accountability Act 2013

PGPA Rule

Public Governance, Performance and Accountability Rule 2014

PID

Public Interest Disclosure

PID Act

Public Interest Disclosure Act 2013

PJCIS Press Freedom Report

2020 Parliamentary Joint Committee on Intelligence and Security Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press

PJCCFS Whistleblower Report

2017 Parliamentary Joint Committee on Corporations and Financial Services Inquiry into whistleblower protections in the corporate, public and not-for-profit sectors report



 

General outline and financial impact

GENERAL OUTLINE

Purpose and objective

1.1                     The Public Interest Disclosure Amendment (Review) Bill 2022 (the Bill) amends the Public Interest Disclosure Act 2013 (PID Act) in order to deliver priority reforms to the existing Commonwealth public sector whistleblowing framework established by the PID Act.

1.2                     The PID Act enables public officials to disclose suspected wrongdoing by another public official or by an Australian Government agency , and provides for suspected wrongdoing to be investigated and addressed by the relevant agency . Public officials who make a disclosure in accordance with the PID Act have protections from reprisal actions and immunity from civil, criminal and administrative liability for making the disclosure. In limited circumstances, a disclosure can be made externally outside of government.

1.3                     The Bill primarily implements recommendations of the 2016 Review of the Public Interest Disclosure Act 2013 by Mr Philip Moss AM (Moss Review), as well as core recommendations of other inquiries into the PID Act’s operation. These include:

•        21 of the 33 recommendations of the Moss Review to improve and strengthen the PID Act framework

•        recommendations 10 and 11 of the 2020 Parliamentary Joint Committee on Intelligence and Security Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press (PJCIS Press Freedom Report) to improve oversight by the Inspector-General of Intelligence and Security (IGIS) of PIDs within intelligence agencies and public oversight of the use of the public interest disclosure scheme through biannual reports to Parliament

•        recommendations 6.1 and 6.3 of the 2017 Parliamentary Joint Committee on Corporations and Financial Services Inquiry into whistleblower protections in the corporate, public and not-for-profit sectors report (PJCCFS Whistleblower Report) to clarify that former officials can make a public interest disclosure (PID) and expand the definition of takes a reprisal.

•        additional limited amendments to appropriately align the PID Act with the private sector whistleblowing scheme in the Corporations Act 2001 (Cth), and improve the operation of the PID Act.

1.4                     The provisions of the Bill would:

•        make it easier for agencies to administer the PID scheme by providing greater flexibility in how they handle disclosures

•        provide increased protections for disclosers

•        enhance oversight of the scheme by the Office of the Commonwealth Ombudsman (Ombudsman) and the IGIS

•        make it easier for a disclosure to be investigated under another law or power, including by the National Anti-Corruption Commission (NACC), where this is more appropriate than dealing with the disclosure under the PID Act, and

•        improve information-sharing provisions, giving agencies more confidence to share information relating to a disclosure to ensure it can be investigated by the most appropriate agency .

1.5                     Implementing these measures through the Bill would deliver immediate improvements to the operation of the PID Act, which would be in place prior to the commencement of the NACC, ahead of progressing broader reforms to comprehensively redraft the PID Act to address the underlying complexity of the scheme and provide effective and accessible protections for public sector whistleblowers.

Background

Moss Review

1.6                     Beginning on 16 January 2016, Mr Philip Moss AM conducted an independent statutory review of the PID Act . Mr Moss was the Integrity Commissioner and head of the Australian Commission for Law Enforcement Integrity between 2007 and 2014.

1.7                     The Moss Review was conducted in accordance with section 82A of the PID Act, which requires that a review of the PID Act be undertaken two years after its commencement. The purpose of the Moss Review was to gather information and views on whether the PID Act was operating as intended and whether it could be improved.

1.8                     The final report was provided to the then Minister Assisting the Prime Minister for the Public Service on 15 July 2016. The report was informed by consultation with the Ombudsman and the IGIS, 46 public submissions and consultations with a broad range of key stakeholders.

1.9                     The final report included 33 recommendations to improve the operation of the PID Act. This Bill would implement 21 of these recommendations.

PJCIS Press Freedom Report

1.10                 On 4 July 2019, the then Attorney-General of Australia referred a general inquiry to the PJCIS pursuant to subparagraph 29(1)(b)(ia) of the Intelligence Services Act 2001 (Cth). The final report was released on 21 August 2020.

1.11                 The inquiry’s report made two substantive recommendations for amendments to the PID Act (recommendations 10 and 11).

1.12                 This Bill would implement recommendations 10 and 11 of the PJCIS Press Freedom Report.

PJCCFS Whistleblower Report

1.13                 On 30 November 2016, the Senate referred an inquiry into whistleblower protections in the corporate, public and not for profit sectors to the Parliamentary Joint Committee on Corporations and Financial Services. The final report was released on 14 September 2017.

1.14                 The inquiry primarily examined the private sector whistleblowing scheme under the Corporations Act but some recommendations related to the public sector whistleblowing scheme under the PID Act.

1.15                 This Bill would implement recommendations 6.1 and 6.3 of the PJCCFS Whistleblower Report.

Outline of the Bill

Schedule 1—Main amendments

Personal work-related conduct

14.1                 Schedule 1, Part 1 of the Bill would provide that ‘personal work-related conduct’ does not fall within the PID scheme. It does this by removing the concept of ‘personal work-related conduct’ from the definition of disclosable conduct unless it relates to systemic wrongdoing or constitutes reprisal action in relation to a disclosure (Moss Review recommendations 5 and 6).

Allocation and investigation of disclosures

1.16                 Schedule 1, Part 2 concerns the handling and investigation of disclosures. It would make the following key amendments:

•        Enable an authorised officer to allocate the disclosure to another agency in the same portfolio, if the authorised officer is satisfied that the other agency is better able to handle that disclosure (Moss Review recommendation 14).

•        Provide principal officers with a discretion to not investigate, or stop investigating, if the disclosure would be more appropriately investigated under another law or power (Moss Review recommendation 31).

•        Require an authorised officer of an intelligence agency to provide a disclosure to the IGIS as soon as reasonably practicable and in any case within 1 business day if the discloser states the disclosure is ‘urgent’ and within 14 days for non-urgent disclosures (PJCIS Press Freedom Report recommendation 10).

•        Require the principal officer of the intelligence agency in which the disclosure originated to provide regular written notice to the IGIS during the 90-day investigation window to outline investigation progress and potential outcome timelines, including possible extensions (PJCIS Press Freedom Report recommendation 10)

•        Require a principal officer to provide all disclosure investigation reports to the Ombudsman or the IGIS within a reasonable period of time (Moss Review recommendation 3), and provide the Ombudsman and the IGIS with expanded powers to better inquire into and oversee the handling of disclosures.

•        Repeal subsection 53(5), which requires principal officers to comply with relevant legislative procedures to the extent that an investigation relates to an alleged breach of a Code of Conduct under the Parliamentary Service Act 1999 or the Public Service Act 1999 (Moss Review recommendation 32).

•        Exclude the following situations from the mandatory obligation to notify police of evidence of an offence punishable by at least 2 years’ imprisonment (Moss Review recommendation 23):

-       the agency itself has the capacity to investigate the relevant offence and meet the requirements for gathering evidence and preparing a brief of evidence for the Commonwealth Director of Public Prosecutions (CDPP), and

-       the conduct relates to a corruption issue which has been notified to the Integrity Commissioner under section 19 of the Law Enforcement Integrity Commissioner Act 2006 (or, following passage of the NACC Consequential Bill, referred to the NACC Commissioner under section 24 of the National Anti-Corruption Commission Act 2022 ).

Protections and civil remedies

1.17                 Schedule 1, Part 3 addresses protections for disclosers and civil remedies in the case of a reprisal action taken against a person who has made, may have made, proposes to make or could make a PID. It would make the following key amendments:

•        Provide witnesses with the same protections from reprisal, civil, criminal and administrative liability as a discloser (Moss Review recommendation 28).

•        Expand the definition of takes a reprisal to provide protections for those who have made, may make, propose to make or could make a disclosure (PJCCFS Whistleblower Report recommendation 6.3).

•        Align the definition of detriment in the PID Act with section 1317ADA of the Corporations Act.

•        Rewrite the existing reprisal offence in section 19 of the PID Act.

•        Clarify when the use or disclosure of identifying information is for the purposes of section 20 of the PID Act (Moss Review recommendation 18).

•        Introduce a positive obligation upon a principal officer to support disclosers and witnesses involved in the PID process (Moss Review recommendation 20).

•        Introduce a positive obligation on principal officers to provide ongoing training and education to public officials about integrity and accountability (Moss Review recommendation 22).

•        Introduce a positive duty on authorised officers to take reasonable steps to protect public officials belonging to the agency against reprisals.

•        Expand additional obligations of supervisors under section 60A to include an obligation to explain matters to the discloser (Moss Review recommendation 23).

•        Introduce a duty on public officials to use their best endeavours to assist another public official to perform a duty or function under the PID Act (Moss Review recommendation 21).

Reporting and sharing information

1.18                 Schedule 1, Part 4 would make amendments to facilitate information-sharing about a disclosure between agencies, including investigative agencies, to ensure it can be investigated by the most appropriate agency . It would make the following key amendments:

•        Provide explicit permission to share information between agencies, including investigative agencies (the Ombudsman and the IGIS), in particular circumstances (Moss Review recommendation 4).

•        Repeal the general secrecy offence in section 65 (Moss Review recommendation 16).

•        Provide for the mandatory reporting of aggregated statistics on public interest disclosures, related to numbers and timeframes of all disclosures, to be made to the Parliament every six months by the Attorney-General (PJCIS Press Freedom Report recommendation 11).

Roles of the Ombudsman and the IGIS

1.19                 Schedule 1, Part 5 would clarify the role of the Ombudsman and the IGIS in receiving and investigating complaints about an agency’s handling of a PID.

Machinery of Government changes

1.20                 Schedule 1, Part 6 would establish a procedure for how disclosures are to be handled where there is a machinery of government (MOG) change.

1.21                 This part would enable the transfer of disclosures that are on foot from the first agency to a second agency following a MOG change.

Agencies, public officials, principal officers

1.22                 Schedule 1, Part 7 would make amendments related to the scope and meaning of the definitions of agencies , public officials and principal officers under the PID Act. It would make the following key amendments:

•        Amend the definition of agency to include Commonwealth entity as defined in the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) (Moss Review recommendation 29).

•        Clarify that judicial officers, members of parliament or persons employed under the Members of Parliament (Staff) Act 1984 (Cth) (MoP(S) Act) are not public officials for the purposes of the PID Act (Moss Review recommendation 26).

•        Clarify that former officials can make a disclosure (PJCCFS Whistleblower Report recommendation 6.1).

Schedule 2—Other amendments

Other amendments

1.23                 Schedule 2 would make several other amendments to simplify and clarify certain provisions under the PID Act. The key amendments are as follows:

•        Explicitly exclude grant recipients from the application of the PID Act (Moss Review recommendation 30).

•        Provide that the Minister must cause a review of the PID Act as soon as practicable 5 years after the commencement of the amendments (Moss Review recommendation 1).

Schedule 3—Application and saving provisions relating to Schedules 1 and 2

1.24                 Schedule 3 contains the application and saving provisions for the proposed amendments in Schedules 1 and 2 of the Bill.

Schedule 4—Amendments contingent on the National Anti-Corruption Commission legislation

1.25                 Schedule 4 contains contingent amendments to the NACC Bill, the NACC Consequential Bill and the PID Act to support the operation of the NACC once it is established and to ensure that reprisal protections for disclosers remain consistent across the PID and NACC frameworks.

FINANCIAL IMPACT

1.26                 Some of the proposed amendments contained in this Bill would impact the respective workloads of the Ombudsman and the IGIS.

 

 

 

 



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

Public Interest Disclosure Amendment (Review) Bill 2022

1.                        The 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

2.                        The Bill makes priority reforms to the public sector whistleblowing framework established by the PID Act. It primarily implements core recommendations of the Moss Review and other key parliamentary inquiries to improve the PID Act’s operation.

3.                        The PID Act enables public officials to disclose suspected wrongdoing by another public official or by an Australian Government agency , and for suspected wrongdoing to be investigated and addressed by the relevant agency . Public officials who make a disclosure in accordance with the PID Act have protections from reprisal actions and have immunity from civil, criminal and administrative liability for making the disclosure. In limited circumstances, a disclosure can be made externally outside of Government.

4.                        The provisions of the Bill would:

•        make it easier for agencies to administer the PID scheme by providing greater flexibility in how they handle disclosures

•        provide increased protections for disclosers

•        enhance oversight of the scheme by the Ombudsman and the IGIS

•        make it easier for a disclosure to be investigated under another law or power, including by the NACC, where this is more appropriate than dealing with the disclosure under the PID Act

•        improve information-sharing provisions, giving agencies more confidence to share information relating to a disclosure to ensure it can be investigated by the most appropriate agency .

Human rights implications

5.                        The measures in the Bill engage the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):

•        the prohibition on interference with privacy, and right to reputation, under article 17

•        the right to freedom of expression under article 19(2)

•        the right to the presumption of innocence contained in article 14(2)

•        the prohibition on retrospective offences or penalties, under article 15.

6.                        The measures in the Bill would also engage the right to work and rights in work contained in articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The prohibition on interference with privacy, and right to reputation, contained in article 17 of the ICCPR

7.                        The prohibition on interference with privacy and attacks on reputation is contained in article 17 of the ICCPR. The United Nations Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

8.                        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 lawful and not arbitrary. The term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary to achieve a legitimate objective.

9.                        The Bill would implement several measures that interact with the right to privacy and right to reputation, including in relation to:

•        repeal and replacement of existing secrecy offences with information-sharing mechanisms (section 65, see item 63 of Part 4 of Schedule 1)

•        requiring a principal officer to provide all disclosure investigation reports to the Ombudsman or the IGIS (subsections 51(4) and 51(6), see items 28 and 30 of Part 2 of Schedule 1)

•        duties and powers to provide information to the Australian Federal Police (subsections 56(2), 56(3) and 56(4), see item 34 of Part 2 of Schedule 1)

•        clarifying when the use or disclosure of identifying information is ‘for the purpose’ of the PID Act and can therefore be disclosed (subsections 20(4), see item 50 of Part 3 of Schedule 1), and

•        information transfer after a machinery of government change (section 73D, see item 76 of Part 6 of Schedule 1).

10.                     Nevertheless, for the reasons discussed below, any limitations on the right to privacy caused by these provisions are reasonable, proportionate and necessary to achieve a legitimate objective.

Reasonable, proportionate and necessary to achieve a legitimate objective
Repeal of existing secrecy offence and establishment of information-sharing mechanisms

11.                     The Bill proposes to repeal the general secrecy offence in section 65 of the PID Act, and replace this with a new information-sharing provision that permits information about a disclosure to be shared between agencies, including investigative agencies (new section 65, see item 63 of Part 4 of Schedule 1). Information may be otherwise shared between agencies if that can be done consistently with the offence for the use or disclosure of identifying information about a discloser in section 20, and any other legislative information-sharing provisions an agency (or the information) may be subject to.

12.                     By permitting information about a disclosure to be shared between agencies, this amendment may limit the right to privacy and reputation.

13.                     However, this limitation on the right to privacy and reputation is rationally connected to the legitimate objective of facilitating the investigation of disclosures by ensuring agencies have sufficient information to conduct their investigation.

14.                     This amendment is also reasonable, proportionate and necessary in achieving this legitimate objective. The absence of an information-sharing provision impedes the investigation of disclosures and the ability for disclosers to obtain resolution for their disclosures. Recommendation 16 of the Moss Review recognised that it also acts as a barrier to investigation of disclosures by the most appropriate agency who is equipped to investigate.

15.                     The new information-sharing provision in section 65 is also appropriately tailored and proportionate to protect the privacy of individuals while simultaneously facilitating the investigation of disclosures. Under subsection 65(5), this provision does not authorise the use or disclosure of the discloser’s identifying information (such as their name and contact details), without the discloser’s consent (which may include their implied consent, consistent with the general approach to consent in Australian privacy law).

16.                     In this way, the provision allows necessary sharing of information to the extent that it facilitates PID investigations, while maintaining privacy of individuals. The curtailment of the right to privacy does not extend beyond what is necessary to serve this legitimate objective and is therefore reasonable, necessary and proportionate.

Requiring a principal officer to provide all disclosure investigation reports to the Ombudsman or the IGIS

17.                     Proposed subsection 51(4) would require a principal officer to provide the disclosure investigation report to the Ombudsman or the IGIS, as relevant (see item 28 of Part 2 of Schedule 1).

18.                     This amendment is designed to achieve the legitimate objective of increasing the Ombudsman and the IGIS’ oversight of agencies’ PID processes. It complements proposed section 55, which would allow the Ombudsman and the IGIS to make recommendations about the handling of a PID as part of strengthening their scrutiny function (see item 34 of Part 2 of Schedule 1).

19.                     In addition to serving a legitimate purpose, this amendment is also proportionate, necessary and appropriately tailored to protect the personal information and privacy of individuals. Subsection 51(6) provides principal officers the discretion to remove information from investigation reports provided to the Ombudsman or the IGIS that may identify the discloser or another person, or any information that would contravene a designated publication restriction. In this way, the requirement to provide disclosure reports to the Ombudsman and the IGIS will not unduly impinge on the right to privacy (see item 30 of Part 2 of Schedule 1).

Duties and powers to provide information to an Australian police force

20.                     Where the PID investigation suggests an offence has been committed carrying at least two years’ imprisonment, the investigator must inform a member of an Australian police force and provide them with ‘relevant information’ (section 56(3), see item 34 of Part 2 of Schedule 1). This may consist of all or part of all or part of the information disclosed, and any other information obtained in the course of the investigation (section 56(1), see item 34 of Part 2 of Schedule 1).

21.                     While this requirement has the potential to impact the right to privacy (depending on the content of the information disclosed), it is rationally connected to the legitimate objective of ensuring the most serious criminal conduct disclosed is investigated and resolved through the appropriate channels.

22.                     The Bill would also introduce two limitations on this obligation that ensure this potential encroachment on the right to privacy is proportionate and does not extend beyond what is necessary to achieve this legitimate purpose.

23.                     Firstly, new paragraph 56(4)(a) states that an agency does not need to notify a member of an Australian police force if the agency itself has the capacity to investigate the relevant offence and meet the requirements for gathering evidence and preparing a brief of evidence for the Commonwealth Director of Public Prosecutions (see item 34 of Part 2 of Schedule 1).

24.                     Additionally, new paragraph 56(4)(b) provides that if the Integrity Commissioner of the Australian Commission for Law Enforcement Integrity has already been notified (or is already aware) of a corruption issue (or, following passage of the NACC Consequential Bill, referred to the NACC Commissioner under section 24 of the National Anti-Corruption Commission Act 2022 ), there is no mandatory requirement to notify a member of an Australian police force (as per recommendation 33 of the Moss Review) (see item 34 of Part 2 of Schedule 1).

25.                     In this way, these amendments only encroach on this right to the extent necessary to facilitate adequate investigations of serious criminal conduct.

Clarifying when the use or disclosure of identifying information is ‘for the purpose’ of the PID Act

26.                     The current PID Act contains an offence for the use or disclosure of identifying information about a person (section 20). However, this information can be used or disclosed if it is ‘for the purpose’ of the PID Act.

27.                     The Bill would insert new subsection 20(4) into the PID Act to clarify the instances in which using or disclosing identifying information is ‘for the purpose’ of the PID Act. In effect, this would provide agencies with increased confidence to disclose personal information in relevant instances and would therefore enliven the right to privacy (see item 50 of Part 3 of Schedule 1).

28.                     New subsection 20(4) is rationally connected with the legitimate objective of ensuring personal information can be communicated to provide assistance in relation to a disclosure, enable disclosers to seek legal advice in relation to a disclosure, and allow performance of functions or the exercise of powers in good faith under the PID Act.

29.                     Without this amendment, individuals involved in the PID process may be unsure whether they can communicate personal information that is necessary for a disclosure to be investigated, or necessary to obtain legal advice about a disclosure, which would significantly disrupt the operation of the scheme. Accordingly, this amendment is necessary to facilitate the operation of core functions under the PID Act. This amendment is also proportionate in that it does not permit the sharing of personal information that goes beyond what is necessary to facilitate the operation of the PID process.

30.                     Accordingly, this measure is compatible with the right to privacy.

Information transfer after a machinery of government change

31.                     New section 73C would enable the transfer of disclosures that are on foot from the first agency to a second agency following a machinery of government change (see item 76 of Part 6 of Schedule 1).

32.                     As part of this process, section 73D specifies what information may be provided to the new agency after a machinery of government change. This includes any report of the investigation, any notice of recommendations by the Ombudsman or the IGIS, and any other information in relation to the disclosure. This could interact with the right to privacy, depending on the content of the information given to the second agency .

33.                     This requirement is reasonably connected to the legitimate objective of ensuring disclosures can continue to be considered and investigated if a machinery of government change has occurred. This amendment is also necessary, as without it, there would be no mechanism for considering these types of disclosures. Further, it is appropriately tailored and proportionate as the transferred information would remain subject to the protections against the use of identifying information in section 20 of the PID Act. Accordingly, this amendment is reasonable and does not unnecessarily impinge on the right to privacy.

The right to freedom of expression, contained in article 19(2) of the ICCPR

34.                     Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to 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.

35.                     However, Article 19(3) of the ICCPR provides that the exercise of the rights provided for in article 19(2) carries special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for the protection of national security and for the respect of individuals’ rights or reputations. These permissible restrictions include those necessary for the protection of national security, public order, public health, public morals and the rights or reputation of others.

The Bill enlivens the right to freedom of expression by clarifying when the use or disclosure of identifying information is ‘for the purpose’ of the PID Act (section 20) and can therefore be disclosed.

36.                     The current PID Act contains an offence for the use or disclosure of identifying information about a person (section 20). However, this information can be used or disclosed if it is ‘for the purpose’ of the PID Act. This has the effect of limiting the information that a person can communicate in some instances, thereby enlivening the right to freedom of expression.

37.                     The Bill inserts new subsection 20(4) into the PID Act to clarify the instances in which identifying information is ‘for the purpose of the PID Act’ and can therefore be disclosed (see item 50 of Part 3 of Schedule 1). In effect, this would provide agencies with more confidence to use and disclose identifying information when it is permitted under subsection 20(4) and support freedom of expression. This amendment is not intended to expand the scope of the provision, but rather, to clarify its operation.

38.                     Accordingly, this measure supports the right to freedom of expression while maintaining confidentiality to the maximum extent.

The right to the presumption of innocence contained in article 14(2) ICCPR

39.                     Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

40.                     The Bill would limit the right to the presumption of innocence under article 14(2) of the ICCPR by placing a reversed evidential burden on defendants with respect to the exception to the reprisal offences in subsection 19(4) of the PID Act (as amended by item 46 of Part 3 of Schedule 1 to the Bill), and the corresponding identical exception to the reprisal offences in subsection 30(4) of the NACC Bill (as amended by item 4 of Part 3 of Schedule 4 to the Bill) .

41.                     This exception states that the reprisal offence in subsections 19(1) and (2) does not apply if the defendant can prove that their conduct was ‘administrative action’ that is reasonable to protect the plaintiff from detriment (see item 46 of Part 3 of Schedule 1).

42.                     Reversing the evidential burden in this way may limit article 14(2), as it places the burden of proving the defence in subsection 19(4) on the defendant.

43.                     However, under international human rights law, a ‘reversed evidential burden’ will not necessarily limit the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

Reasonable, proportionate and necessary to achieve a legitimate objective

44.                     The reversed evidential burden in subsection 19(4) is necessary to achieve the legitimate objective of ensuring the offence provision in section 19 can operate as intended to provide protections for disclosers.

45.                     Reversing the evidential burden in this instance is reasonable, proportionate and necessary in the circumstances, given the question of whether something is a reasonable administrative action would be peculiarly within the knowledge of the defendant and would not be known to the prosecution. The inherent difficulty in establishing the absence of justification would otherwise undermine the effectiveness of the offence provision in section 19.

46.                     The reversed evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code 1995 , this burden requires the defendant to adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist. It does not require the defendant to prove those matters beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt.

47.                     Accordingly, the reversed evidential burden is reasonable, proportionate and necessary in this circumstance.

The right to work and rights in work, contained in articles 6(1), 7 and 8(1)(a) of the ICESCR

48.                     The right to work and rights in work are contained in articles 6(1), 7 and 8(1)(a) of the ICESCR. The right encompasses the right not to be unjustly deprived of work, or be subject to unfair dismissal.

49.                     The Bill includes several measures designed to further protect public officials who make a valid disclosure from reprisal actions, including unfair dismissals or other detriment resulting from their disclosure. It also clarifies the existing protections under the PID Act to make these protections easier for disclosers to obtain.

50.                     These measures include:

•        extending protections against reprisal action, as well as civil, criminal and administrative immunity, to witnesses (sections 12A and 12B, see item 40 of Part 3 of Schedule 1)

•        additional positive obligations on principal officers and authorised officers to take reasonable steps to protect disclosers from detriment, including those who ‘could’ make a disclosure (sections 59 and 60, see items 54 and 55-58 of Part 3 of Schedule 1)

•        rewriting the existing reprisal offence in section 19 of the PID Act to improve the operation of the provision (section 19, see item 46 of Part 3 of Schedule 1)

•        expanding additional obligations on supervisors to require them to explain the PID process to disclosers, including the available protections (section 60A, see item 59 of Part 3 of Schedule 1)

•        clarifying that former public officials can make a disclosure (note under subsection 69(1), see item 85 of part 7 of Schedule 1)

•        clarifying the definition of takes a reprisal to include action taken against a person who ‘could make’ a disclosure (section 13, see item 41 of Part 3 of Schedule 1)

•        extending a principal officer’s protections from liability for acts or omissions done in good faith, to those assisting the principal officer and those assisting a delegate of the principal officer (paragraphs 78(1)(ca) and 78(1)(f), see items 19 and 20 of Schedule 2).

51.                     The Bill also contains some amendments that limit the types of persons and conduct that fall within the PID Act’s remit. This effectively limits the categories of persons who can obtain access to protections under the PID Act, including protection from reprisal actions such as unfair dismissal, if they make a disclosure.

52.                     These amendments would provide that the PID Act does not apply to the following persons or conduct:

•        people employed under the Members of Parliament (Staff) Act 1984 (Cth) (subsection 69(4), see item 88 of Part 7 of Schedule 1)

•        conduct classified as ‘personal work-related conduct’ (subsection 29(2A), see item 3 of Part 1 of Schedule 1)

•        grant recipients (subsection 30(4), see item 15 of Schedule 2).

Reasonable, proportionate and necessary to achieve a legitimate objective
People employed under the Members of Parliament (Staff) Act 1984

53.                     The PID Act was not originally intended to capture allegations of wrongdoing by or about parliamentarians or their staff members. It is structured under the assumption that a public official will have a clear reporting line for making an internal disclosure to an authorised officer, which can then be referred on to a principal officer (typically the agency head) for investigation.

54.                     As recognised in the Moss Review, the PID Act as currently drafted is ill-adapted to providing protections to parliamentarians and their staff, as it would not be clear upon whom the obligation to investigate disclosures would be bestowed, and it would impose a bureaucratic process upon political roles.

55.                     Based on these reasons, recommendation 26 of the Moss Review stated that this kind of wrongdoing is most suitably scrutinised by the Parliament itself. Excluding people employed under the MoP(S) Act from the PID Act’s scope is reasonable and necessary to ensure the PID Act operates as originally intended.

56.                     MoP(S) Act staff who disclose corruption issues to the NACC will have access to strong protections under the NACC Bill against reprisal and detriment for those disclosures. The Government will consider further protections for MoP(S) Act staff who report misconduct in the context of implementing the recommendations of the Set the Standard: Report on the Independent Review of Commonwealth Parliamentary Workplaces , including the establishment of the Independent Parliamentary Standards Commission.

Conduct classified as ‘personal work-related conduct’

57.                     Recommendation 5 of the Moss Review stated that the PID Act should be amended to focus on wrongdoing such as fraud, serious misconduct, and corrupt conduct in order to achieve its intended integrity and accountability aims.

58.                     Removing personal work-related conduct (such as bullying and harassment) from the PID Act is necessary to achieve the legitimate purpose of re-focusing the PID Act on integrity related wrongdoing. This approach is not to suggest that agencies should ignore other forms of wrongdoing or workplace conflict but recognises that the majority of personal work-related conduct is more appropriately dealt with through other processes, including existing dispute resolution processes within agencies.

59.                     This exclusion is also appropriately tailored and reasonable, as personal work-related conduct would still fall within the PID Act’s remit if it relates to a systemic issue or a reprisal action (as per recommendation 6 of the Moss Review). This ensures serious personal work-related conduct, such as terminating a staff member’s employment as punishment for making a disclosure, would still fall within the scope of the PID Act.

Grant recipients

60.                     As recognised in recommendation 30 of the Moss Review, grant recipients usually have an arms-length relationship to government and the Commonwealth public sector, in which they report on their delivery and outcomes, rather than working in close ongoing collaboration like contracted service providers often do. Further, the Commonwealth Grants Policy Framework already regulates the administration of grants by all non-corporate Commonwealth entities subject to the PGPA Act.

61.                     Accordingly, it is not appropriate for the PID Act to apply to grant recipients and this limitation on its scope is reasonable and proportionate.

The prohibition on retrospective offences or penalties, contained in article 15 of the ICCPR

62.                     Article 15 of the ICCPR prohibits retrospective criminal laws. Laws must not impose criminal liability for acts that were not criminal offences at the time they were committed, or impose greater punishments than those which would have been available at the time the acts were done.

63.                     The Bill would have a retrospective application insofar as conduct that can be the subject of a disclosure includes conduct that occurred before the commencement of the measures in the Bill.

64.                     Nevertheless, criminal liability imposed by the measures in the Bill would only apply to conduct that occurs after commencement. Accordingly, the Bill would not impose criminal liability for acts that were not criminal offences at the time they were committed and would not impose greater punishments than those which would have been available at the time the acts were done. Therefore, the Bill would not limit article 15 of the ICCPR.

Conclusion

65.                     The Bill would be compatible with human rights. To the extent that the measures in the Bill may limit human rights, each of those limitations are necessary, reasonable and proportionate.

 



Public Interest Disclosure Amendment (Review) Bill 2022

1.                    This section deals with a number of preliminary matters, including the commencement and general application of the Bill.

Clause 1—Short title

2.                    This clause would provide for the short title of the Act to be enacted by the Bill to be the Public Interest Disclosure Amendment (Review) Act 2022 .

Clause 2—Commencement

3.                    This clause would provide for the commencement of each provision in the Bill.

4.                    Clauses 1 to 3 of the Bill would commence on the day the Bill receives Royal Assent. This is a formality and would not enable any substantial operation of the Bill.

5.                    Schedules 1 to 3 of the Bill would commence on a single day to be fixed by Proclamation. This is necessary to ensure that changes to the public interest disclosure framework, including changes to the protections of disclosers and witnesses (Part 3 of Schedule 1), commence as soon as practicable and on or before the day on which the NACC commences operation in mid-2023.

6.                    If a provision of Schedules 1 to 3 does not commence with the 6-month period beginning on the day on which the Bill receives Royal Assent, it would commence on the day after the end of that period. A 6-month commencement period is appropriate to ensure that changes to the public interest disclosure framework commence as soon as practicable, while allowing time for agencies to undertake the necessary work to prepare for commencement of these provisions.

7.                    Schedule 4 of the Bill has four parts. Each of these parts has a different commencement time contingent on the timing of passage and commencement of the NACC Bill and the NACC Consequential Bill.

8.                    Part 1 of Schedule 4 would commence immediately before the commencement of Schedule 1 to the NACC Consequential Bill. Schedule 1 to the NACC Consequential Bill repeals and amends other Commonwealth legislation, including the PID Act, to support the establishment and operation of the NACC.

9.                    However, Part 1 of Schedule 4 would not commence at all if Schedule 1 to the NACC Consequential Bill commences before the commencement of the provisions in Schedules 1 to 3 of the Bill. This is appropriate given Part 1 of Schedule 4 of the Bill would repeal certain items contained in Schedule 1 to the NACC Consequential Bill that seek to amend the PID Act, which would not be necessary if the Bill commences before the NACC legislation. Where the items in the NACC Consequential Bill commence before Schedules 1 to 3 of the Bill, they would have already amended the PID Act meaning that Part 1 of Schedule 4 of the Bill would no longer be required. 

10.                Part 2 of Schedule 4 would commence immediately after the commencement of Schedules 1 to 3 of the Bill. However, Part 2 of Schedule 4 would not commence at all if Schedule 1 to the NACC Consequential Bill has not commenced before Schedules 1 to 3 of the Bill. This is appropriate as the amendments in Part 2 of Schedule 4 would only be required if the NACC legislation commences before the Bill.

11.                Part 3 of Schedule 4 would commence immediately after the commencement of Schedules 1 to 3 of the Bill or immediately after the commencement of section 40 of the NACC Bill, whichever is later. However, Part 3 of Schedule 4 would not commence at all if section 40 of the NACC Bill has not commenced. This is appropriate as Part 3 of Schedule 4 would amend the NACC Bill.

12.                Part 4 of Schedule 4 would commence immediately after the commencement of Schedules 1 to 3 of the Bill or immediately after the commencement of Schedule 1 to the NACC Consequential Bill, whichever is later. However, Part 4 of Schedule 4 would not commence at all if Schedule 1 to the NACC Consequential Bill has not commenced. This is appropriate as Part 4 of Schedule 4 would amend the PID Act to support the establishment and operation of the NACC.

13.                Subclause 2(2) would specify that information in column 3 of the table in this clause is not a part of the Bill. It would also provide that information may be inserted into column 3, or information within column 3 may be edited, in any published version of the Bill.  

Clause 3—Schedules

14.                This clause would enable legislation that is specified in a Schedule to the Bill to be amended or repealed as set out in the applicable items in the Schedule concerned, and would provide that any other item in a Schedule to the Bill has effect according to its terms.



 

1.27                 This Schedule would implement priority amendments to the PID Act by:

•        removing personal work-related conduct from the scope of disclosable conduct

•        improving the respective allocation and investigation processes for authorised officers and principal officers

•        strengthening protections for disclosers and witnesses

•        facilitating the reporting and sharing of information related to public interest disclosures

•        enhancing the oversight roles of the Ombudsman and the IGIS, and

•        specifying agencies, public officials and principal officers under the PID Act.

Public Interest Disclosure Act 2013

1.1                     This Part would make amendments to focus the PID Act on significant integrity wrongdoing, by removing personal work-related conduct from the scope of disclosable conduct under the PID Act.

Item 1—Section 8

1.2                     This item would insert a definition of personal work-related conduct into section 8 of the PID Act, which refers to new section 29A (see item 4 of Part 1 of Schedule 1).

Item 2—Paragraph 29(2)(b)

1.3                     This item would repeal the existing paragraph 29(2)(b) and substitute a new paragraph 29(2)(b) into the PID Act which would provide that conduct engaged by a public official, which could give reasonable grounds for disciplinary action, will only constitute disclosable conduct where such disciplinary action could result in termination of the official’s employment or engagement.

1.4                     Section 29 of the PID Act sets out the definition of disclosable conduct . Subsection (29)(1) sets out the kinds of conduct which is disclosable conduct for the purposes of the PID Act. Subparagraph 29(2)(b) of the Act currently provides that, without limiting the kinds of conduct listed in subsection 29(1) of the PID Act, disclosable conduct also includes any conduct that may result in disciplinary action against the public official.

1.5                     This item would have the effect of reducing the range of conduct which could be considered disclosable conduct under subsection 29(2) by increasing the threshold for subparagraph 29(2)(b) to disciplinary conduct that would, if proven, be reasonable grounds for termination or dismissal. This would implement recommendation 7 of the Moss Review.

Item 3—After subsection 29(2)

1.6                     This item would insert new subsection 29(2A) into the PID Act which would provide that despite the definition of disclosable conduct in subsections 29(1) and (2) of the PID Act, personal work-related conduct (defined in new section 29A, see item 4 of Part 1 of Schedule 1) is not disclosable conduct unless the conduct:

•        would constitute taking a reprisal against another person, or

•        is either of such significant nature it would undermine public confidence in, or has other significant implications for, an agency (or agencies).

1.7                     These exceptions would acknowledge that there may be instances of personal-work related conduct which should still be considered under the PID Act. For example, personal work-related conduct which relates to discriminatory employment practices or nepotism.

1.8                     This item, together with items 1 and 4 of Part 1 of Schedule 1, would implement recommendations 5 and 6 of the Moss Review, which recommended that personal employment-related grievances be excluded from the definition of disclosable conduct , unless it relates to systemic wrongdoing or constitutes reprisal action. Removing personal-work related conduct from the scope of the PID Act would enable the PID Act to focus on significant integrity wrongdoing. This approach is not to suggest that agencies should ignore other forms of wrongdoing or workplace conflict but recognises that other frameworks are better placed to deal with personal work-related conduct. For example, internal human resources processes or a Code of Conduct investigation may be a more appropriate vehicle for responding to an allegation of workplace harassment.

Item 4—After section 29

1.9                     This item would insert new section 29A into the PID Act which would define personal work-related conduct for the purposes of the PID Act. This item would support item 3 of Part 1 of Schedule 1, which would provide that personal work-related conduct is not disclosable conduct for the purposes of the PID Act, except in the circumstances specified in new subsection 29(2A).

1.10                 The definition of personal work-related conduct under new section 29A is based on a similar definition in section 1317AADA of the Corporations Act 2001 (Cth).

1.11                 Paragraph 29A(1)(a) and(b) would define personal work-related conduct as conduct, by act or omission, engaged in by a public official (the first official) in relation to a second public official that:

•        relates to the second official’s engagement, appointment and/or exercise of their functions or powers, and

•        is conduct that has, or would tend to have, personal implications for the second individual.

1.12                 The definition is not limited to conduct experienced directly by the discloser and would capture both of the following circumstances:

•        when the discloser is making a disclosure that has personal implications for themselves, and

•        when a disclosure is made that relates to conduct that has personal implications for another person.

1.13                 Whether conduct creates ‘personal implications’ would be determined objectively rather than subjectively.

1.14                 The note to section 29A would provide examples of the types of conduct that will satisfy the definition of personal work-related conduct , including: interpersonal conflict between public officials (such as bullying and harassment) and conduct relating to the terms and condition of engagement or appointment of a public official. These examples would be illustrative and are not intended to be an exhaustive statement of the types of conduct that could constitute personal work-related conduct.

1.15                 This item, together with item 3 of Part 1 of Schedule 1, would also implement in part recommendation 9 of the PJCIS Press Freedoms Report which recommended improving alignment between the public and private sector whistleblower regimes—a similar carve out for personal work-related grievances is included in the private sector whistleblowing scheme through the Corporations Act 2001 (see subparagraph 1317AADA) .

 

 



Part 2        Allocation and investigation of disclosures

Public Interest Disclosure Act 2013

2.1                     This Part would make improvements to the process for authorised officers’ handling and allocation of disclosures, and principal officers’ investigation of disclosures under the PID Act.

Item 5—Section 8

2.2                     This item would insert a definition of allocation into section 8 of the PID Act.

2.3                     This item would define allocation as both:

•        the allocation of the handling of a disclosure under section 43 of the PID Act, and

•        the reallocation of the handling of a disclosure as determined under section 45 of the PID Act.

2.4                     The example under the definition states that a reallocation under section 45 (as amended by item 13 of Schedule 1) may occur in response to a recommendation by the Ombudsman or the IGIS under section 55 (as inserted by item 34 of Schedule 1). This example has been included to illustrate the potential interaction of sections 45 and 55 and is not intended to cover the full range of scenarios where a reallocation may occur under section 45.

2.5                     This item would support other amendments at items 12-13, 31 and 34 of Part 2 of Schedule 1 that would enable a disclosure to be reallocated following a determination under section 45(1) or recommendation under section 55.

2.6                     This item would also insert a definition of another law or power into section 8 of the PID Act.

2.7                     This item would define and clarify that references to another law or power within the PID Act means:

•        a law of the Commonwealth (including procedures under such a law), other than the PID Act, or

•        the executive power of the Commonwealth.

2.8                     This item is related to items 18, 19, 23 and 33 of Parts 2 of Schedule 1 which substitute references to ‘a law of the Commonwealth’, ‘the executive power of the Commonwealth’ and ‘procedures established under another law of the Commonwealth’ with another law or power . The purpose of this substitution is to simplify these references through the use of the new defined term that more succinctly captures all of these matters.

Item 6—Section 8 (definition of completed )

2.9                     This item would insert ‘Division 2 of’ before ‘Part 3’ to the definition of completed in section 8 of the PID Act. This is a technical amendment to make it clearer that the definition of completed appliesto Division 2 of Part 3 of the PID Act.

Item 7— Section 8 (paragraph (a) of the definition of disclosure investigation )

2.10                 This item would insert ‘Division 2 of’ before ‘Part 3’ to paragraph (a) of the definition of disclosure investigation in section 8 of the PID Act.

2.11                 This is a technical amendment to make it clearer that the reference to investigation in paragraph (a) of the definition of disclosure investigation refers to an investigation under Division 2 of Part 3 of the PID Act.

Item 8—Section 8 (definition of investigate )

2.12                 This item would omit ‘to (4)’ and substitute this reference with ‘and (3)’ in the definition of investigate in section 8 of the PID Act.

2.13                 This is a technical amendment to reflect amendments to section 47 of the PID Act by item 18 of Part 2 of Schedule 1.

Item 9—Section 8 (definition of suspected disclosable conduct )

2.14                 This item would remove the defined term suspected disclosable conduct from section 8 of the PID Act to simplify relevant provisions of the Act and avoid unnecessary complexity.

2.15                 The current definition of suspected disclosable conduct under section 8 of the PID Act provides that it has the meaning given by subparagraph 43(3)(a)(i). Subparagraph 43(3)(a)(i) provides that suspected disclosable conduct is ‘some or all of the disclosable conduct with which the information may be concerned’.

2.16                 The use of the term suspected disclosable conduct suggests that a threshold of being ‘suspected’ to be disclosable conduct must be satisfied, however this threshold is not part of the definition itself.

2.17                 Items 11, 19 and 21 of Part 1 of Schedule 1 would substitute references to suspected disclosable conduct in the PID Act with the more neutral concept of ‘conduct disclosed’ as, for the purposes of determining the appropriate agency to investigate the disclosure, the nature of the conduct is not relevant; only where it takes place.

Item 10—Subsection 26(1) (table item 2, column 3, subparagraphs (c)(i), (ii), and (iii))

2.18                 This item would insert ‘Division 2 of’ before ‘Part 3’ (wherever occurring) in subsection 26(1) (table item 2, column 3, subparagraphs (c)(i), (ii), and (iii)) of the PID Act.

2.19                 This item is a technical amendment to make it clearer that the reference to an investigation relating to an internal disclosure under Part 3 in subsection 26(1) (table item 2, subparagraphs (c)(i), (ii), and (iii)) refers to an investigation under Division 2 of Part 3 of the PID Act.

Item 11—Sections 43 and 44

2.20                 This item would repeal sections 43 and 44 of the PID Act and substitute new sections 43, 44 and 44A.

2.21                 Section 43 of the PID Act provides that an authorised officer must allocate the handling of a disclosure to one or more agencies and sets out requirements for the authorised officer in deciding how to allocate the disclosure. Section 44 of the PID Act sets out the notice requirements of an authorised officer in relation to an allocation decision.

New section 43—Allocation of disclosure—decision by authorised officer

2.22                 This item would insert a new section 43 which redrafts section 43 of the PID Act to make it easier to follow and improve the process of allocation of disclosures by authorised officers.

•        New subsection 43(1) would clarify when a person will be a ‘discloser’ for the purposes of the section, by providing that section 43 would apply when a discloser makes a disclosure to an authorised officer, or their supervisor, who then provides that information to an authorised officer (see item 59 of Part 3 of Schedule 1).

•        New subsection 43(2) would similarly clarify the scope of allocation decisions and previous allocation decisions under this section by providing that section 43 would apply where a decision has not yet been made about an allocation , or a decision has been made under section 45 to reallocate a disclosure. The proposed example to subsection 43(2) would confirm that a reallocation decision may occur following a recommendation made by the Ombudsman or the IGIS under section 55 (see item 34 of Part 2 of Schedule 1).

•        New subsection 43(3) would provide that an authorised officer must allocate the disclosure to one or more agencies unless subsection 43(4) would apply. The proposed note to subsection 43(3) would clarify that the authorised officer who allocates the disclosure need not be the same authorised officer who received the disclosure.

•        New subsection 43(4) would apply if the authorised officer is satisfied on reasonable grounds that there is no reasonable basis on which the disclosure could be considered an internal disclosure (as defined in existing section 26 of the PID Act) or the conduct disclosed would be more appropriately investigated under another law or power. Paragraph 43(4)(a) would replicate existing subsection 43(2) of the PID Act. Paragraph 43(4)(b) would provide the authorised officer with a new discretion to not allocate a disclosure where an investigation under another law or power of the Commonwealth would be more appropriate.

-       This item is intended to provide agencies with flexibility to divert disclosures outside of the PID Act where they would be better addressed through alternative investigative mechanisms (for example, by the IGIS under the IGIS Act , or by the Inspector-General for Taxation under the Inspector-General of Taxation Act 2003 (Cth)).

-       This item would implement recommendation 31 of the Moss Review, which recommended that principal officers be provided with discretion not to investigate a disclosure where it would be more appropriately investigated under another law or power.

-       This item would support disclosures being dealt with in a more expedient manner, as it would allow the relevant conduct to be referred to the more appropriate investigative mechanism at the allocation stage, rather than having to wait until the investigation stage to make such a referral.

-       Protections for disclosers provided by the PID Act in relation to the disclosure would not be removed as a result of any decision to not investigate under the PID Act, as these are based on the disclosure being a ‘public interest disclosure’ and not the mechanism under which the disclosure is investigated.

-       Mandatory obligations for authorised officers under the NACC Bill to refer disclosures which they suspect raise serious or systemic corrupt conduct to the NACC would not, of itself, be a reasonable basis to exercise this new discretion. This is because the NACC would not be required to investigate any referral it receives, so the authorised officer could not be certain that the referral would result in investigation of the disclosure.

•        New subsection 43(5) would outline the considerations an authorised officer is required to have regard to when determining where to allocate a disclosure. This would expand the considerations set out in existing subsection 43(3) of the PID Act to include whether the allocation may be within the same portfolio (new subparagraph 43(5)(b)(i)) or any recommendation of the Ombudsman or IGIS under section 55 about the allocation of the disclosure (new subparagraph 43(5)(b)(ii)). This item would also use the more neutral concept of ‘conduct disclosed’ as outlined at item 9 of Part 2 of Schedule 1, instead of suspected disclosable conduct which is used in existing subsection 43(5).

•        New subsection 43(6) would require an authorised officer to consider whether their obligations in section 60(1) have been satisfied before making an allocation decision. The obligations at subsection 60(1), as amended by items 55 to 57 of Part 2 of Schedule 1, require the authorised officer to:

-       inform the discloser that the disclosure could be treated as an internal disclosure for the purposes of this Act

-       explain the consequences of making the disclosure

-       advise the individual about the circumstances (if any) in which a public interest disclosure must be referred to an agency , or other person or body, under another law of the Commonwealth, and

-       advise the individual of any orders or directions of which the authorised officer is aware that are designated publication restrictions that may affect disclosure of the information.

•        New subsection 43(7) would replicate existing section 43(3A) of the PID Act with minor amendments to update the drafting. New subsection 43(7) would continue to mandate that an authorised officer must not allocate a disclosure to the IGIS if the disclosure relates to action taken by an examiner of the ACIC in their performance of those functions.

•        New subsection 43(8) would enable an authorised officer to allocate the disclosure to another agency in the same portfolio if the authorised officer is satisfied that the other agency is better able to handle that disclosure. This amendment would implement recommendation 14 of the Moss Review by enabling smaller agencies to refer a disclosure to a portfolio department if they consider that, in their particular circumstance, they are unable to perform their obligations under the PID Act. The proposed note to new subsection 43(8) would clarify that, consistent with new subsection 43(9), an allocation will only be able to occur between two agencies when the receiving agency consents to the allocation . However, investigative agencies (such as the Ombudsman and the IGIS) would be able to allocate the disclosure following consultation with the recipient agency .

•        New paragraph 43(9)(a) would provide that where the authorised officer belongs to an investigative agency , such as the Ombudsman or the IGIS, the authorised officer may allocate the disclosure to an agency other than the recipient agency only if the authorised officer has consulted with an authorised officer in the agency to which the disclosure is to be allocated. New paragraph 43(9)(b) would replicate existing subsection 43(6) of the PID Act to provide that an authorised officer in any other case may only allocate a disclosure to an agency other than the recipient agency if the authorised officer in the agency to which the disclosure is to be allocated has consented to the allocation . The distinction recognises that investigative agencies have the necessary expertise to assess where the disclosure is most appropriately allocated, and supports their role under the PID Act to oversee and scrutinise agencies’ handling of disclosures.  

•        New subsection 43(10) would replicate existing subsection 43(4) of the PID Act with minor amendments to update the drafting. New subsection 43(10) would provide that the authorised officer may obtain information and make enquiries as they see fit, for the purposes of making a decision about the allocation of a disclosure. The proposed note to new subsection 43(10) would clarify that such information gathering at the allocation stage is only to be done for the purpose of the allocation (including deciding whether to allocate or not to allocate) and not for the purposes of considering the veracity of the disclosed conduct. This recognises that an authorised officer does not need to definitively determine that conduct disclosed is ‘disclosable conduct’ in order to allocate the disclosure to an agency . Existing section 47 provides that it is the responsibility of the principal officer to investigate whether or not there is disclosable conduct.

•        New subsection 43(11) would provide that, consistent with existing subsection 43(5) of the PID Act, an authorised officer must use their best endeavours to allocate a disclosure within 14-days of either receiving of the disclosure or, where applicable, receiving a recommendation by the Ombudsman or IGIS under proposed section 55 (as inserted by item 34 of Part 2 of Schedule 1). New subsection 43(11) also clarifies when the 14-day timeframe commences, which is the day after either:

-       if no previous decision has been made about the allocation , the day the disclosure is made or given to an authorised officer, or

-       if the allocation decision is made following the reconsideration of a previous decision about the allocation in response to a recommendation from the Ombudsman or the IGIS under new section 55 (as inserted by item 34 of Part 2 of Schedule 1), the day the principal officer of the recipient agency receives the recommendation under that section.

New section 44—Allocation of disclosure—notice of decision to allocate

2.23                 This item would insert a new section 44 which redrafts existing section 44 of the PID Act to set out more clearly the notice requirements on authorised officers when allocating a disclosure under new section 43 of the PID Act (as amended by item 11 of Part 2 of Schedule 1).

•        New subsection 44(1) would clarify that section 44 applies to an authorised officer when allocating a disclosure under paragraph 43(3)(a).

•        New subsections 44(2) and 44(3) would replicate the substance of existing subsections 44(1) and 44(1A) of the PID Act to require the authorised officer to give written notice as soon as reasonably practicable to the principal officer of each agency to which the disclosure is allocated, and to the Ombudsman or the IGIS (for intelligence agencies or the ACIC or AFP in relation to that agency’s intelligence functions) of the following information:

-       the allocation to the agency

-       the information that was disclosed

-       the conduct disclosed (per item 9 of Part 2 of Schedule 1), and

-       the discloser’s name and contact details, if these details are known to the authorised officer and the discloser consents to the above persons and agencies being informed.

•        New subsection 44(4) would require the authorised officer to give a copy of the notice under new subsection 44(2) to the discloser as soon as reasonably practicable. This represents a minor change from existing subsections 44(2) and (4) by requiring notice to be given to the discloser as soon as reasonably practicable. New subsection 44(4) would also require the authorised officer to give a copy of the notice under subsection 44(2) only if it is reasonably practicable to do so. This is consistent with existing subsection 44(4) of the PID Act and recognises that there may be circumstances where it is not possible to notify the discloser. For example, the discloser’s name and contact details may not be known to the authorised officer or an agency may be otherwise restricted from contacting the discloser.

New section 44A—Allocation of disclosure—decision not to allocate

2.24                 This item would introduce a new section 44A which would outline the obligations on authorised officers following a decision not to allocate a disclosure under new paragraph 43(3)(b) of the PID Act (as amended by item 11 of Part 2 of Schedule 1).

•        Subsection 44A(1) would clarify that section 44A applies to an authorised officer where they decide not to allocate a disclosure under proposed paragraph 43(3)(b).

•        Subsection 44A(2) would provide that if an authorised officer is satisfied on reasonable grounds that the conduct disclosed would be more appropriately investigated under another law or power, the authorised officer must, as soon as reasonably practicable, take reasonable steps to:

-       refer the conduct disclosed for investigation under the other law or power, or

-       facilitate the referral of the conduct disclosed for investigation under another law or power.

•        The steps taken to facilitate a referral may include providing the discloser with the contact details for making a complaint under the more appropriate relevant law or power, and providing the discloser with any forms or background information necessary to make the complaint under that other law or power. What constitutes reasonable steps to facilitate a referral would depend on the individual circumstances, noting that there may be circumstances where a complaint under the other law or power must be made by the discloser.

•        Paragraph 44A(3)(a) would provide that the authorised officer must give written notice to the discloser as soon as reasonably practicable after a decision is made not to allocate a disclosure. That notice must include the reason for not allocating a disclosure, and ‘the details of any action taken or proposed to be taken’ to refer a disclosure to another law or power (or to facilitate such a referral) if the authorised officer has taken (or proposes to take) action under subsection 44A(2).

•        Paragraphs 44A(3)(b) and (c) would require the authorised officer to notify the Ombudsman or the IGIS (as appropriate) of the decision not to allocate the disclosure, the reasons for not allocating, whether the authorised officer has taken (or proposes to take) action to refer a disclosure for investigation through another investigative mechanism, or to facilitate such a referral, and the details of such action. This requirement is intended to provide the Ombudsman or the IGIS with oversight of the extent to which authorised officers are using the discretion to not allocate on the basis of a more appropriate investigative mechanism.

•        Subsection 44A(4) would specify the details which must be included in relation to action taken or proposed to be taken by the authorised officer in a notice required under proposed subsection 44A(3). These details include notifying the discloser of what the other relevant law or power is, the agency or body to which the conduct has been or is to be referred, and the steps taken (or proposed to be taken) for the conduct to be referred or to facilitate its referral.

Item 12—Section 45 (heading)

2.25                 This item would repeal the existing heading of section 45 ‘Subsequent allocations’ and substitute with ‘Reallocation of disclosures’. This is a technical amendment to ensure the heading accurately reflects the substance of the section as amended by item 13 of Schedule 1.

Item 13—Section 45(1)

2.26                 This item would repeal existing subsection 45(1) of the PID Act and substitute new subsection 45(1) which provides that the authorised officer may, following an original allocation decision, reallocate the disclosure to one or more agencies.

2.27                 This item would be a technical amendment to more clearly distinguish between the allocation and reallocation of a disclosure. This would complement the proposed reallocation of disclosures in items 5, 13, 31 and 34.

Item 14—Subsection 45(2)

2.28                 This item would omit the reference to ‘[s]ubsections 43(3) to (6)’ and substitute with ‘[s]ubsections 43(5) to (11)’.

2.29                 This item would be a technical amendment to reflect amendments to section 43 of the PID Act by item 11 of Part 2 of Schedule 1.

Item 15—At the end of Division 1 of Part 3

2.30                 This item would insert new section 45A into the PID Act which outlines the requirements on intelligence agencies and agencies with intelligence functions to provide notice to the IGIS in the course of handling a disclosure.

2.31                 This item would require an authorised officer of an intelligence agency to provide a disclosure to the IGIS as soon as reasonably practicable and in any case within one business day if the discloser states the disclosure is urgent. Otherwise, the disclosure must be provided to the IGIS within 14 days.

•        Subsection 45A(1) would clarify that section 45A applies to an authorised officer where they receive a disclosure related to an intelligence agency , or the ACIC or the AFP in relation to their intelligence functions. Under the PID Act, the IGIS is an authorised internal recipient of disclosures that relate to action taken by the ACIC or the AFP in relation to their intelligence functions (section 34), and can investigate complaints about how such disclosures have been handled. Including disclosures relating to the ACIC or AFP in relation to their intelligence functions in this item would therefore reflect the existing approach to such disclosures under the PID Act. Other items in the Bill that refer to disclosures relating to the ACIC or the AFP in relation to their intelligence functions also reflect the role of the IGIS in relation to such disclosures.

•        Subsection 45A(2) would provide that where a discloser declares to the authorised officer that the disclosure is urgent, the authorised officer must, as soon as reasonably practicable and in any case within one business day of receipt of the disclosure, give written notice to the IGIS of:

-       the disclosure

-       the relevant agency

-       the declaration of urgency

-       the information and conduct disclosed

-       if known and the discloser consents, the discloser’s name and contact details.

•        The requirement to provide written notice within one business day would be engaged on the basis of the discloser’s declaration of urgency, not the assessment of the authorised officer. Urgency should be understood by its plain English meaning. Examples of a disclosure of an urgent nature may include disclosures which are time-critical and/or where there is an immediate threat to life or safety.

•        Subsection 45A(3) would provide that where the discloser does not declare the disclosure as urgent, the authorised officer must give written notice of the matters mentioned in paragraphs (2)(a), (b), (d), (e) and (f) to the IGIS within 14 days.

•        Subsection 45A(4) would provide that the principal officer of an agency to which a disclosure is allocated give regular written updates to the IGIS during the 90-day investigation period on:

-       the progress of the disclosure investigation

-       the anticipated timeframe for the completion of the disclosure investigation

-       the likelihood of needing any extensions to complete the investigation.

•        It is expected that the frequency of required updates under the section would be settled on a case-by-case basis through discussions between the IGIS and the relevant agency .

2.32                 This item would implement recommendation 10 of the PJCIS Press Freedom Report, subject to a minor modification. Subsection 45A(2) would implement the first part of recommendation 10 of the PJCIS Press Freedom Report by ensuring that urgent disclosures are escalated appropriately by intelligence agencies to the IGIS. However, it would require the authorised officer to give written notice to the IGIS of an urgent disclosure as soon as reasonably practicable, and in any case, within 1 business day. This is instead of ‘within 24 hours’ as recommended in the report. This modification would allow for circumstances where there may be practical obstacles preventing an intelligence agency being able to notify the IGIS within 24 hours. For example, where a disclosure has been made on a Friday evening, or on the weekend, or when access is required to classified systems to review a disclosure. A ‘business day’ is defined in section 2B of the Acts Interpretation Act 1901 as ‘a day that is not a Saturday, a Sunday or a public holiday in the place concerned’.

2.33                 Subsection 45A(4) would implement the second part of recommendation 10 of the PJCIS Press Freedoms Report by requiring that the agency maintain contact with the IGIS during the investigation period. The report noted that, as the PID Act does not permit external disclosures of intelligence information, intelligence agencies should be required to consult regularly with the IGIS on these matters to ensure appropriate oversight. More frequent reporting to the IGIS on the progress and anticipated timing of a disclosure investigation would help improve the timeliness and transparency of investigations of these disclosures.

Item 16—Subsection 47(1)

2.34                 This item would omit ‘the handling of’ from subsection 47(1) of the PID Act, as these words are not required.

Item 17—Paragraph 47(2)(b)

2.35                 This item would repeal existing paragraph 47(2)(b) of the PID Act and substitute new paragraph 47(2)(b) which provides that where a principal officer is satisfied on reasonable grounds that information obtained during a disclosure investigation is tangential or remote to the original disclosure, the information need not be investigated as part of the original disclosure investigation.

2.36                 This item would also include two notes to paragraph 47(2)(b) to clarify that:

•        a disclosure may be reinvestigated in response to a recommendation by the Ombudsman or the IGIS under proposed new section 55 (as inserted by item 34 of Part 2 of Schedule 1)

•        if the principal officer decides not to investigate the tangential or remote information during the existing investigation, the principal officer may choose to investigate the information through an alternative mechanism such as a Code of Conduct investigation.

2.37                 This amendment would address circumstances where a disclosure investigation continues to unearth information that is not directly relevant to the original disclosure, which would require the principal officer to continue investigating and prevent the discloser from obtaining closure through the completion of the disclosure investigation. This item would enable the principal officer to finalise the disclosure and provide the disclosure investigation report to the discloser sooner than they otherwise might be able to.

Item 18—Subsections 47(3) and (4)

2.38                 This item would repeal and substitute existing subsections 47(3) and 47(4) of the PID Act with a new subsection 47(3).

2.39                 New subsection 47(3) replicates existing subsection 47(3) with minor amendments as a consequence of item 5 of Part 2 of Schedule 1. New subsection 47(3) would provide that for the purposes of subsection 47(2) (which defines investigate in relation to a disclosure), an investigation (or reinvestigation) may include consideration of whether a different investigation (or reinvestigation) should be conducted by the agency , or another body, under another law or power .

2.40                 Existing subsection 47(4) of the PID Act clarifies that for the purposes of subsection 47(3), procedures established under a law of the Commonwealth (other than the PID Act) were to be taken as a law of the Commonwealth. As another law or power would be defined in section 8 of the PID Act under item 5 of Part 2 of Schedule 1 to include other laws of the Commonwealth and procedures under such laws, existing subsection 47(4) of the PID Act would no longer be required.

Item 19—Paragraphs 48(1)(e) to (h)

2.41                 This item would repeal and substitute existing paragraphs 48(1)(e) to (h) to clarify and create additional grounds for a principal officer to exercise their discretion to not investigate, or to stop investigating, a disclosure.

2.42                 Currently, paragraphs 48(1)(e) to (h) of the PID Act provide principal officers with the discretion not to investigate, or to stop investigating:

•        information which has been, or is being, investigated as a disclosure investigation

•        conduct which has been or is being investigated under another law or power or the executive power of the Commonwealth, where the principal officer is satisfied on reasonable grounds that it would be inappropriate to conduct a simultaneous investigation, and

•        a disclosure which the discloser, an authorised officer of the agency or an authorised officer of another agency has advised the principal officer that the discloser no longer wishes to be investigated, and the principal officer is reasonably satisfied that no further matters warrant investigating.

2.43                 This item would redraft existing paragraph 48(1)(e) to clarify that a principal officer may exercise their discretion to not investigate or stop investigating if a substantially similar previous disclosure was not investigated for a reason under this subsection. For completeness, proposed subparagraph 48(1)(e)(ii) would maintain the discretion provided by existing paragraph 48(1)(e) that enables a principal officer to not investigate, or further investigate, information that is the same, or substantially the same, as information that has been previously disclosed and that previous disclosure has been, or is being, investigated as a disclosure investigation. This would remove uncertainty around the scope of current paragraph 48(1)(e) and in particular, whether this paragraph enables a principal officer to end an investigation if a substantially similar disclosure was not investigated under subsection 48(1).

2.44                 This item would broadly replicate existing paragraph 48(1)(f) but inserts a requirement for the principal officer to be ‘satisfied, on reasonable grounds,’ that a simultaneous PID Act investigation would be inappropriate in light of the alleged conduct being investigated through another mechanism. This item would align paragraph 48(1)(f) to current paragraphs (g) and (h), which require the principal officer to be reasonably satisfied of certain matters before exercising their discretion not to investigate. It is appropriate that principal officers should be subject to the same threshold of satisfaction in exercising the discretion in paragraph 48(1)(f), as when exercising their discretions under existing paragraphs 48(1)(g) and 48(1)(h). As another law or power would be defined in section 8 of the PID Act under item 5 of Part 2 of Schedule 1 to include the executive power of the Commonwealth, existing subparagraph 48(1)(f)(ii) of the PID Act would be removed due to redundancy.

2.45                 This item would broadly replicate existing paragraph 48(1)(g) but amends the satisfaction requirement on principal officers to be ‘satisfied, on reasonable grounds’ that there are no further matters concerning the conduct that warrant investigation. To ensure consistency, this item would align the onus on principal officers to proposed amended paragraph 48(1)(f) and with references elsewhere in the PID Act to the standard of belief or satisfaction on ‘reasonable grounds’. For the same reason as paragraph 48(1)(f) existing subparagraph 48(1)(g)(ii) of the PID Act would be removed due to redundancy, as another law or power would be defined in section 8 of the PID Act under item 5 of Part 2 of Schedule 1.

2.46                 This item would introduce a new discretion through proposed paragraph 48(1)(ga) to not investigate, or end an investigation, where the principal officer considers, on reasonable grounds, that the alleged conduct would be more appropriately investigated under another law or power. This item would implement recommendation 31 of the Moss Review. This item would mirror the proposed subsection 43(4) that enables authorised officers to decide not to allocate a disclosure in certain circumstances (as amended by item 11 of Part 2 of Schedule 1).

•        A principal officer who exercises this proposed discretion to not investigate, or to end an investigation, must refer the conduct disclosed or facilitate its referral for investigation under that other law or power (see item 26 of Part 2 of Schedule 1).

•        The principal officer should only exercise this discretion where the alternative process is more appropriate than an investigation under the PID Act.

•        Where a principal officer has exercised their discretion not to investigate and if they have taken action, or propose to take action, in relation to the referral of the disclosure for investigation under another law or power, the principal officer would be required to notify the discloser (see item 24 of Part 2 of Schedule 1), and the Ombudsman or the IGIS as appropriate, of relevant details ( see existing section 50A of the PID Act as amended by items 25 and 26 of Part 2 of Schedule 1).

•        The mandatory referral obligations on principal officers under the NACC Bill to refer disclosures to the NACC which they suspect raise serious or systemic corrupt conduct are not of themselves a basis to exercise this proposed new discretion. This recognises the effect of section 39 of the NACC Bill that agencies should continue to investigate a disclosure, even where a referral has been made to the NACC, unless the NACC issues a stop action direction in relation to the disclosure. This would also reflect the fact that the NACC is not required to investigate a referral, and therefore the principal officer should not cease investigating on the assumption that the NACC would, in fact, investigate the referred conduct. This approach ensures that the PID Act investigation of the disclosure can otherwise continue in a timely manner.

2.47                 This item would amend paragraph 48(1)(h) to clarify that a discloser is permitted to notify the principal officer of an agency (including an agency other than the agency which has been allocated the disclosure for investigation, such as the agency to which the discloser belongs) that the discloser does not want to pursue an internal investigation. This item would also extend notice pathways for the discloser under paragraph 48(1)(h) to allow the discloser to inform an authorised officer, as well as the principal officer, that they do not wish the internal disclosure investigation to be pursued. This amendment would acknowledge circumstances where a discloser may prefer to notify an authorised officer of their desire to not pursue an internal investigation rather than a principal officer. Under this item, it would still be a matter for the principal officer of the agency to be satisfied on reasonable grounds that there are no matters warranting investigation.

2.48                 Protections for disclosers provided by the PID Act in relation to the disclosure would not be removed as a result of any decision to not investigate under the PID Act, as these are based on the disclosure being a ‘public interest disclosure’ and not the mechanism under which the disclosure is investigated.

Item 20—Subsection 48(3)

2.49                 This item would repeal existing subsection 48(3) of the PID Act.

2.50                 Subsection 48(3) is no longer required as a consequence of the amendment at item 5 of Part 2 of Schedule 2, which would define another law or power at section 8 of the PID Act as meaning a law of the Commonwealth (including procedures under such a law) other than the PID Act or the executive power of the Commonwealth. References to these matters in existing subsection 48(3) of the PID Act would therefore be redundant.

Item 21—Paragraph 49(3)(a)

2.51                 This item would omit the words ‘suspected disclosable conduct’ and substitute this reference with ‘conduct disclosed’ in paragraph 49(3)(a) of the PID Act, to reflect the amendment at item 9 of Part 2 of Schedule 1.

2.52                 As noted at item 9 of Part 2 of Schedule 1, the use of the term suspected disclosable conduct suggests that a threshold of being ‘suspected’ to be disclosable conduct must be satisfied, however this threshold is not part of the definition itself. References to suspected disclosable conduct in the PID Act would be substituted with the more neutral concept of ‘conduct disclosed’ as, for the purposes of determining the appropriate agency to investigate the disclosure, the nature of the conduct is not relevant; only where it takes place.

Item 22—Subsections 50(1), (1A) and (2)

2.53                 This item would omit ‘inform’ and substitute with ‘give written notice to’ in subsections 50(1), (1A) and (2) of the PID Act.

2.54                 This item is a technical amendment which would provide clarity to agencies on their obligations to provide notice to relevant parties by specifying that any such notice must be in writing.

Item 23—Paragraph 50(2)(b)

2.55                 Section 50 of the PID Act details the notice requirements on a principal officer following a decision to investigate or not investigate a disclosure under the PID Act.

2.56                 Existing paragraph 50(2)(b) provides that where a principal officer has exercised their discretion to not investigate, or stop investigating, a disclosure under sections 48 or 49 of the PID Act, the principal officer must inform the discloser of other courses of action available to the discloser under Commonwealth laws.

2.57                 This item would repeal existing paragraph 50(2)(b) of the PID Act and substitute a new paragraph 50(2)(b) which defines the notice requirements on principal officers where a principal officer has taken action, or proposes to take action, under proposed section 50AA (see item 25 of Part 2 of Schedule 1). This item would require the principal officer to notify the discloser of:

•        the other law or power

•        the agency , person or body to which the disclosure has been, or is to be, referred, and

•        any steps taken, or proposed to be taken, to refer the disclosure.

2.58                 Per the amendments at item 23, the notification would be given in writing.

2.59                 The removal of the existing requirement on principal officers to inform the discloser of other courses of action available to the discloser under Commonwealth laws is appropriate when read in conjunction with item 25 of Part 2 of Schedule 1. Rather than the conduct disclosed being referred back to the discloser following a decision not to investigate or to stop investigating under section 48, new section 50AA (as inserted by item 25 of Part 2 of Schedule 1) would keep the onus on the principal officer to take reasonable steps to refer, or facilitate the referral of, conduct disclosed when a more appropriate law or power has been identified. The discloser no longer needs to take, or be informed of, other courses of action as the matter remains ongoing and its referral is facilitated as a mandatory requirement under the PID Act. 

Item 24—Subsection 50(4)

2.60                 This item would repeal, but broadly replicate, existing subsection 50(4) of the PID Act to clarify that the principal may notify a discloser of matters required by section 50 of the PID Act in the copy of the notice provided to the discloser by an authorised officer under proposed subsection 44(4) (see item 11 of Part 2 of Schedule 1).  

2.61                 This item is a technical amendment to reflect amendments to section 44 of the PID Act made by item 11 of Part 2 of Schedule 1.

Item 25—After section 50

2.62                 This item would insert new section 50AA to the PID Act. New proposed section 50AA would require a principal officer to, as soon as reasonably practicable, take reasonable steps to refer, or facilitate the referral of, conduct disclosed for investigation under another other law or power where the principal officer has:

•        ended a disclosure investigation under section 48, and

•        does not investigate the disclosure under a separate investigative power (per section 49 of the PID Act), and

•        is satisfied on reasonable grounds that the conduct is more appropriately investigated under another law or power.

2.63                 This item would not be limited to proposed paragraph 48(1)(ga) (see item 19 of Part 2 of Schedule 1) as it can be used when any of the discretions in subsection 48(1) are exercised.

2.64                 Reasonable steps to refer conduct or facilitate a referral of conduct may include providing the discloser with the contact details for making a complaint under the more appropriate relevant law or power, and providing the discloser with any forms or background information necessary to make the complaint under that other law or power. What constitutes reasonable steps to facilitate a referral will depend on the individual circumstances, noting that there may be circumstances where a complaint under the other law or power must be made by the discloser.

2.65                 This item would supplement proposed paragraph 48(1)(ga) (see item 19 of Part 2 of Schedule 1) and paragraph 50(2)(b) (see item 23 of Part 2 of Schedule 1), implementing recommendation 31 of the Moss Review and further supporting the discloser by placing an onus on principal officers to support the referral of the conduct disclosed. This would provide the discloser with greater assurance that the principal officer is taking action to ensure their disclosure is appropriately handled (under a more appropriate investigative framework).

Item 26—Subsections 50A(1) and (2)

2.66                 This item would omit ‘inform’ and substitute these references with ‘, as soon as reasonably practicable, give written notice to’ in subsections 50A(1) and (2) of the PID Act.

2.67                 This item is a technical amendment which would provide clarity to agencies on their obligations to provide notice to the Ombudsman or the IGIS, as relevant, by specifying that any such notice must be in writing and must be given as soon as reasonably practicable.

Item 27—At the end of section 50A

2.68                 Current section 50A of the PID Act details the notice requirements on a principal officer to inform the Ombudsman or the IGIS of a decision not to investigate.

2.69                 This item would insert additional subsection 50A(3) to section 50A of the PID Act which requires principal officers to include in the notice provided to the Ombudsman or the IGIS (as appropriate) under subsection 50A(1) or 50A(2), the following details:

•        whether the principal officer has taken, or proposes to take, action under proposed section 50AA in relation to the referral of the conduct disclosed for investigation under another law or power (see item 25 of Part 2 of Schedule 1)

•        if the principal officer has taken, or proposes to take such action: details of the other law or power; the agency , person or body to which the disclosure has been, or is to be, referred; and any steps taken, or proposed to be taken, to refer the disclosure.

2.70                 For consistency, this item would largely mirror the proposed notification requirements on a principal officer to a discloser (see item 23 of Part 2 of Schedule 1).

Item 28—Subsection 51(4)

2.71                 Existing subsection 51(4) of the PID Act requires that the principal officer must, within a reasonable time after preparing a disclosure investigation report under subsection 51(2), provide a copy of the report to the discloser.

2.72                 This item would repeal and redraft subsection 51(4) of the PID Act to require a principal officer to, within a reasonable period of time, provide written notice of the completion of the investigation and a copy of the disclosure investigation report to the discloser, if reasonably practicable, and as a new requirement, to the Ombudsman or the IGIS, as relevant.

2.73                 This item would implement recommendation 3 of the Moss Review by requiring a principal officer to provide the Ombudsman or the IGIS with a copy of the investigation report within a reasonable period of time. The Moss Review considered that this measure would inform the Ombudsman’s or the IGIS’ existing oversight role to scrutinise and monitor agency procedures, as the information provided to the Ombudsman or the IGIS would assist them in determining whether to intervene in an agency’s decision-making to protect an individual or remedy an error.

2.74                 While this item is intended to enhance the ability for the Ombudsman and the IGIS to provide effective oversight of agencies’ PID processes, it does not require the Ombudsman or the IGIS to review every disclosure investigation report received.

2.75                 This item is not intended to limit the circumstances in which a disclosure report may be shared. The proposed note to new subsection 51(4) would clarify that the disclosure investigation report may be shared with another agency if the investigation concerns conduct related to that other agency . The proposed note also provides that amended section 65 (see item 63 of Part 4 of Schedule 1) may authorise such sharing, but does not limit the extent to which the sharing may be authorised or permitted under law.

Item 29—Subsection 51(5)

2.76                 This item would omit ‘[h]owever, the’ and substitute this reference with ‘[t]he’ in subsection 51(5) of the PID Act.

2.77                 This item would be a minor technical amendment to reflect current drafting practices.

Item 30—Subsection 51(6)

2.78                 Existing subsection 51(6) provides that a principal officer does not need to provide a copy of the disclosure report to the discloser, within a reasonable period of time, if contacting the discloser is not reasonably practicable.

2.79                 This item would repeal existing subsection 51(6) of the PID Act as the matters in that subsection would be addressed in proposed section 51(4) at item 28 of Part 2 of Schedule 1.

2.80                 Item 30 would insert new subsection 51(6) to provide a principal officer with the discretion to remove from a disclosure investigation report provided to the Ombudsman or the IGIS (see item 28 of Part 2 of Schedule 1) any material that:

•        is likely to enable identification of the discloser or another person, or

•        any information that would contravene a designated publication restriction (as defined in existing PID Act section 8).

2.81                 This discretion is appropriate as it is limited to restrictions on information-sharing that appear elsewhere throughout the PID Act. It is appropriate that principal officers can delete these categories of information from investigation reports to ensure they comply with provisions of the PID Act that limit the sharing of identifying information and do not contravene a designated publication restriction . The discretion for principal officers to remove information from a copy of an investigation report does not extend to other types of information.

Item 31—Subsection 52(1)

2.82                 This item would repeal and substitute current subsection 52(1) of the PID Act to reflect the new circumstances in which an investigation can be said to start.

2.83                 Current subsection 52(1) of the PID Act provides that a PID investigation must be completed within 90 days from allocation of the disclosure to the relevant agency .

2.84                 This item would provide that a PID investigation must be completed within 90 days from:

•        the day of the initial allocation , or

•        the day of the reallocation, or

•        the day of a determination by a principal officer to reinvestigate the disclosure.

2.85                 The proposed note to amended subsection 51(1) would clarify that reallocation or reinvestigation may occur in response to a recommendation by the Ombudsman or the IGIS under proposed section 55 (as inserted by item 34 of Part 2 of Schedule 1).

2.86                 This item would be consistent with current obligations to completed a PID investigation within 90 days (see subsection 51(1) of the PID Act) but would provide greater clarity for agencies and disclosures on the time limits for investigation.

Item 32—Subsection 53(5)

2.87                 This item would repeal existing subsection 53(5) of the PID Act which provides that to the extent that the investigation relates to an alleged breach of the Code of Conduct within the meaning of the Parliamentary Service Act 1999 and/or the Public Service Act 1999, the principal officer must comply with the procedures established under subsection 15(3) of those Acts, respectively.

2.88                 This item would implement recommendation 32 of the Moss Review which recommended that subsection 53(5) be repealed on the basis that it would become redundant with the implementation of Moss Review recommendations 5 (exclusion of personal work-related grievances from the PID Act, unless the authorised officer considers that it relates to systemic wrongdoing; see items 1 to 4 of Part 2 of Schedule 1) and recommendation 31 (discretion not to investigate if it would be more appropriately investigated under another law or regime; see items 11, 19 and 25 of Part 2 of Schedule 1). The proposed narrower scope of disclosable conduct and the simplified discretion to refer a matter to another legislative process (such as Code of Conduct investigation) is intended to remove the need for parallel investigations under both frameworks in the future.

Item 33—Section 54

2.89                 This item would repeal and substitute existing section 54 of the PID Act.

2.90                 New section 54 replicates existing section 54 with minor amendments as a consequence of item 5 of Part 2 of Schedule 1. New subsection 54 would provide that the principal officer conducting an investigation under Division 2 of Part 3 of the PID Act may, for the purposes of the investigation, adopt a finding set out in a report of an investigation or inquiry under another law or power, or another investigation under Division 2 of Part 3 of the PID Act.

2.91                 Existing paragraph 54(1)(a) of the PID Act provides that the principal officer conducting an investigation under Division 2 of Part 3 may, for the purposes of an investigation, adopt a finding set out in the report of an investigation or inquiry under a law of the Commonwealth other than the PID Act or the executive power of the Commonwealth. Existing subsection 54(2) clarifies that procedures under a law of the Commonwealth other than the PID Act are taken to be a law of the Commonwealth. As another law or power would be defined in section 8 of the PID Act under item 5 of Part 2 of Schedule 1 to include a law of the Commonwealth (including procedures under such a law) other than the PID Act and the executive power of the Commonwealth, existing section 54 of the PID Act would be redrafted as a consequence of that amendment.

Item 34—Section 56

2.92                 This item would repeal current section 56 of the PID Act and substitute with proposed new section 55 and a redrafted section 56.

New section 55—The Ombudsman and the IGIS—recommendations

2.93                 Proposed new section 55 would provide that the Ombudsman and the IGIS may review the handling of a PID by any public official, and make recommendations to the principal officer of the agency to which the disclosure was made or allocated.

•        Proposed subsection 55(1) would define the scope of the section. It provides that proposed section 55 applies where the Ombudsman or the IGIS, as relevant:

-       is notified of a disclosure to an agency under proposed subsection 44(2) (as amended by item 11 of Part 2 of Schedule 1)

-       is notified of a decision not to allocate under proposed subsection 44A(3) (as amended by item 11 of Part 2 of Schedule 1)

-       is notified by the principal officer of a decision not to investigate or not to investigate further under section 50A (as amended by item 27 of Part 2 of Schedule 1)

-       is notified of the completion of the PID investigation report under proposed subsection 51(4) (as amended by item 28 of Part 2 of Schedule 1), or

-       receives a complaint about the handling of a disclosure under the Ombudsman Act or the IGIS Act.

•        The note to subsection 55(1) would clarify that the role of the Ombudsman and the IGIS upon receipt of complaints under the PID Act is set out in proposed sections 7A and 7B (as inserted by item 70 of Part 5 of Schedule 1).

•        Subsection 55(2) would clarify that if a complaint has been made to the Ombudsman or the IGIS under their respective Acts, section 55 would not affect any duty, power or function the relevant investigative agency has to consider or act on that complaint. The note to proposed subsection 55(2) would clarify that the powers which would be established by proposed subsections 55(3) to 55(6) would be in addition to any other powers the Ombudsman or the IGIS has under the relevant Act.

•        Subsection 55(3) would provide that the Ombudsman or the IGIS may review the handling of a PID by any public official involved in handling the disclosure. Similarly to item 28 of Part 2 of Schedule 1, this provision is intended to enhance the oversight functions of the Ombudsman and the IGIS. The decision to review the handling of a PID is discretionary and does not require the Ombudsman or the IGIS to review the handling of all PIDs.

•        Subsection 55(4) would provide that the Ombudsman and the IGIS may obtain such information from such persons as they think necessary for the purposes of undertaking a review into the handling of a PID.

•        Subsection 55(5) would provide that at the end of a review, the Ombudsman or the IGIS may make written recommendations to the principal officer of the agency to which the disclosure was made and/or the principal officer of the agency to which the disclosure was allocated. The note to subsection 55(5) would clarify that the Ombudsman or the IGIS is not required to make any recommendations as a result of the review.

•        Subsection 55(6) would set out, without limitation, the types of recommendations that the Ombudsman or the IGIS could make including:

-       that the disclosure be allocated or reallocated (to another agency)

-       that the disclosure be investigated or reinvestigated (by another agency)

-       action be taken in relation to the disclosure, the discloser, a supervisor or authorised official or any other public official.

The list is not exhaustive and it would be open to the Ombudsman or the IGIS to determine the appropriate recommendation/s.

•        Subsection 55(7) would provide that principal officers may respond to any recommendations of the Ombudsman or the IGIS made under subsection 55(5) as they think fit.

•        Subsection 55(8) would provide that principal officers will be required to notify the Ombudsman and the IGIS as soon as reasonably practicable of any actions taken (or proposed to be taken) in response to any recommendations made by either body, and if no action is proposed to be taken, an explanation as to why.

2.94                 Proposed section 55 would enhance and clarify the oversight role of the Ombudsman and the IGIS by outlining what each body can do upon receipt of notifications, complaints and PID investigation reports.

2.95                 This item would build on recommendation 3 of the Moss Review (see item 28 of Part 2 of Schedule 1) as it would better support oversight of the PID Act by providing the Ombudsman and the IGIS with expanded powers to better inquire into and oversee the handling of disclosures.

New section 56—Disclosure to a member of an Australian police force

2.96                 Current section 56 prescribes the process for the disclosure of information to a member of an Australian police force. Under that section, a person investigating a disclosure may disclose information received or discovered to a member of an Australian police force if they suspect on reasonable grounds that the information is evidence of the commission of an offence against a Commonwealth, state or territory law. However, the person must notify a member of an Australian police force if the information is evidence of the commission of an offence punishable by imprisonment for life, or a period of at least two years.

2.97                 This item would redraft current section 56, but would not change the general requirement under current section 56 that if an investigator suspects that an offence against a Commonwealth, state or territory law has occurred, then an investigator may inform a member of an Australian police force.

•        New subsection 56(1) would broadly replicate the first part of existing subsection 56(1) and define the scope of the redrafted section 56. Subsection 56(1) would provide that new section 56 applies where during the course of an investigation, the principal officer suspects that information disclosed or obtained is evidence of the commission of an offence against a law of the Commonwealth, a State or Territory.

•        New subsection 56(2) would broadly replicate the second part of existing subsection 56(1) and clarify that the principal officer may give the relevant information identified in proposed subsection 56(1) to a member of the Australia police force responsible for the investigation of the offence.

•        New subsection 56(3) would expand on existing subsection 56(2) by introducing a reasonableness element on principal officers to disclose to a member of an Australian police force. New subsection 56(3) would provide that the principal officer must provide the relevant information identified in new subsection 56(1) to a member of an Australian police force responsible for the investigation where the principal officer suspects, on reasonable grounds, that the offence is punishable by imprisonment for life or a period of at least two years.

•        New subsection 56(4) would provide that an agency does not need to notify a member of an Australian police force in relation to an offence for which there is a period of imprisonment of at least two years where the principal officer:

-       believes on reasonable grounds that the agency itself has the capacity, skills and resources to investigate the relevant offence and meet the requirements for gathering evidence and preparing a brief of evidence for the CDPP (which is intended to be consistent with the Australian Government Investigation Standards, as per paragraph 2.4 of that document), or

-       suspects on reasonable grounds that the information raises a corruption issue (within the meaning of the Law Enforcement Integrity Commissioner Act 2006) and the Integrity Commissioner is aware of the issue or has been, or will be, notified under section 19. Following passage of the NACC legislation this would refer to information that raises a corruption issue within the meaning of the NACC Bill and the NACC Commissioner is aware of the issue or has been, or will be, notified through a mandatory referral under Division 2 of part 5 of the NACC Bill.  

•        New subsection 56(5) would replicate existing subsection 56(3) and provide that section 56 is not intended to limit an official’s power to notify a member of an Australia police force of a matter disclosed under the PID Act.

2.98                 This item would implement recommendation 33 of the Moss Review by providing that if the Integrity Commissioner of the Australian Commission for Law Enforcement Integrity (or, following passage of the NACC Consequential Bill, the National Anti-Corruption Commission), has already been notified (or is already aware) of a corruption issue, there is no mandatory requirement to notify a member of an Australian police force, even where the offence carries a period of imprisonment of at least two years. The Moss Review identified that current reporting obligations under section 56 of the PID Act are duplicative, as heads of Commonwealth law enforcement agencies already have an obligation to notify the Integrity Commissioner of corruption issues.

2.99                 In addition, under Division 2 of Part 5 of the NACC Bill, all agency heads will have an obligation to refer serious or systemic corruption issues to the NACC. Accordingly, items 24 and 25 of Part 4 of Schedule 4 of this Bill contains a contingent amendment that would amend this item to replace references to the Law Enforcement Integrity Commissioner Act 2006 and the Integrity Commissioner with the National Anti-Corruption Commissioner Act 2022 and the National Anti-Corruption Commissioner, respectively, following passage of the NACC Consequential Bill.

 



Part 3        Protections and civil remedies

Public Interest Disclosure Act 2013

This Part would expand the scope of protections for disclosers and availability of civil remedies in the case of a reprisal action taken against a person who has made, may have made, proposes to make or could make a PID.

Item 35—Section 8 (definition of detriment )

3.1                     This item would replace the existing definition of ‘detriment’ in section 8 with a new definition which specifies that the term has a meaning affected by section 13 (as amended by items 41 to 45 of Part 3 of Schedule 1 below).

Item 36—Section 8

3.2                     This item would insert definitions of the terms provides assistance and reprisal .

3.3                     The definition of provides assistance is included to support the amendments relating to witnesses who provide assistance in relation to a public interest disclosure in new section 12A (see item 40 of Part 3 of Schedule 1).

3.4                     The definition of reprisal is included to support the amendments related to taking a reprisal action in section 13 at item 41 of Part 3 of Schedule 1.

Item 37—Part 2 (heading)

3.5                     This item would replace the existing heading ‘Part 2—protection of disclosers’ with the heading ‘Part 2—Protection of disclosers and witnesses’, to reflect the expansion of protection and immunities to witnesses at item 40 of Part 3 of Schedule 1.

Item 38—Section 9 (paragraph beginning ‘An individual’)

3.6                     This item would insert the term ‘or providing assistance in relation to a public interest disclosure’ into the simplified outline of Part 1, Division 1 (Protections), to reflect the expansion of protection and immunities to witnesses at item 40 of Part 3 of Schedule 1.

Item 39—Section 9 (note 2)

3.7                     This item would repeal the current note 2 in section 9 and insert a new note 2 which refers to the requirement for the principal officer and authorised officer of an agency to protect a person who is, or has been a public official of the agency from reprisals relating to a public interest disclosure.

3.8                     This item is intended to reflect amendments at items 54 and 58 of Part 3 of Schedule 1, which sets out additional obligations of principal officers and authorised officers under the PID Act.

Item 40—At the end of Subdivision A of Division 1 of Part 2

3.9                     This item would insert new sections 12A and 12B to extend protections for witnesses who provide assistance in relation to a public interest disclosure.

3.10                 The PID Act currently offers protections from civil and criminal liability only for witnesses who give information to someone conducting a disclosure investigation (see section 57 of the PID Act).

3.11                 This item would insert new sections 12A and 12B which provide witnesses with the same protections from civil, criminal and administrative liability as a discloser under the PID Act. ‘Witness’ would be defined broadly to include any person providing assistance in relation to a PID other than the discloser.

3.12                 This item would implement recommendation 28 of the Moss Review, which stated the PID Act should be amended so that a witness receives the same protections as a discloser from reprisals, as well as civil, criminal and administrative liability. This amendment would enable witnesses to contribute to PID investigations without the threat of reprisal and assist agencies to investigate disclosures more effectively.

3.13                 New section 12A would provide that assistance by witnesses can take the form of giving information, providing documents or answering questions in relation to an allocation decision, a PID investigation or a review by the Ombudsman or the IGIS about an agency’s handling of a disclosure under new subsection 55(3) (see item 34 of Part 2 of Schedule 1).

3.14                 The protections for witnesses in new section 12A would align with the protections afforded to a discloser under existing section 10 of the PID Act:

•        the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) because of the assistance provided (subsection 12A(3), which aligns with paragraph 10(1)(a) in the Act).

•        no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the assistance provided (subsection 12A(4), which aligns with paragraph 10(1)(b) in the Act).

•        the individual has absolute privilege in proceedings for defamation in respect of the assistance provided (paragraph 12A(5)(a), which aligns with paragraph 10(2)(a) in the Act).

•        a contract to which the individual is a party must not be terminated on the basis that the assistance provided constitutes a breach of the contract (subsection 12A(5)(b), which aligns with paragraph 10(2)(b) in the Act).

3.15                 Item 39 would also insert new section 12B, which would outline instances where the protections afforded to witnesses under new section 12A will not apply. Proposed section 12B would mirror the exemptions to protections applicable to a discloser under existing sections 11, 11A and 12 of the PID Act:

•        witnesses will be liable for knowingly making a statement that is false or misleading (subsection 12B(2), mirroring existing section 11)

•        the immunities in section 12A will not apply to proceedings against the witness for contravening a designated publication restriction (as defined under section 8 of the Act). (subsection 12B(4), mirroring existing section 11A), and

•        where the assistance provided relates to the witness’ own conduct, the immunities in section 12A would not affect his or her liability for the conduct (subsection 12B(5), mirroring existing section 12).

3.16                 The PID Act currently protects witnesses from civil or criminal liability where the witness provides information when requested to do so by the person conducting the investigation (subsection 57(1)). This means that a witness who voluntarily provides information, prior to being requested, does not receive the same immunities from liability.

Item 41—Subsection 13(1)

3.17                 This item would repeal existing subsection 13(1) and substitute a new definition of what it means to ‘take a reprisal’ against another person for the purposes of the PID Act.

3.18                 This item would re-write the definition of takes a reprisal for three key reasons.

3.19                 First, proposed paragraph 13(1)(a) would align the reprisal protections with the Corporations Act (see ‘detrimental conduct’ in paragraph 1317AD(1)(a)) by including a ‘threat’ to cause detriment within the definition of takes a reprisal .

3.20                 The PID Act already protects against threats to take a reprisal. As such, this amendment would not change the existing coverage of the PID Act, but rather make the provision easier to apply. Incorporating ‘threat’ into the definition of takes a reprisal means other provisions in the PID Act, which separately require the act of threatening a person to be mentioned, can be simplified. The amendments which would give effect to this simplification across the PID Act are contained in the table at item 62 of Part 3 of Schedule 1.

3.21                 Second, subparagraph 13(1)(a)(ii) would include within a threat to cause detriment conduct that ‘results in’ a threat to cause detriment, rather than only conduct that ‘consists of’ a threat to cause detriment. The rationale for this change is outlined further in relation to the threat offence in new subsection 19(2) at item 46 of Part 3 of Schedule 1.

3.22                 Third, proposed paragraph 13(1)(b) would implement recommendation 6.3 of the PJCCFS Report by extending the reprisal protections to people who could make a disclosure under the PID Act. This would protect people who may have reprisal action taken against them merely for becoming aware of information that would meet the definition of disclosable conduct .

3.23                 Subsection 13(1) is not limited to protecting the discloser. It covers persons taking reprisal action against a discloser or any other person (such as witnesses). As a result, witnesses receive the same reprisals protections as disclosers, including access to the civil remedies contained in sections 14, 15 and 16 of the PID Act.

3.24                 A new note would be inserted at the end of section 13 which contains examples of individuals against whom reprisal action may be taken for the purposes of section 13. The example at paragraph (b) makes it clear that section 13 also applies to a witness in relation to a disclosure.

Item 42—Subsection 13(2)

3.25                 This item would omit the term ‘any disadvantage, including’ from subsection 13(2) so the subsection now reads ‘Detriment includes (without limitation) any of the following’.

Item 43—Paragraph 13(2)(c)

3.26                 This item would substitute the term ‘detriment’ for ‘disadvantage’ in paragraph 13(2)(c). The paragraph now reads ‘alteration of an employee’s position to his or her disadvantage’.  This would make the paragraph consistent with the amended definition of the term detriment in item 42 of Part 3 of Schedule 1.

Item 44—At the end of subsection 13(2)

3.27                 This item would extend the list of circumstances which constitute detriment for the purposes of taking a reprisal action to include harassment or intimidation of a person, harm or injury to a person including psychological harm, damage to a person’s property, reputation, business or financial position, or any other damage to a person.

3.28                 In doing so, this item would align the definition of ‘detriment’ in the PID Act with that of the Corporations Act (section 1317ADA) and make it clear on the face of the Act that detriment extends beyond harm to a person’s employment.

3.29                 This amendment would clarify the scope of detrimen t under the PID Act, rather than substantively expand the meaning of the term as the existing definition of ‘detriment’ in the PID Act is non-exhaustive.

Item 45—At the end of section 13

3.30                 This item would add two notes at the end of section 13 for the purposes of clarifying the sections under which a person may be liable for taking a reprisal against another person.

3.31                 Note 1 states that a person may be liable in a civil action under sections 14, 15 or 16 for taking a reprisal against another person.

3.32                 Note 2 states that a person may be guilty of an offence under section 19 of the PID Act if they engage in conduct that constitutes taking a reprisal against another person.

Item 46—Section 19

New section 19—Reprisals in relation to disclosures—Offences

3.33                 Item 48 would repeal existing section 19 of the PID Act and insert a new section 19, which would redraft the existing reprisal offences in section 19 to reflect changes to the scope of the offences and to make the offence provisions easier to apply.

3.34                 Section 19 of the PID Act currently provides offences for taking a reprisal against a person (existing subsection 19(1)), and threatening to take a reprisal against a person (existing subsection 19(3)).

3.35                 The amendments to these offences at item 48 would serve the following purposes:

•        to specify the physical and fault elements of the offences.

•        to broaden the scope of the offences to include reprisals taken against a person who ‘could’ make a public interest disclosure, and indirect threats of reprisal.

•        to provide a defence to the offences for conduct that is reasonable administrative action taken to protect a person from detriment.

•        to reiterate that in a prosecution for an offence of taking a reprisal, it is not necessary to prove that the other person made, may have made or intended to make a PID.

New subsections 19(1) and (2)—Clarifying physical and fault elements

3.36                 New section 19 would redraft the existing offences in subsections 19(1) and (3) of the PID Act consistent with current drafting practices to provide greater clarity of the physical and fault elements in the existing offences of taking a reprisal by causing detriment (new subsection 19(1)) and taking a reprisal by a threat to cause detriment (new subsection 19(2)).

3.37                 The physical and fault elements of these offences have been redrafted to make clear that there are specific fault elements for these offences, distinct from the standard fault elements ordinarily applicable under the Criminal Code.

New subsection 19(1)—Taking a reprisal by causing detriment

3.38                 As currently drafted, the existing reprisal offence in subsection 19(1) states that a person commits an offence if the person takes a reprisal action against another person.

3.39                 New subsection 19(1) would rewrite the offence in subsection 19(1) to draw out its elements. Under this subsection, a person would commit an offence in relation to another person if they:

•        engage in conduct (paragraph 19(1)(a))

•        which results in detriment to the other person, and (paragraph 19(1)(b))

•        believe or suspect, when engaging in such reprisal conduct, that the other, or another, person, has made, may, proposes or could make a PID, and (paragraph 19(1)(c))

•        this belief or suspicion is all or part of the reason for engaging in the conduct (paragraph 19(1)(d)).

3.40                 The physical elements of the offence in new subsection 19(1) are:

•        for paragraph 19(1)(a)—conduct as per paragraph 4.1(1)(a) of the Criminal Code;

•        for paragraph 19(1)(b)—a result of conduct for paragraph 4.1(1)(b) of the Criminal Code;

•        for paragraph 19(1)(c)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code; and

•        for paragraph 19(1)(d)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code.

3.41                 The fault element for paragraph 19(1)(a)—concerning the person engaging in conduct—would be intention, in accordance with subsection 5.6(1) of the Criminal Code.

3.42                 The fault element for paragraphs 19(1)(b) is recklessness, in accordance with section 5.6 of the Criminal Code.

3.43                 The fault elements for paragraphs 19(1)(c) and (d) is belief or suspicion, as stated in the provisions.

New subsection 19(2)—Taking a reprisal by a threat to cause detriment

3.44                 As currently drafted, the existing offence for threatening to take a reprisal in subsection 19(3) states that a person (the first person) commits an offence if:

•        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;

•        the first person:

-       intends the second person to fear that the threat will be carried out; or

-       is reckless as to the second person faring that the threat will be carried out.

3.45                 Proposed subsection 19(2) would rewrite the offence in subsection 19(3) to draw out its elements. Under this proposed subsection, a person would commit an offence in relation to another person) if:

•        they engage in conduct (paragraph 19(2)(a)); and

•        engaging in the conduct consists of, or results in, a threat to cause detriment to the other person; and (paragraph 19(2)(b)); and

•        the person is reckless as to whether the other person fears that the threat would be carried out (paragraph 19(2)(c)); and

•        when the conduct is engaged in, the first person believes or suspects that the second person, or any other person (paragraph 19(2)(d)):

-       has made a public interest disclosure, or

-       may have made a public interest disclosure, or

-       proposes to make a public interest disclosure, or

-       could make a public interest disclosure; and

•        the belief or suspicion is the reason, or part of the reason, for engaging in the conduct (paragraph 19(2)(e)).

3.46                 The physical elements of the offence in new subsection 19(2) are:

•        for paragraph 19(2)(a)—conduct for paragraph 4.1(1)(a) of the Criminal Code;

•        for paragraph 19(2)(b)—a result of conduct for paragraph 4.1(1)(b) of the Criminal Code;

•        for paragraph 19(2)(c)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code;

•        for paragraph 19(2)(d)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code; and

•        for paragraph 19(2)(e)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code.

3.47                 The fault element for paragraph 19(2)(a) would be intention, in accordance with subsection 5.6(1) of the Criminal Code.

3.48                 The fault element for paragraphs 19(2)(b) and (c) is recklessness, in accordance with section 5.6 of the Criminal Code.

3.49                 The fault element for paragraphs 19(2)(d) and (e) is belief or suspicion, as stated in the provisions.

New subsections 19(1) and 19(2)—Offences apply where a person ‘could’ make a disclosure

3.50                 New subsections 19(1) and 19(2) would expand the scope of the existing reprisal offences in the PID Act in that they explicitly apply to reprisals taken against a person who could have made a public interest disclosure.

3.51                 The existing reprisal offences at subsections 19(1) and 19(3) of the PID Act do not apply to a reprisal taken against a person who could make a public interest disclosure under the PID Act. This reflects the current definition of takes a reprisal at subsection 13(1) (which is limited to a person who made, may have made or proposes to make a public interest disclosure).

3.52                 This amendment would reflect proposed changes to the definition of takes a reprisal in new subsection 13(1) (see item 41 of Part 3 of Schedule 1) which includes situations where the person engaging in the conduct believes or suspects that a person could make a public interest disclosure (new subparagraph 13(1)(b)(iv)) and that this belief or suspicion is the reason or part of the reason for engaging in the conduct. Extending the definition of takes a reprisal to a person who ‘could’ make a disclosure would implement recommendation 6.3 of the PJCCFS Whistleblower Report. This would protect people who may have reprisal action taken against them merely for becoming aware of information that would meet the definition of disclosable conduct .

New subsections 19(1) and 19(2)—Application to witnesses

3.53                 The offences in new section 19 would continue to prohibit reprisal action against witnesses. The offence in existing section 19 already prohibits reprisal action against witnesses, as the definition of ‘taking a reprisal’ in subsection 13(1) of the PID Act requires that reprisal action be taken against ‘another person’, and is not limited to the discloser. That is, no amendment to the offence provision to protect witnesses against reprisal action is required as they are already covered by the existing offences in the PID Act.

New subsections 19(2) and 19(3)—Threat to cause detriment

3.54                 The offence of threatening to cause detriment in existing subsection 19(3) would be amended to not only capture conduct that ‘consists of’ a threat to cause detriment, but also conduct that ‘results in’ a threat to cause detriment (new paragraph 19(2)(b)).

3.55                 This would ensure that the offence of taking a reprisal by a threat to cause detriment would also capture indirect threats. In particular, it would ensure that circumstances where there is a direction to make a threat (for example, a senior staff member directing a junior staff member to threaten detriment against a discloser) will be considered a ‘threat’ for the purpose of the offence in new subsection 19(2). It is appropriate that such conduct be captured in the threat offence in new subsection 19(2) as though the threat had been delivered by the senior staff member themselves to the discloser. This is because, provided the other elements of the offences are met, this indirect threat has equal potential to negatively impact the discloser.

3.56                 New subsection 19(3) would clarify that subsection 19(2) applies whether the threat is express, implied, conditional or unconditional. This replicates existing paragraph 19(3)(b) in the PID Act.

New subsection 19(4)—Exception for reasonable administrative action

3.57                 New subsection 19(4) would provide a defence to the offence provisions in subsections 19(1) and (2) for conduct that is reasonable administrative action taken to protect a person from detriment.

3.58                 The note to new subsection 19(4) would state that an evidential burden would be placed upon the defendant, rather than a legal burden. This means the defendant would only need point to evidence that suggests a reasonable possibility that their action was a reasonable administrative action in the circumstances. Once this evidence is adduced, the onus would shift back to the prosecution to prove beyond reasonable doubt that the conduct was not reasonable administrative action.

3.59                 Existing section 19 of the PID Act requires a prosecutor to prove that the relevant conduct was not reasonable administrative action under existing subsection 13(3). This means the prosecution is required to prove beyond reasonable doubt that:

•        the defendant was aware that there was a substantial risk the conduct was not administrative action that is reasonable to protect the second person from detriment, and

•        in all the circumstances known to the defendant, it was unjustifiable to take that risk.

3.60                 This is a significantly higher onus for the prosecution to discharge as it requires establishing the absence of a justification. It is also more costly for the prosecution to disprove than for the defendant to establish these matters. Such a high bar presents a barrier to the effectiveness of the current offence provision.

3.61                 Placing the evidential burden on the defendant for new subsection 19(4) is therefore appropriate, as the question of whether something is reasonable administrative action will be peculiarly within the knowledge of the defendant, and will not be known to the prosecution.

New subsection 19(5)—No requirement to prove matters related to a public interest disclosure

3.62                 Existing subsection 19(2) of the PID Act states that in a prosecution for an offence against subsection 19(1), it is not necessary to prove that the other person made, may have made or intended to make a public interest disclosure.

3.63                 New subsection 19(5) would largely replicate this existing provision by stating that in a prosecution for an offence under section 19, it is not necessary to prove that any person:

•        has made a public interest disclosure, or

•        may have made a public interest disclosure, or

•        proposes to make a public interest disclosure, or

•        could make a public interest disclosure

3.64                 However, new subsection 19(5) would differ from subsection 19(2) in that it provides that it is not necessary to prove that a person ‘proposes to make’ (as opposed to ‘intended to make’) or could make a public interest disclosure. This different wording reflects the changes to the definition of ‘taking a reprisal’ in new subsection 13(1) (to include where the person engaging in the conduct believes or suspects that a person could make a public interest disclosure (new subparagraph 13(1)(b)(iv)).

3.65                 Replicating this provision is appropriate because the relevant element of the offence in section 19 relates specifically to the first person’s belief or suspicion that the second person or any other person has, may, proposes to make or could make a public interest disclosure. This is independent to the question of whether a public interest disclosure has in fact been made, may have been made, was proposed to have been made or could have been made.

Item 47—Section 20 (heading)

3.66                 This item would replace the existing heading ‘use or disclosure’ with the wording ‘disclosure or use’ in section 20. This amendment would make the heading consistent with the sequencing of the offences in that section.

Item 48—Subsection 20(2)

3.67                 This item would omit the term ‘(the first person)’ from the offence against the use of identifying information in subsection 20(2) so that it would read ‘ A person commits an offence if the person uses identifying information’ .

3.68                 Specifying the person as ‘the first person’ in this provision is not required because the provision does not mention a second person.

Item 49—Paragraph 20(3)(e)

3.69                 This item would repeal existing paragraph 20(3)(e) and substitute it with a new paragraph. The new paragraph specifies that the obligation to keep identifying information confidential would not apply where the discloser acts in a way inconsistent with his or her identity being kept confidential.

3.70                 This item would implement recommendation 19 of the Moss Review, that the PID Act be amended to recognise implied consent as an exemption to the secrecy offence relating to identifying information.

3.71                 The Moss Review stated that agencies reported instances of disclosers identifying themselves within their workplace, or publishing information about their disclosure. The offence relating to identifying information under the PID Act is intended to protect the discloser from harm. The Moss Review considered that if the discloser has chosen to identify himself or herself, this protection is no longer needed. On that basis, the Moss Review stated that the PID Act should recognise implied consent as an exemption to the offence relating to identifying information. This would be consistent with the Privacy Act 1988 (Cth), in which implied consent is explicitly recognised as a form of consent.

3.72                 This amendment would ensure that a person would not be subject to a criminal offence for disclosing identifying information where the discloser was acting in a manner inconsistent with maintaining confidentiality over their identity.

3.73                 This amendment would also reduce the likelihood of a situation where a discloser could speak publicly about the disclosure, but prevent an agency from responding to their claims by withholding express consent.

Item 50—At the end of section 20

3.74                 This item would insert new subsection 20(4), which would insert a non-exhaustive statement on when the use or disclosure of identifying information is for the purpose of the PID Act. Existing paragraph 20(3)(a) in the Act provides that the offences of using or disclosure identifying information do not apply where the disclosure or use of the identifying information is for the purposes of the PID Act.

3.75                 This item would implement recommendation 18 of the Moss Review, which recommended that the offence relating to the use or disclosure of identifying information in section 20 be amended to clearly identify further exceptions to that offence contained elsewhere in the PID Act.

3.76                 New subsection 20(4) would not limit existing paragraph 20(3)(a), but would make clear that the use or disclosure of identifying information for the following circumstances is for the purposes of the PID Act:

•        assisting in relation to a PID (sections 61, 62 and 63).

•        seeking legal advice or other professional assistance (paragraph 67(2)(a))

•        performing functions or exercising powers under the PID Act in good faith (subsection 78(1)).

3.77                 This item would not create any new exceptions to the section 20 offence. Rather, the item would promote clarity within the PID Act by bringing together various exceptions to the section 20 offence that are already contained throughout the PID Act.

Item 51—Section 34 (note 2)

3.78                 Item 53 would omit the phrase ‘section 60A’ from note 2 in current section 34 of the PID Act and substitute it with the phrase ‘subsection 60A(3)’.

3.79                 As currently drafted, note 2 in section 34 states that ‘a discloser may also disclose information to his or her supervisor (who is then obliged under section 60A to give the information to an authorised officer)’.

3.80                 This item would reflect proposed amendments to section 60A (see item 59 of Part 3 of Schedule 1), which would redraft the obligation to give information to an authorised officer in section 60A and renumber it as subsection 60A(3).

Item 52—Paragraph 51(2)(e)

3.81                 This item would expand existing paragraph 51(2)(e) of the PID Act to require that an investigation report include claims of reprisal taken against any person (such as a witness), not just the discloser.

3.82                 Existing subsection 51(2) specifies the matters that must be set out in a PID investigation report. Amongst other things, existing paragraph 51(2)(e) states that an investigation report must include any claim made about, and any evidence of, detrimental action against the discloser, and the agency’s response to those claims.

3.83                 New paragraph 51(2)(f) would build on existing paragraph 51(2)(e) to require that the investigation report not only addresses an agency’s response to claims of reprisals against the discloser, but also an agency’s response to claims of reprisals against any other persons.

Item 53—Section 57

3.84                 This item would repeal section 57 of the PID Act which contains protections for witnesses in relation to the investigation of a PID. This is consequential to the amendment in item 40 of Part 3 of Schedule 1, which would expand and more comprehensively cover witness protections in new section 12A.

Item 54—Section 59

3.85                 This item would repeal and replace current section 59 of the PID Act to provide additional obligations for principal officers and make the obligations easier to understand.

3.86                 As currently drafted, section 59 requires the principal officer of an agency to:

•        establish procedures for facilitating and dealing with public interest disclosures relating to an agency (subsection 59(1), noting these instruments are not legislative instruments as per subsection 59(2))

•        take reasonable steps to:

-       protect public officials who belong to the agency from detriment, or threats of detriment, relating to public interest disclosures by those public officials (paragraph 59(3)(a))

-       ensure the number of authorised officers of the agency is sufficient to ensure that they are readily accessible by public officials who belong to the agency (paragraph 59(3)(b))

-       ensure that public officials who belong to the agency are aware of the identity of each authorised officer of the agency (paragraph 59(3)(c))

•        ensure appropriate action is taken in response to recommendations in a report under section 51, or any other matters raised in such a report, that relate to the agency (subsection 59(4)).

3.87                 New subsection 59(1) would replicate existing paragraphs 59(3)(b) and (c). These paragraphs provide that a principal officer must take reasonable steps to:

•        ensure that the number of authorised officers of the agency is sufficient to ensure that they are readily accessible by public officials who belong to the agency (new paragraph 59(1)(a)), and

•        ensure that public officials who belong to the agency are aware of the identity of each authorised officer of the agency (new paragraph 59(1)(b)).

3.88                 New subsection 59(2) would implement recommendation 20 of the Moss Review, which recommended that the principal officer have a positive obligation to support disclosers and witnesses involved in the PID process.

3.89                 Under new subsection 59(2), the principal officer would be required to take reasonable steps to support disclosers, and other persons providing assistance in relation to such disclosures.

3.90                 The meaning of ‘reasonable steps’ will depend upon the circumstances of each matter. However, examples may include the following:

•        providing access to dedicated support people, with appropriate expertise and training, to guide disclosers and those providing assistance in relation to the disclosure through the PID process

•        providing internal guidance on the PID process or promoting whole-of-government guidance material from agencies such as the Ombudsman

•        active promotion of a pro-disclosure culture.

3.91                 New subsections 59(3) and (4) would broadly replicate existing subsection 59(1), but expand its requirements by requiring the principal officer to establish procedures dealing with additional matters, as follows.

3.92                 Existing subsection 59(1) provides that a principal officer must establish procedures that comply with the aspects of the Public Interest Disclosure Standard 2013 (the PID Standard) outlined in paragraph 74(1)(a) - that is, the standards determined by the Ombudsman in relation to procedures for dealing with internal disclosures and possible internal disclosures.

3.93                 New subsection 59(3) would require the procedures established by principal officers to comply with the PID Standard to the extent they relate to all matters covered in paragraphs 74(1)(a)-(d) of the PID Act. Paragraphs 74(1)(a)-(d) of the current PID Act provide that the Ombudsman may, by legislative instrument, determine standards in relation to the following:

•        procedures, to be complied with by the principal officers of agencies, for dealing with internal disclosures and possible internal disclosures (paragraph 74(1)(a))

•        the conduct of investigations under the PID Act (paragraph 74(1)(b))

•        the preparation, under section 51, of reports of investigations under the PID Act, and (paragraph 74(1)(c))

•        the giving of information and assistance under subsection 76(3), and the keeping of records for the purposes of that subsection (paragraph 74(1)(d)).

3.94                 It is appropriate that procedures established by principal officers comply with other aspects of the PID Standard, given these standards are determined by the Ombudsman who oversees and reports on the operation of the PID scheme.

3.95                 New subsection 59(5) would provide that instruments made under new subsection 59(3) (procedures for facilitating and dealing with public interest disclosures relating to an agency ) are not legislative instruments. These instruments are not legislative in character as per subsection 8(4) of the Legislation Act 2003 (Cth) as the procedures merely apply the existing PID Act requirements to specific agencies in a procedural sense, and do not alter or determine the law. Therefore, this subsection is merely declaratory of the law and is not a substantive exemption from the requirements of the Legislation Act.

3.96                 New subsection 59(6) would largely mirror existing subsection 59(4) of the PID Act, by requiring a principal officer to take appropriate action in response to recommendations made in an investigation report under section 51 of the PID Act.

3.97                 However, new subsection 59(6) would narrow the obligation under existing subsection 59(4) by removing the requirement that a principal officer take appropriate action in response to ‘any other matters raised’ in an investigation report.

3.98                 It is appropriate that the responsibilities of the principal officer be confined to taking action to implement recommendations in an investigation report to ensure principal officers have a clear understanding of the matters they are responsible for implementing. Any significant matters raised in an investigation report that requires a principal officer to take action to implement should be made as recommendations.

3.99                 New subsection 59(7) would implement recommendation 22 of the Moss Review by requiring the principal officer to take reasonable steps to provide ongoing training and education to public officials about the PID Act relating to integrity and accountability and any training necessary to support supervisors to carry out their functions under the PID Act.

3.100             This requirement would be independent of the IGIS’ obligations under existing section 63 of the PID Act, which relate to assisting specified individuals and bodies in relation to the operation of the PID Act, and conducting specified educational and awareness programs related to the PID Act. Agencies would not be able to discharge their obligations under new subsection 59(7) by relying on the IGIS’ obligations under existing section 63.

3.101             New subsection 59(8) draws upon existing paragraph 59(3)(a), but would outline more clearly that a principal officer must take reasonable steps to protect individuals against reprisals that have been, or may be, taken in relation to a PID that has, may have, is proposed to be, or could be made.

3.102             Examples of reasonable steps could include:

•        implementing broader whole-of-agency processes to protect disclosers from reprisal actions

•        ensuring there are appropriate internal support mechanisms for disclosers

•        consulting authorised officers to seek feedback on processes in the agency to protect individuals from reprisals.

3.103             The key change to existing paragraph 59(3)(a) is that the principal officer’s obligation to protect disclosers from detriment would be expanded to protect individuals who ‘could’ make a PID, consistent with item 41 of Part 3 of Schedule 1.

Item 55—Section 60

3.104             This item would omit the word ‘if’ and substitute the wording ‘(1) If’ in section 60. This is consequential to the addition of new subsections 60(2) at item 58 of Part 3 of Schedule 1.

Item 55—Subparagraph 60(b)(ii)

3.105             This item would omit the phrase ‘what this Act requires in order for the disclosure to be an internal disclosure’ and substitute it with the phrase ‘the consequences of making the disclosure’ in existing paragraph 60(b)(ii) of the PID Act.

3.106             Subparagraph 60(b)(ii) would then require an authorised officer to inform a discloser of certain matters specified in existing paragraphs 60(c)-(e), if the authorised officer had reasonable grounds to believe that the individual may be unaware of the consequences of making the disclosure.

3.107             This amendment is designed to simplify the language of subparagraph 60(b)(ii) and clarify what is required of an authorised officer in this circumstance.

Item 57—After paragraph 60(d)

3.108             This item would insert new subsection (da) after existing paragraph 60(d) of the PID Act.

3.109             Existing section 60 specifies the additional obligations of authorised officers to inform disclosers of specified matters in certain instances. New subsection 60(da) would insert a new obligation for an authorised officer to advise the individual about the circumstances (if any) in which a public interest disclosure must be referred to an agency , or other person or body, under another law of the Commonwealth, provided the requirements of existing subsection 60(a) and (b) are met. This amendment would ensure a discloser or potential discloser is aware of an authorised officer’s referral obligations and the potential for the information they disclose to be provided to another agency , person or body, aside from the authorised officer, in certain circumstances.

Item 58—At the end of section 60

3.110             This item would insert new subsection 60(2) at the end of section 60.

3.111             New subsection 60(2) would require an authorised officer to take reasonable steps to protect public officials who belong to the agency from reprisal action taken in relation to public interest disclosures that the authorised officer suspects on reasonable grounds:

•        have been made or given to the officer

•        may have been made or given to the officer

•        are proposed to be made or given to the officer, or

•        could be made or given to the officer.

3.112             This duty would reflect the expanded definition of takes a reprisal in item 41 of Part 3 of Schedule 1, by including public interest disclosures that could be made or given to the officer.

3.113             Provided the authorised officer took reasonable steps to protect public officials from reprisals in relation to PIDs, they would have discharged their duty under this new section.

3.114             While reasonableness will depend on the circumstances of each case, an example of reasonable steps may include changing a discloser’s direct supervisor for the purposes of protecting the discloser from reprisal actions if their current supervisor is the subject of their disclosure.

3.115             Furthermore, the duty on the authorised officer in new subsection 60(2) would not arise in relation to PIDs that the authorised officer does not suspect on reasonable grounds have been made, may have been made, are proposed to be made or could be made to the authorised officer. Imposing a duty in circumstances beyond those canvassed in paragraphs (a)-(d) would create an unjustifiably high burden for the authorised officer, as such matters would be too remote for the authorised officer to be able form a reasonable suspicion as to their existence. 

3.116             This duty is also distinguishable from the duties that would be imposed on the principal officer in new subsection 59 (see item 54 of Part 3 of Schedule 1). Given the position occupied by principal officers as defined under the PID Act, their duties encompass broader whole-of-agency processes to protect public officials in relation to public interest disclosures.

3.117             An authorised officer’s duty under new subsection 60(2) recognises the different positions typically occupied by the principal officer and the authorised officer, with the obligation on the authorised officers being more directed to individuals and not including a broader whole-of-agency element.

Item 59—Section 60A

3.118             This item would repeal and replace existing section 60A relating to the supervisor’s additional obligations. In addition to the existing obligations on a supervisor to provide specified information to an authorised officer, new section 60A also requires supervisors to inform disclosers of their duties under the PID Act.

3.119             Section 60A of the PID Act provides that if a public official discloses information to a supervisor which the supervisor has reasonable grounds to believe contains disclosable conduct, the supervisor must give the information to an authorised officer as soon as reasonably practicable. However, there is currently no obligation on supervisors to inform disclosers of their duties under the PID Act.

3.120             New section 60A would require a supervisor who receives information from a public official that the supervisor has reasonable grounds to believe contains disclosable conduct to:

•        inform the discloser that their disclosure could be treated as an internal disclosure (new subsection 60A(2)(a)

•        explain to the discloser the next steps in the PID process, being the passing on of their disclosure to the authorised officer, the allocation of the PID, and the investigation of the PID (new subsection 60A(2)(b))

•        advise the individual about the circumstances in which a public interest disclosure must be referred to an agency , or other person or body, under another law of the Commonwealth (new subsection 60A(2)(c))

•        explain the civil and criminal protections the PID Act provides to disclosers, and those assisting in relation to disclosures, from reprisals.

3.121             New section 60A would also replicate existing subsection 60A(3) by requiring a supervisor to give the information to the authorised officer as soon as reasonably practicable after the disclosure is made.

3.122             The Moss Review noted that the obligation for supervisors to report a PID to an authorised officer was not well-used. The Moss Review considered that the mandatory reporting obligation on a supervisor (to an authorised officer) has had the unintended effect of impeding the free flow of information among staff about their concerns, thus undermining efforts to create a pro-disclosure culture.

3.123             The Moss Review recommended that the PID Act be amended to include an obligation for supervisors who receive information from a public official about disclosable conduct to explain their existing obligation to report that information to an authorised officer (recommendation 23).

3.124             This item would expand upon recommendation 23 by requiring the supervisor to also explain the PID process to the discloser. This would ensure that the discloser is informed of the PID process and protections at the earliest stage.

Item 60—Subsection 61(1)

3.125             This item would insert the words ‘Division 2 of’ before the words ‘Part 3’ in subsection 61(1). The subsection would then refer to the requirement for a public official to their best endeavours to assist the principal officer of an agency in the conduct of an investigation under Division 2 of Part 3.

3.126             This is a technical amendment to make clear that the requirement to assist a principal officer in this circumstance is located in Division 2 of Part 3.

Item 61—At the end of section 61

3.127             This item would insert an additional obligation of public officials in section 61 (new subsection 61(4) requiring a public official to use their best endeavours to assist another public official to perform a duty or function under the PID Act, consistent with recommendation 21 of the Moss Review.

3.128             As noted in the Moss Review, this amendment is intended to create a ‘pro-disclosure’ culture by ensuring that there is clear legislative mandate for public officials to support others in their performance of PID Act duties or functions.

Item 62—Amendments of listed provisions

3.129             This item would omit references to threats to take reprisals in several provisions of the PID Act. This reflects amendments to subsection 13(1) at item 41, which would include ‘threat’ within the definition of takes a reprisal . In light of this, this item would simplify the rest of the PID Act by removing ‘threat’ from various other provisions.

 

 



Public Interest Disclosure Act 2013

4.1                     This Part would repeal the general secrecy offence contained in existing section 65 of the PID Act and facilitate greater information-sharing between agencies about a disclosure.

Item 63—Sections 64 to 66

4.2                     This item would repeal existing sections 64 to 66 of the PID Act and substitute new sections 64 and 65 to authorise the sharing of information and documents between agencies where a principal officer considers such information and documents relevant to the other agency’s functions.

4.3                     Existing section 64 of the PID Act outlines that Division 2 of Part 4 of the PID Act creates offences which relate to the inappropriate use or disclosure of information obtained through processes connected with the PID Act.

4.4                     This item would redraft the simplified outline contained at existing section 64 of the PID Act to provide that Division 2 of Part 4 of the PID Act would authorise the sharing of information about a disclosure between agencies, including between investigative agencies. It would also state that the Division also provides an offence for the further disclosure, or use, of information that is the subject of a legal practitioner disclosure, except for the purposes of providing legal advice and professional assistance. The proposed redrafting of section 64 would provide a more accurate outline of the Division, including as amended by this Part and to reflect the repeal of the general secrecy offence at existing section 65 of the PID Act.

4.5                     Existing section 65 of the PID Act makes it an offence for a person to disclose or use information obtained in the course of conducting a disclosure investigation, or in connection with the performance of a function or the exercise of power by the person under the PID Act.

4.6                     This item would repeal the secrecy offence at existing section 65 and replace it with a new provision which authorises agencies, including investigative agencies, to share information and documents that are relevant to the disclosure or the conduct disclosed where the principal officer of the sharing agency considers the information or documents to be relevant to the destination agency’s functions.

•        New subsection 65(1) would define the scope of the section. New subsection 65(1) would provide that proposed section 65 applies to the provision of information and documents in relation to a disclosure that are relevant to the disclosure or the conduct disclosed. This includes, but is not limited to, the provision of a copy of an investigation report (see proposed section 51, item 28 of Part 2 of Schedule 1).

•        New subsection 65(2) would be an avoidance of doubt provision clarifying that section 65 is not an exhaustive statement of when information relating to a disclosure may be shared. New subsection 65(2) would provide that section 65 would not limit the extent to which the provision of information or documents may be authorised or permitted under the PID Act or any other law. As such, information may be otherwise shared between agencies if it can be done consistently with the identifying information offence in existing section 20 of the PID Act and any other relevant secrecy provisions under other laws. Therefore, information-sharing under new section 65 would necessarily include consideration of the extent to which the provision of information of document would otherwise be limited by the PID Act or any other law. Agencies should consider how existing section 75 of the PID Act (as amended by item 64 of Part 4 of Schedule 1) would interact with information-sharing under new section 65—section 75 of the PID Act provides for certain restrictions on the application of secrecy provisions.

•        New subsection 65(3) would provide a list of circumstances in which information-sharing between agencies would be explicitly authorised under this section. New subsection 65(3) would provide that information can be shared by one agency (the sharing agency ) with another agency (the destination agency ), if the principal officer of the sharing agency considers that the information or documents are relevant to the destination agency’s functions. Consideration by a principal officer would ensure that the sharing of relevant information or documents only occurs following consideration by an appropriately senior officer in the sharing agency of whether the discretion should be exercised. The proposed accompanying table would list the circumstances in which information-sharing with a destination agency would be authorised on the basis of which agency is the sharing agency . These circumstances are consistent with current defences to the secrecy offence set out in existing subsection 65(2).

-       Nothing in proposed subsection 65(3) is intended to require an agency to share information under section 65.

-       It is for agencies to determine when the sharing of information may be relevant to the disclosure or the conduct disclosed under proposed section 65.

•        For the purposes of proposed subsection 65(3), the accompanying table would provide that:

-       an investigative agency , including the Ombudsman and the IGIS, may provide such information and documents to another investigate agency , the portfolio department of the agency to which the conduct disclosed relates, or the agency to which the conduct disclosed relates (item 1 of the table)

-       if the disclosure is allocated within an agency’s portfolio under proposed subsection 43(8) (see item 10 of Part 2 of Schedule 1) and the sharing agency is the agency to which the disclosure is allocated, the sharing agency is authorised to provide such information and documents to the agency to which the conduct disclosed relates (item 2 of the table)

-       if the disclosure is allocated within an agency’s portfolio under proposed subsection 43(8) (see item 10 of Part 2 of Sch. 1) and the sharing agency is the agency to which the conduct disclosed relates, the sharing agency is authorised to provide such information and documents to the agency to which the disclosure is allocated (item 3 of the table).

•        New subsection 65(4) would provide a discretion for an agency sharing information to delete any material from the information being provided as that agency considers appropriate to do so. This is intended to recognise circumstances in which there may be particularly sensitive information which should not be shared with other agencies, without limiting the sharing of information and documents more broadly.

•        New subsection 65(5) would provide that proposed subsection 65(3) would not authorise the sharing of a discloser’s name and contact details where the discloser does not consent to the sharing of that information.

4.7                     Existing section 66 of the PID Act would be repealed without replacement. That section provides the source agencies for intelligence information for the purposes of the exception to the existing section 65 secrecy offence in paragraph 65(2)(f). Existing paragraph 65(2)(f) enables the disclosure or use of information despite the existing section 65 secrecy offence, where the 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 section 66 as the source agency for the intelligence information. As this item would repeal the secrecy offence in existing section 65, the exception in paragraph 65(2)(f) is no longer required. Existing section 66 is redundant as a consequence of this amendment and therefore has not been replaced

4.8                     The amendments in this item would support enhanced information-sharing by identifying instances where information-sharing between agencies would be explicitly authorised. This is intended to assist agencies to carry out their functions under the PID Act and to ensure they can share information appropriately to effectively manage disclosures. The explicit authorisation in new section 65 would also interact with existing section 75 of the PID Act as amended by item 64 in Part 4, Schedule 1, which provides for certain restrictions on the application of secrecy provisions.

4.9                     This item would implement recommendations 4 and 16 and supports implementation of recommendation 14 of the Moss Review by:

•        providing explicit authorisation for the Ombudsman to share information with another investigative agency (item 1 of accompanying table to proposed subsection 65(3)) (Moss Review recommendation 4)

-       As noted in the Moss Review, this  would ensure that investigative agencies are appropriately informed about matters that fall within their remit. Item 1 of the proposed table would go beyond the Moss Review recommendation by making clear that other investigative agencies such as the IGIS (and any investigative agencies prescribed by the PID Rules) can share information with another investigative agency . Item 1 would also enable an investigative agency to share information with the portfolio department of the agency to which the disclosure relates and the agency to which the conduct disclosed relates.

•        repealing the secrecy offences relating to the use or disclosure of information about a PID (Moss Review recommendation 16)

-       The Moss Review noted that the secrecy offence in existing section 65 of the PID Act unnecessarily limits agencies’ ability to respond to alleged wrongdoing and has hampered agencies’ ability to respond to disclosures, or to fulfil their ordinary administrative obligations under the PID Act.

•        make clear what information can be shared by a principal officer if an agency allocates a PID to another agency within the same portfolio in accordance with proposed new subsection 43(8) (see item 11 of Part 2, Schedule 1) (Moss Review recommendation 14).

Item 64—Paragraphs 75(1)(b) and (c)

4.10                 This item would omit the reference to ‘61’ and substitute with ‘61 or 65’ in paragraphs 75(1)(b) and (c) of the PID Act.

4.11                 Existing paragraphs 75(1)(b) and (c) provide that a provision of a law of the Commonwealth that prohibits the disclosure, recording or use of information does not apply to the disclosure, use or recording of information if:

•        the disclosure, recording or use is in connection with the conduct of a disclosure investigation

•        the disclosure, recording or use is for the purposes of the performance of the functions, or the exercise of the powers, conferred on a person by Part 3 or section 61 of the PID Act, or

•        the disclosure, recording or use is in connection with giving a person access to information for the purposes of, or in connection with, the performance of the functions, or the exercise of the powers, conferred on the person by Part 3 or section 61 of the PID Act and the disclosure, recording or use is not contrary to a designated publication restriction.

4.12                 Existing subsection 75(2) provides that existing section 75 does not apply if the pr ovision of a law of the Commonwealth that prohibits the disclosure, recording or use of information provision was enacted after the commencement of section 75 of the PID Act, and contains the express intention to override amended paragraphs 75(1)(b) and (c).

4.13                 This item would have the effect that secrecy provisions otherwise applicable under other laws of the Commonwealth would not apply where the disclosure, recording or use of information is for the purposes of the performance of the functions, or the exercise of the powers, conferred on a person by Part 3 of the PID Act or new section 65 (as amended by item 63 of Part 4 of Schedule 1), or the disclosure, recording or use is in connection with giving a person access to information for the purposes of, or in connection with, the performance of the functions, or the exercise of the powers, conferred on the person by Part 3 of the PID Act or new section 65 .

4.14                 The exceptions in existing section 75 would continue to apply.

4.15                 This item would support the intention behind recommendations 4, 14 and 16 of the Moss Review by facilitating sharing information and documents between agencies in accordance with new section 65. This item would ensure the practical operation of the information-sharing provision in proposed section 65, including in cases where a secrecy provision under another law would otherwise prevent the sharing of information or documents under section 65.

4.16                 Agencies should consider the applicability of secrecy provisions under other laws of the Commonwealth in light of existing section 75 as amended by this item, when considering whether information and documents should be shared under proposed section 65.

Item 65—Section 76 (heading)

4.17                 This item would repeal the current heading of section 76 ‘Annual Report’ and substitute ‘Annual reports by the Ombudsman’.

4.18                 This item would be a technical amendment to make clear that the obligation to produce an annual report under the PID Act apply to the Ombudsman and complement items 66, 67, 68 and 69 of Part 4 of Schedule 1 that would amend the reporting requirements on the Ombudsman under the PID Act.

Item 66—After subparagraph 76(2)(a)(ii)

4.19                 This item would insert new subparagraph 76(2)(a)(iia) after existing subparagraph 76(2)(a)(ii) of the PID Act.

4.20                 This item would specify that the annual report prepared by the Ombudsman under existing subsection 76(1) of the PID Act must also include statements of the number of disclosures allocated to each agency during the financial year.

4.21                 This item would require the inclusion of additional necessary information to the Ombudsman’s annual report to support understanding of the operation of the PID Act.

Item 67— After subparagraph 76(2)(a)(iii)

4.22                 This item would insert new subparagraph 76(2)(a)(iiia) after existing subparagraph 76(2)(a)(iii) of the PID Act.

4.23                 This item would specify that the annual report prepared by the Ombudsman under existing subsection 76(1) of the PID Act must also include statements of the time taken by agencies’ to conduct disclosure investigations during the financial year.

4.24                 As with item 66, this item would require the inclusion of additional necessary information to the Ombudsman’s annual report to support understanding of the operation of the PID Act.

Item 68—At the end of subsection 76(2)

4.25                 This item would insert new proposed paragraph 76(2)(e) to existing section 76(2) of the PID Act.

4.26                 This item would provide that the annual report prepared by the Ombudsman under existing subsection 76(1) of the PID Act must include the information required by paragraphs 76(2)(a) to (d) (as amended by items 66 and 67 of Part 4 of Schedule 1) as related to the following periods:

•        from 1 July to 31 December in the financial year, as reported under proposed section 76A with any updates or necessary corrections or revisions indicated

•        from 1 January to 30 June in the financial year.

4.27                 This item is intended to bolster the annual report requirement under existing subsection 76(1) of the PID Act, to facilitate greater transparency about the ongoing operation of the PID Act.

Item 69—After section 76

4.28                 This item would insert proposed section 76A to the PID Act which would require the Ombudsman to prepare and provide six-monthly reports to the Minister on the operation of the PID Act.

•        New subsection 76A(1) would provide that as soon as reasonably practicable after the end of each calendar year, the Ombudsman must prepare and give to the Minister for tabling in Parliament, a report on the operation of the PID Act for the period from 1 July to 31 December in the calendar year. The proposed note to proposed section 76A(1) would clarify that section 34C of the Acts Interpretation Act 1901 contains extra rules about periodic reports. 

•        New subsection 76A(2) would specify that the report provided under proposed subsection 76A(1) must include information required for the annual reports in existing paragraphs 762(a) to (d) of the PID Act.

•        New subsection 76A(3) would provide that existing subsections 76(3) and (4) of the PID Act would apply in the same manner as to reports prepared under existing subsection 76 of the PID Act. That is, that:

-       the principal officer of an agency must give the Ombudsman such information and assistance as the Ombudsman reasonably requires in relation to the preparation of a report, and

-       the principal officer of an agency may delete from a document given to the Ombudsman under subsection 76(3) any materials that are likely to enable the identification of a person, or the inclusion of which would result in the document being exempt for the purposes of Part IV of the Freedom of Information Act 1982 or having, or being required to have, a national or protective security classification.

4.29                 This item, together with proposed paragraph 76(2)(e) at item 68 of Part 4 of Schedule 1, would implement recommendation 11 of the PJCIS Press Freedoms Report by requiring the Attorney-General to table in Parliament every six months a range of aggregated statistics relating to numbers and timeframes of PIDs under the PID Act. The PJCIS Press Freedoms Report considered that more frequent reporting on PID-related issues could assist in building public confidence in the proper operation of government departments and agencies.



Public Interest Disclosure Act 2013

5.1                     This Part would introduce new sections to the PID Act to clarify the respective roles of the Ombudsman, under the Ombudsman Act, and the IGIS, under the IGIS Act, with respect to complaints about the handling of a disclosure by an agency .

Item 70—At the end of Division 3 of Part 1

5.2                     This item would insert new sections 7A and 7B into the PID Act to make it clearer that complaints about the handling of a disclosure by an agency can be made to the Ombudsman under the Ombudsman Act and the IGIS under the IGIS Act.

5.3                     The PID Act currently contains notes following existing sections 42, 46 and 48 stating that complaints can be made to the Ombudsman and the IGIS in relation to the way a disclosure is allocated (or a refusal to allocate a disclosure), the way a disclosure is investigated (or a refusal to investigate) or the way additional obligations under the PID Act are complied with (or non-compliance with additional obligations). These notes refer to existing complaints mechanisms in the Ombudsman Act and the IGIS Act.

5.4                     New sections 7A and 7B would make clear that the respective complaint mechanisms under the Ombudsman Act and the IGIS Act apply to complaints about an agency’s handling of a disclosure under the PID Act. These would be clarifying amendments and would not extend the existing remit of the Ombudsman and the IGIS in relation to the PID Act.

•        New subsection 7A(1) would state that a complaint may be made to the Ombudsman under the Ombudsman Act about an agency’s handling of a disclosure under the PID Act, including:

-       whether the disclosure has been handled reasonably

-       the allocation of the disclosure (including any delay or failure to allocate the disclosure)

-       the investigation of the disclosure (including any delay or failure to investigate the disclosure)

-       compliance with the PID Act by an agency or any of its officers, including its principal officer (including any failure to comply with the PID Act), and

-       any other matter relating to the handling of the disclosure.

•        New subsection 7A(2) would provide that the Ombudsman could not receive complaints under subsection 7A(1) in relation to the IGIS, an intelligence agency , or the ACIC or the AFP if the disclosure relates to the intelligence functions of those agencies.

•        New subsection 7A(3) would clarify that new section 7A would not limit section 5 or 5A of the Ombudsman Act. The note to subsection 7A(3) would outline sections 5 and 5A of the Ombudsman Act, which:

-       set out the functions of the Ombudsman under the Ombudsman Act (section 5), and

-       provide that the functions under section 5 of the Ombudsman Act extend to investigating complaints relating to the handling of disclosures under the PID Act (section 5A).

•        New subsection 7B(1) would state that a complaint may be made to the IGIS under the IGIS Act about the handling of a disclosure under the PID Act by an intelligence agency , or the ACIC or the AFP if the disclosure relates to the intelligence functions of that agency .

•        New subsection 7B(2) would specify matters, without limitation, which could be the subject of a complaint to the IGIS under subsection 7B(1). The matters to which the complaint to the IGIS may relate are the same as those under subsection 7A(1) discussed above.

•        New subsection 7B(3) would clarify that section 7B would not limit section 8 or 8A of the IGIS Act. The note to subsection 7B(3) would outline sections 8 and 8A of the IGIS Act, which:

-       sets out the functions of the IGIS under the IGIS Act (section 8), and

-       provides that the functions under section 8 of the IGIS Act extend to investigating complaints relating to the handling of disclosures under the PID Act (section 8A).

5.5                     Nothing in proposed sections 7A and 7B is intended to prevent a complaint made to the Ombudsman or the IGIS being, in and of itself, a PID under the PID Act.

5.6                     This item is intended to ensure that agencies and public officials are aware of the role of the Ombudsman and the IGIS in resolving complaints about an agency’s handling of a PID. This item would build on various existing and proposed notes and provisions throughout the PID Act which highlight these functions of the Ombudsman and the IGIS (in addition to the existing notes mentioned above, see also proposed amended section 55(1) at item 34 of Part 2 of Schedule 1).

 

 



Public Interest Disclosure Act 2013

6.1                     This Part would clarify how disclosures are be to handled under the PID Act where there is a machinery of government change.

6.2                     A machinery of government change, as the concept is understood in the Australian Public Service, occurs when the Government decides to change the way Commonwealth responsibilities are managed. A machinery of government change can involve the movement of functions, resources and staff from one Commonwealth agency to another.

6.3                     Subsection 35(2) of the PID Act currently provides that a disclosure can be made to a new agency where the conduct relates to an agency which has ceased to exist (for example, following a machinery of government change). Under this subsection the conduct would need to have occurred before the agency ceased to exist and would be taken to relate to the new agency where:

•        the new agency acquired all of the functions of the agency that ceased to exist

•        the new agency acquired some of the functions of the agency that ceased to exist, and the conduct relates most closely to the functions that the new agency acquired, or

•        the PID rules prescribe that, for the purposes of the PID Act, the new agency replaces the agency that ceased to exist.

6.4                     However, the PID Act does not currently provide for the transfer of disclosures from one agency to another where the disclosure was made before a machinery of government change. Furthermore, the PID Act is silent on how disclosures are to be dealt with where an agency continues to exist following a machinery of government change, but some of its functions are transferred to another agency and the functions transferred most closely relate to the disclosure.

6.5                     This Part would clarify when conduct that is the subject of a disclosure will ‘relate to’ an agency following a machinery of government change. It would also enable disclosures to be transferred from one agency to another where there has been a machinery of government change after the disclosure has been made, but before it is resolved.

6.6                     This Part is necessary to provide agencies and disclosers with greater clarity about how disclosures should be dealt with under the PID Act following a machinery of government change, and would assist to ensure that all disclosures are appropriately investigated by a responsible agency.

Item 71—Section 8

6.7                     This item would amend section 8 of the PID Act to insert and define the terms affected agency , change time , machinery of government change , new agency and transferred function .

6.8                     An affected agency in relation to a machinery of government change is defined at section 73A to mean an agency that:

•        is abolished; or

•        has a change to the matters that it deals with; and

•        as a result of the agency being abolished or changing the matters that it deals with, a function of the agency is transferred to another agency (the new agency , defined below).

6.9                     The matters that an agency deals with include the functions and responsibilities of that agency. For example, a particular policy area or particular program that the agency is responsible for administering within the relevant minister’s portfolio responsibilities.

6.10                 Change time in relation to a machinery of government change is defined in section 73A to mean the particular time in which an affected agency is abolished or, if the affected agency is not abolished, the particular time in which there is a change to the matters which the affected agency deals with.

6.11                 Machinery of government change is defined in section 73A to mean where an affected agency is abolished, or where there is a change to the matters dealt with by the affected agency. 

6.12                 New agency in relation to a machinery of government change is defined in subsection 73A(2) to mean the agency that receives a function from an affected agency when the affected agency is either abolished or has a change in the matters that it deals with. The new agency could be an existing Commonwealth agency that is receiving additional functions from the affected agency, or a new Commonwealth agency that is created as result of a machinery of government change.

6.13                 Transferred function in relation to a machinery of government change is defined in subsection 73A(2). It refers to a function that is transferred between agencies as a result of a machinery of government change. Specifically, it refers to the transfer of a function from an affected agency to another agency (the new agency ) where the affected agency is either abolished or has had a change to the matters it deals with as a result of a machinery of government change.

Item 72—Before subsection 35(1)

6.14                 This item would amend section 35 of the PID Act to insert a new subheading ‘ Main definition’ before subsection 35(1).

6.15                 Section 35 of the PID Act defines when disclosable conduct relates to an agency in the context of determining who is an authorised internal recipient of an internal disclosure. Subsection 35(1) provides that conduct relates to an agency if the agency engages in the conduct, or if a public official belonging to the agency at the time of the conduct, engages in the conduct.

6.16                 This amendment would clarify that subsection 35(1) is the primary definition of when conduct relates to an agency, noting that there may be other ways in which conduct relates to an agency, for example, where the agency is a parent agency of an unincorporated subsidiary agency under subsection 35(2) (such as a board, council, committee or sub-committee).

6.17                 This amendment would support items 73 and 76 of the Bill in clarifying when a disclosure relates to a particular agency for the purposes of determining whether an agency is responsible for the handling of the disclosure under the PID Act.

Item 73—Before subsection 35(2)

6.18                 This item would amend section 35 of the PID Act to insert a new subheading ‘Conduct by unincorporated subsidiary agencies’ before subsection 35(2).

6.19                 Subsection 35(2) deals with the conduct of unincorporated subsidiary agencies. It provides that where conduct that is the subject of a disclosure relates to a subsidiary agency, it is taken to relate to a parent agency if the subsidiary agency:

•        is established by or under a law of the Commonwealth for the purposes of assisting or performing functions connected with its parent agency, and

•        is an unincorporated body.

6.20                 This amendment would support items 72 and 76 in clarifying when a disclosure relates to a particular agency for the purposes of determining which agency is responsible for the handling of the disclosure under the PID Act.

Item 74—Subsection 35(3)

6.21                 This item would repeal subsection 35(3) of the PID Act which determines the agency which conduct relates to in circumstances where the conduct would have related to an agency which has ceased to exist, for example, following a machinery of government change.

6.22                 This item supports item 76 which would insert a new Subdivision D—Machinery of government changes at the end of Division 3 of Part 4 of the PID Act. Subdivision D would comprise four new sections (sections 73A to 73D) which would effectively replace the repealed subsection 35(3) and would clarify when an agency is responsible for the handling of a disclosure where another agency has ceased to exist as a result of a machinery of government change.

6.23                 This is appropriate as provisions dealing with affected agencies and machinery of government changes are more appropriately co-located in Division 3 of Part 4 which defines, among other things, the key concepts of an agency and prescribed authority .

Item 75—At the end of section 35

6.24                 This item would insert a note at the end of section 35 of the PID Act which deals with when conduct that is the subject of a disclosure relates to an agency. The note would explain that a machinery of government change may affect how disclosures are handled under the PID Act. The note would clarify that a machinery of government change refers to the abolition of an agency or the transfer of functions between agencies, consistent with the definition at section 73A (as inserted by item 76).

Item 76—At the end of Division 3 of Part 4

6.25                 This item would insert a new ‘Subdivision D—Machinery of government changes’ at the end of Division 3 of Part 4 of the PID Act.

6.26                 Division 3 of Part 4 defines the key concepts of public official, agency, prescribed authority and principal officer which support the operation of the PID Act and the PID framework.

6.27                 Section 73A would outline the scope and application of Subdivision D. It would apply if a machinery of government change occurs in relation to an affected agency and, as a result of the machinery of government change, a function of the affected agency is transferred to another new agency. The new agency could be an existing Commonwealth agency that is receiving additional functions from the affected agency, or a new Commonwealth agency that is created as result of a machinery of government change.

6.28                 Section 73B would set out the circumstances in which conduct would relate to an agency where the conduct occurred at a different agency before a machinery of government change. It would provide that conduct which occurred in relation to an affected agency before a machinery of government change would be taken to relate to a new agency after the machinery of government change if:

•        the conduct relates to a function transferred from the affected agency to the new agency, or

•        the PID rules provide that conduct of that kind is taken to relate to the new agency.

6.29                 The effect of this section would be that the new agency would be responsible for the handling of a disclosure in relation to the relevant conduct and would be subject to relevant obligations under the PID Act. This is appropriate to ensure that all disclosures are appropriately handled by a relevant agency within statutory timeframes.

6.30                 Section 73C would clarify what happens to a disclosure that is made to an affected agency before a machinery of government change. It would apply if:

•        a person has disclosed information to an authorised officer or supervisor of an affected agency; and

•        consideration of the disclosure had not started or was not finalised immediately before the machinery of government change; and

•        the information disclosed concerns conduct that is taken to relate to a new agency after the machinery of government change under section 73B.

6.31                 Paragraph 73C(2)(a) would provide that where a person made a disclosure to a supervisor or authorised officer of an affected agency then, for the purposes of the PID Act, the disclosure will be taken to have been made to a supervisor or authorised officer belonging to the new agency. This would enliven the new agency’s authorised officer’s obligations under the PID Act, including the obligation to allocate the disclosure within 14 days from the day the authorised officer receives the disclosure.

6.32                 Paragraph 73C(2)(b) would provide that where a person’s disclosure had been allocated to the affected agency before a machinery of government change then, for the purposes of the PID Act, it would be taken to have been allocated to the new agency following the machinery of government change. This would enliven the new agency’s principal officer’s obligation to investigate a disclosure within 90 days from the day in which the machinery of government change occurred, subject to the principal officer exercising their discretion not to investigate.

6.33                 Paragraph 73C(2)(c) would provide that where a principal officer had commenced an investigation into the person’s disclosure before a machinery of government change, the principal officer of the new agency may continue the investigation as if the disclosure had been made in relation to conduct that relates to the new agency. The principal officer of the new agency may also decide not to continue to investigate the disclosure further under section 48 of the PID Act.

6.34                 Paragraph 73C(2)(d) would provide that any decision made or anything done by a person in relation to a disclosure before the machinery of government change would, for the purposes of the PID Act, be taken to have been made or done after the machinery of government change has occurred.

6.35                 Paragraph 73C(2)(e) would provide that the PID Act continues to apply in relation to the disclosure following the machinery of government change. This is appropriate to ensure that supervisors, authorised officers and principal officers continue to meet their obligations (for example, investigation timeframes and reporting) under the PID Act in relation to a disclosure that they have received from an affected agency as a result of a machinery of government change.

6.36                 Section 73D would provide for the transfer of disclosures and information relating to disclosures between agencies. It would permit a principal officer of an affected agency to provide certain information (including documents) in relation to a disclosure to the principal officer of the new agency to which the disclosure relates following a machinery of government change.

6.37                 The principal officer of the affected agency would be authorised to provide:

•        any report of the investigation of the disclosure prepared under section 51 of the PID Act

•        any notice of recommendations made by the Ombudsman and the IGIS under section 55 (as inserted by item 34 of Schedule 1 to the Bill), and

•        any other information in relation to the disclosure.

6.38                 The principal officer of an affected agency would be permitted to transfer the above information to the principal officer of a new agency if:

•        the disclosure was made by a person to a supervisor or authorised officer of an affected agency before a machinery of government change; and

•        the disclosure concerns conduct that is taken to relate to a new agency after a machinery of government change; and

•        consideration of the disclosure had not started or had not finalised before the machinery of government change; or

•        a report prepared under section 51 of the PID Act in relation to the investigation of the disclosure is completed by the principal officer of the affected agency either before or after a machinery of government change.

6.39                 Section 73D is appropriate to expressly permit the transfer of a disclosure and information related to a disclosure between agencies on the face of the legislation. This would address a lack of guidance in the PID Act about how to handles disclosures which more appropriately relate to another agency after a machinery of government change. The transfer of any identifying information related to the disclosure between agencies would be permitted under section 20 of the PID Act as it would be a disclosure for the purposes of the PID Act.

6.40                 This item would support the operation of the PID Act by clarifying when an agency is responsible for handling a disclosure, and the process required for handling the disclosure after a machinery of government change has occurred. It would also assist to simplify the legislation by co-locating the definition of a machinery of government change and related terms with the definition of other key concepts in the PID Act.

 

 



Public Interest Disclosure Act 2013

7.1                     This Part would insert the term Commonwealth entity as defined in the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) into the PID Act and amend references to the terms agency and prescribed authority to reflect this change. In doing so, this Part would ensure terminology used in the PID Act aligns with the PGPA Act.

7.2                     This Part would also amend the definitions of agencies, public officials and principal officers to reflect amendments to align the PID Act terms with the PGPA Act. It would also expressly exclude certain entities and categories of individuals from the meaning of ‘public official’ in accordance with the PID Act’s original intent.

Item 77—Section 8

7.3                     This item would amend section 8 of the PID Act to insert and define the term Commonwealth entity . For the purposes of the PID Act, Commonwealth entity would have the same meaning as in the PGPA Act.

7.4                     Commonwealth entity is defined in section 10(1) of the PGPA Act as follows:

•        a Department of State

•        a Parliamentary Department

•        a listed entity

•        a body corporate that is established is established under a law of the Commonwealth (other than a Commonwealth company) and is prescribed by an Act or the rules to be a Commonwealth entity.

7.5                     However, subsection 10(2) of the PGPA Act specifies that the High Court and the Future Fund Board of Guardians are not Commonwealth entities.

7.6                     This item would assist to provide all Commonwealth entities with greater clarity about whether they are subject to the PID Act and would ensure that terminology used in the PID Act aligns with the PGPA Act.

Item 78—Section 8 (paragraph (a) of the definition of Department )

7.7                     This item would amend paragraph (a) of the definition of Department in section 8 of the PID Act to omit the reference to ‘an Executive Agency or Statutory Agency’ and substitute ‘a Commonwealth entity’. This item is related to items 77 and 79 of Part 7 of Schedule 1 which together would have the effect of replacing the term ‘an Executive Agency or Statutory Agency’ with Commonwealth entity .

7.8                     The term Department would mean:

•        a Department of State (including the Defence Department), excluding any part that is itself a Commonwealth entity; or

•        a Department of the Parliament that is established under the Parliamentary Service Act 1999.

7.9                     This item would support other items in this Schedule of the Bill which seek to align the definition of agency in the PID Act with the definition of Commonwealth entity under the PGPA Act.

Item 79—Section 8 (definitions of Executive Agency and Statutory Agency )

7.10                 This item would repeal the definitions of Executive Agency and Statutory Agency from section 8 of the PID Act. The definitions pre-date the PGPA Act and would be removed (and replaced with Commonwealth entity ) throughout the PID Act by items in this Schedule of the Bill. As a result, the definitions would become redundant.

Item 80—Subsection 69(1) (table items 1 to 6)

7.11                 This item would amend the table at subsection 69(1) of the PID Act to remove items 1 to 6 and substitute these with new table items 1 to 4.

7.12                 Subsection 69(1) identifies the meaning of ‘public official’ for the purposes of the PID Act. Column 1 of the table specifies the kind of public official and Column 2 specifies the agency to which the public official belongs for the purpose of the PID Act.

7.13                 Current items 1 to 6 specify the following individuals as public officials :

•        The Secretary of a Department (item 1, column 1, belonging to the Department (item 1, column 2)

•        An APS employee in a Department (item 2, column 1), belonging to the Department (item 2, column 2)

•        The Head of an Executive Agency (item 3, column 1), belonging to the Executive Agency (item 3, column 2)

•        An APS employee in an Executive Agency (item 4, column 1), belonging to the Executive Agency (item 4, column 2)

•        A principal officer of a prescribed authority (item 5, column 1), belonging to the prescribed authority (item 5, column 2)

•        A member of the staff of a prescribed authority (including an APS employee in the prescribed authority) (item 6, column 1), belonging to the prescribed authority (item 6, column 2).

7.14                 Item 80 would replace these table items and specify the following individuals as public officials , where relevant:

•        An APS employee in a Department (item 1, column 1), belonging to the Department (item 1, column 2)

•        A member of staff of an agency other than a Department (including an APS employee in the agency) (item 2, column 1), belonging to the agency (item 2, column 2)

•        A Secretary of a Department (item 3, column 1), belonging to the Department (item 3, column 2)

•        The principal officer of an agency other than a Department (item 4, column 1), belonging to the agency (item 4, column 2).

7.15                 In effect, this amendment would consolidate existing table items 3-6 into new items 2 and 4. This is because the terms prescribed authority and ‘Executive Agency’ would fall within the meaning of the broader term agency as defined in new section 71 (as amended by item 90 of Part 7 of Schedule 1). This has the effect of aligning the use of these terms with the PGPA Act.

7.16                 While the broader term of agency would capture a Department, this reference is maintained for clarity because it is the most likely instance in which this table is likely to be used by disclosers and agencies.

Item 81—Subsection 69(1) (table item 10, column 1)

7.17                 This item would amend column 1 of table item 10 at subsection 69(1) of the PID Act to provide that a cadet, officer or instructor in the Australian Defence Force Cadets are public officials for the purposes of the PID Act.

7.18                 This is appropriate to address a technical omission in the PID Act insofar as it applies to the Australian Defence Force Cadets. Currently, ‘Defence Department’ is defined under section 8 of the PID Act to include the Defence Force and the Australian Defence Force Cadets (which includes Cadets of the Australian Army, Australian Navy and Australian Airforce). It is unclear from this definition whether Australian Defence Force Cadets are considered public officials in the same way as other members of the Australian Defence Force. This amendment would confirm that the PID Act applies to Australian Defence Force Cadets.

Item 82—Subsection 69(1) (table item 13)

7.19                 This item would repeal table item 13 in current subsection 69(1) of the PID Act (which defines the term ‘public official’) and replace it with a new table item.

7.20                 Current table item 13, column 1 specifies that a public official may include an individual who:

•        is employed by the Commonwealth otherwise than as an APS employee, and

•        performs duties for a Department, Executive Agency or prescribed authority.

The agency to which this public official belongs is identified in item 13, column 2 as the Department, Executive Agency or prescribed authority.

7.21                 New table item 13, column 1 specifies that a public official may include an individual who:

•        is employed by the Commonwealth otherwise than as an APS employee, and

•        performs duties for an agency .

7.22                 The agency to which this public official belongs is identified in new item 13, column 2 as an agency .

7.23                 This amendment would remove references to Departments, Executive Agencies or prescribed authorities in existing item 13 of the table in subsection 69(1) on the basis that these discrete terms are captured within the broader term agency , which is defined in new section 71 (as amended by item 90 of Part 7 of Schedule 1).

Item 83—Subsection 69(1) (table item 17, column 1)

7.24                 This item would amend column 1 of table item 17 at subsection 69(1) of the PID Act to remove the reference to a judicial officer. This amendment is consequential to new subsection 69(4) which would expressly exclude judicial officers from the definition of public officials (see item 88 of Part 7 of Schedule 1).

Item 84—Subsection 69(1) (table items 17A, 18 and 19, column 1)

7.25                 This item would amend column 1 of table items 17A, 18 and 19 at subsection 69(1) to remove references to a judicial officer. Consistent with items 83 and 86 of Part 7 of Schedule 1, this amendment is consequential to the explicit exclusion of judicial officers from the definition of public officials in new subsection 69(4) (see item 88 of Part 7 of Schedule 1).

Item 85—After subsection 69(1) (after the table)

7.26                 This item would insert a note after the table at subsection 69(1) to make it clear on the face of the PID Act that public officials and former public officials can make disclosures under the PID Act.

7.27                 This amendment would implement recommendation 6.1 of the PJCCFS Whistleblower Report, which recommended that the PID Act be amended to make clear that the PID Act applies to both current and former public officials .

Item 86—Subsection 69(2)

7.28                 This item would amend subsection 69(2) of the PID Act to remove reference to a judicial officer. Subsection 69(2) sets out the meaning of ‘statutory officeholder’ for the purposes of determining who is a public official under item 14 of the table at subsection 69(1).

7.29                 Consistent with items 83 and 84 of Part 7 of Schedule 1, this amendment is consequential to the explicit exclusion of judicial officers from the definition of public officials in new subsection 69(4) at item 88. 

Item 87—Subsection 69(3)

7.30                 This item would amend subsection 69(3) to refer to item 2 of the table at subsection 69(1) instead of item 6 as currently drafted. This is a necessary editorial amendment to ensure that subsection 69(3) refers to the correct item in the table as amended by item 80 of Part 7 of Schedule 1.

7.31                 Subsection 69(3) clarifies who is a member of staff for agencies other than a department. It provides that:

•        a member of staff referred to in subsection 31(1) of the Ombudsman Act is taken to be a member of staff of the Ombudsman

•        a member of staff referred to in subsection 32(1) of the IGIS Act is taken to be a member of staff of the IGIS

•        a staff member of ACLEI is taken to be a member of the staff of the Integrity Commissioner.

Item 88—Subsection 69(4)

7.32                 This item would repeal and replace subsection 69(4) of the PID Act to explicitly provide that judicial officers, members of parliament and persons employed or engaged under the MoP(S) Act are not public officials .

7.33                 This item would clarify existing arrangements under the PID Act that judicial officers are not within the scope of the PID scheme. This would reflect the original policy intention of the PID Act.

7.34                 The explicit exclusion of members of parliament and persons employed or engaged under the MoP(S) Act would implement recommendation 26 of the Moss Review, which recommended that the PID Act be amended to clarify that its provisions do not apply to reports about alleged wrongdoing by senators, members and their staff, or allegations made by them. The PID Act was not originally intended to capture allegations of wrongdoing by or about members of parliament or their staff members. This amendment confirms that position.

7.35                 The Moss Review also recommended that consideration be given to extending the PID Act to members of parliament or their staff if an independent body with the power to scrutinise their conduct is created (recommendation 27). Referencing that recommendation, the Set the Standard : Report on the Independent Review of Commonwealth Parliamentary Workplaces (Set the Standard report) recommended that protections in the PID Act be extended to persons employed or engaged under the MoP(S) Act (MoP(S) Act staff). That report also considered that a federal anti-corruption commission (if established) and the proposed Independent Parliamentary Standards Commission (recommendation 22 of Set the Standard report) should be made authorised recipients of disclosures by MoP(S) Act staff.

7.36                 The Government’s NACC Bill would establish a federal anti-corruption commission of the kind contemplated in both the Moss Review and Set the Standard Report recommendations. MoP(S) Act staff who disclose corruption issues to the NACC would have access to strong protections under the NACC Bill against reprisal and detriment for those disclosures. Given the NACC legislation provides protections for MoP(S) Act staff for disclosures to the NACC regarding corrupt conduct, and work is underway to give consideration to protections for MoP(S) Act staff more broadly, the Government does not propose to apply the PID Act to MOP(S) Act staff.

7.37                 The Government will consider further protections for MoP(S) Act staff who report misconduct in the context of implementing all recommendations in the Set the Standard report, in particular the establishment of the Independent Parliamentary Standards Commission.

Item 89—Subsection 70(3A)

7.38                 This item would repeal existing subsection 70(3A) and substitute new subsection 70(3A) which provides that section 70 of the PID Act does not apply to judicial officers, members of a Royal Commission, members of Parliament or persons employed or engaged under the MoP(S) Act. This has the effect that an authorised officer cannot determine under section 70 of the PID Act that these categories of person, who are not public officials for the purposes of the PID Act (under subsection 69(4), as amended by item 88 of Part 7 of Schedule 1), are otherwise public officials for the purposes of the PID Act.

Item 90—Sections 71 and 72

7.39                 This item would repeal the current definitions of agency and prescribed authority in sections 71 and 72 of the PID Act and replace these with new definitions that align with the PGPA Act.

7.40                 Current section 71 defines ‘agency’ as either a ‘Department’, an ‘Executive Agency’ or a ‘prescribed authority’. New section 71 would modify this definition by defining agency as either a Commonwealth entity or a prescribed authority .

7.41                 This amendment would align the definition of agency in the PID Act with the definition used in the PGPA Act, as per recommendation 29 of the Moss Review. With the PGPA Act simplifying the governance of Commonwealth entities, the Moss Review recommended amending the PID Act to adopt the term ‘entity’ from the PGPA Act. This amendment aims to provide greater clarity around who is subject to the PID Act.

7.42                 The terms ‘Department’ and ‘Executive Agency’ would no longer be explicitly included in the definition as they are captured by the term Commonwealth entity as defined in the PGPA Act (see item 76).

7.43                 Executive Agencies are those that are established by the Governor-General under section 65 of the Public Service Act 1999 . As per published guidance material from the Department of Finance, all Executive Agencies should be non-corporate Commonwealth entities in their capacity as ‘listed entities’, and accordingly, ‘Commonwealth entities’ under the PGPA Act.

7.44                 ‘Statutory agencies’ are those that are declared by Commonwealth law to be statutory agencies under section 7 of the Public Service Act. All statutory agencies are a Commonwealth entity (corporate or non-corporate) or a Commonwealth company, and are thereby covered by the definition of agency in new section 71.

7.45                 The new definition of prescribed authority in section 72 would capture other entities that do not fall within the definition of Commonwealth entity in section 71.

Item 91—Subsection 73(1) (table items 2 and 3)

7.46                 This item would repeal table items 2 and 3 from the table in subsection 73(1), which defines the meaning of ‘principal officer’ of a particular agency. Column 1 of the table specifies the relevant agency and column 2 specifies the relevant principal officer for that agency.

7.47                 Table item 2 currently specifies that a principal officer of an ‘Executive Agency’ is ‘[t]he Head of the Executive Agency’. Table item 2 would be repealed because an ‘Executive Agency’ is subsumed within the broader definition of agency as defined in new section 71 (see item 90 of Part 7 of Schedule 1). This would now be covered by new table item 10 (inserted at item 92 of Part 7 of Schedule 1, below), which would refer to ‘Any other agency’.

7.48                 Table item 3 currently specifies that, for a prescribed authority of a kind mentioned in several paragraphs of subsection 72(1), the principal officer is either the chief executive officer of the ‘prescribed authority’, or another individual ascertained in accordance with the PID rules - whichever is applicable.

7.49                 In repealing table item 3, this amendment would remove references to prescribed authority’ in existing subsection 73(1) on the basis that the broader term agency would be used (as defined in new section 71, see item 90 of part 7 of Schedule 1). This would now be covered by new table item 10 (inserted at item 92 of Part 7 of Schedule 1 below), which would refer to ‘Any other agency’.

7.50                 This amendment complements the amended definition of public officials in subsection 69(1) (as amended by item 80 of Part 7 of Schedule1).

Item 92—Subsection 73(1) (at the end of the table)

7.51                 This item would add new table item 10 at the end of the table in subsection 73(1), which defines the meaning of principal officer of a particular agency . Column 1 specifies the relevant agency and column 2 specifies the relevant principal officer for that agency .

7.52                 Item 92 would insert the term ‘Any other agency’ in column 1 of item 10. Column 2 of item 10 would define the relevant principal officer as either of the following, as applicable:

•        the chief executive officer, or the head of an agency (however described), or

•        an individual ascertained in accordance with the PID rules, if relevant.

7.53                 This amendment is necessary to reflect the use of the broader term agency (as defined in new section 71, see item 90 of Part 7 of Schedule 1) and capture entities that have been removed from the table at item 91 of Part 7 of Schedule 1 above.



Public Interest Disclosure Act 2013

7.54                 This Schedule would redraft the outline of the PID Act and make a number of miscellaneous amendments to better reflect and support the objectives of the PID Act and make minor amendments throughout the PID Act for consistency with other proposed items of the Bill.

Item 1—Paragraph 6(b)

7.55                 This item would insert ‘and former public officials’ after ‘public officials’ in existing paragraph 6(b) of the PID Act.

7.56                 This item would be a technical amendment consistent with items 2, 7 and 8 of Schedule 2 to the Bill, which would make clear that a person who is, or has been, a public official, may make a PID. This item is also consistent with the proposed note to subsection 69(1) (see item 85 of Part 7 of Schedule 1).

Item 2—Paragraphs 6(c) and (d)

7.57                 This item would insert ‘, and former public officials,’ after ‘public officials’ in existing paragraphs 6(c) and (d) of the PID Act. For the same reasons as item 1 above, this would be a technical amendment consistent with items 1, 7 and 8 of Schedule 2 to the Bill, which would make clear that a person who is, or has been, a public official, may make a PID. This item is also consistent with the proposed note to subsection 69(1) (see item 85 of Part 7 of Schedule 1).

Item 3—Section 7

7.58                 This item would repeal existing section 7 of the PID Act and insert a new simplified outline of the PID Act that is consistent with amendments as made by this Bill. Existing section 7 of the PID Act sets out an overview of the Act. This item would expand upon and update the content in existing section 7, to provide a simplified overview of the PID Act process, rather than describing respective Parts of the PID Act (as is currently the case in section 7).

7.59                 This item would seek to address, to some extent, the complexity of the PID Act by inserting an easy to follow high-level overview of the PID process. To support understanding, this item would summarise what a public interest disclosure is, the process for allocation , investigation and review of PIDs, and the protections available for disclosers and witnesses under the PID Act. For readability with the PID Act more broadly, this item would include cross-references to specific provisions that would provide additional detail on specific concepts and processes.

Item 4—Section 8 (definition of Commonwealth contract )

7.60                 This item would omit ‘subsection 30(3)’ and substitute this reference with ‘subsections 30(3) and (4)’ in the definition of Commonwealth contract in section 8 of the PID Act.

7.61                 This item would be a technical amendment to reflect proposed new subsection 30(4), which would remove a grant covered by an instrument made under section 105C of the PGPA Act from the definition of Commonwealth contract (see item 15 of Schedule 2).

Item 5—Section 8 (paragraph (h) of the definition of designated publication restriction )

7.62                 This item would repeal existing paragraphs (h) and (i) from the definition of designated publication restriction in section 8 of the PID Act and substitute new paragraph (h) which would provide that an order under subsections 35(3), 35(4) or 35AA(2) of the AAT Act falls within the definition of designated publication restriction.

7.63                 This item would consolidate orders made under the AAT Act into the one paragraph by removing existing paragraph 8(i) of the PID Act (which currently refers to directions under subsection 35AA(2) of the AAT Act) and expanding existing paragraph 8(h) to include orders under subsections 35(3), 35(4), in addition to orders under 35AA(2) under the AAT Act .

7.64                 This item would streamline and update references to relevant decisions under the AAT Act .  

Item 6—Section 8

7.65                 This item would insert definitions of emergency disclosure, external disclosure and legal practitioner disclosure into section 8 of the PID Act.

7.66                 This item would define emergency disclosure to mean a PID covered by item 3 of the table contained in existing subsection 26(1) of the PID Act.

7.67                 This item would define external disclosure to mean a PID covered by item 2 of the table contained in existing subsection 26(1) of the PID Act.

7.68                 This item would define legal practitioner disclosure to mean a PID covered by item 4 of the table contained in existing subsection 26(1) of the PID Act.

7.69                 This item would be a technical amendment to support references to these terms in existing section 26 of the PID Act.

Item 7—Section 22

7.70                 This item would insert ‘, or has been’ after ‘public official who is’ into existing section 22 of the PID Act.

7.71                 This item would be a technical amendment consistent with items 1, 2 and 8 of Schedule 2 to the Bill, which would make clear that a person who is, or has been, a public official, may make a PID. This item is also consistent with the proposed note to subsection 69(1) (see item 85 of Part 7 of Schedule 1).

Item 8—Section 25

7.72                 This item would insert ‘or a former public official,’ after ‘public official’ into existing section 25 of the PID Act.

7.73                 This item would be a technical amendment consistent with items 1, 2 and 7 of Schedule 2 to the Bill, which would make clear that a person who is, or has been, a public official, may make a PID. This item is also consistent with the proposed note to subsection 69(1) (see item 85 of Part 7 of Schedule 1).

Item 9—Paragraph 26(1)(c)

7.74                 This item would omit ‘met:’ and substitute with ‘met.’ in existing paragraph 26(1)(c) of the PID Act.

7.75                 This item would be a technical amendment to make a grammatical correction.

Item 10—Subsection 26(1) (cell at table item 1, column 3)

7.76                 This item would repeal and substitute the cell at table item 1, column 3 of the table at section 26(1) of the PID Act.

7.77                 The substituted cell would insert a new paragraph (b) that would expressly exclude from the definition of public interest disclosure contained in existing section 26 of the PID Act any disclosures made in the course of performing one’s ordinary functions as a public official.

7.78                 Currently under section 26(1) of the PID Act, a PID is made if the disclosure:

•        is made by a public official (or former public official)

•        to an authorised internal recipient (being, usually, the public official’s supervisor or authorised officer of the relevant agency), and

•        contains disclosable conduct.

7.79                 Currently under the PID Act, it is immaterial whether the discloser intends for the disclosure to be a PID. It is also immaterial whether the disclosure is made by a public official whose ordinary functions involve investigating wrongdoing in the agency. For example, if a public official is employed in the agency’s fraud area and discusses wrongdoing they have identified whilst performing their role with their supervisor, they may have unintentionally made a PID. This would enliven the PID Act and require the matter to be investigated under the PID Act rather than through the fraud area’s current processes.

7.80                 This amendment would make clear that discussions that routinely occur in areas of an agency whose every day functions involve inquiring into and investigating wrongdoing should not constitute a PID for the purposes of the PID Act.

7.81                 This item would not limit the ability of a public official whose ordinary functions involve investigating wrongdoing in an agency to make a PID, however they would need to make their intention clear when communicating a PID to the recipient supervisor or the authorised officer.

7.82                 This item would retain the existing content of table item 1, column 3 as new paragraph (a) in that cell.

Item 11—Paragraph 29(1)(c)

7.83                 This item would omit ‘contract:’ and substitute with ‘contract.’ in existing paragraph 29(1)(c) of the PID Act.

7.84                 This item would be a technical amendment to make a grammatical correction.

Item 12—Subparagraph 30(2)(b)(i)

7.85                 This item would omit ‘; or’ and substitute with ‘; and’ in existing subparagraph 30(2)(b)(i) of the PID Act.

7.86                 This item would be a technical amendment to ensure that under subsection 30(2) a contract service provider for a Commonwealth contract is both a person who:

•        is party to the Commonwealth contract and is responsible for the provision of goods or services under the Commonwealth contract (covered under subsection 30(2)(a))

•        is party to a contract (the subcontract) with a person who is a contracted service provider for the Commonwealth contract under paragraph 30(2)(a) and is responsible under the subcontract for the provisions of goods and services of the Commonwealth contract (covered under subsection 30(2)(b), as amended by this item) .

7.87                 This item is intended to be a technical change reflecting the practical operation of the definition of a contracted service provider for a Commonwealth contract as it applies to subcontractors, reflecting the expectation that subcontractors would satisfy both limbs of paragraph 30(2)(b).

Item 13—Subparagraph 30(2)(b)(ii)

7.88                 This item would omit ‘who’ from subparagraph 30(2)(b)(ii) of the PID Act to correct a drafting error.

Item 14—Paragraph 30(3)

7.89                 This item would omit ‘a prescribed authority’ and replace these references with ‘an agency’ wherever occurring in paragraph 30(3).

7.90                 This item would be a technical amendment to remove existing references to ‘a prescribed authority’ from the definition of Commonwealth contract for consistency with proposed section 71 of the PID Act (as amended by item 90 of Part 7 of Schedule 1 to the Bill which would define agency as a Commonwealth entity or a prescribed authority ).

Item 15—At the end of section 30

7.91                 This item would insert new subsection 30(4) at the end of section 30 of the PID Act which would provide that a Commonwealth contract does not include a grant covered by an instrument made under section 105C of the PGPA Act.

7.92                 This item would complement proposed amendments to the definition of Commonwealth contract contained in section 8 of the PID Act (see item 4 of Schedule 2).

7.93                 This item, together with item 4 of Schedule 2, would implement recommendation 30 of the Moss Review by removing grant recipients from the scope of the PID Act. The Moss Review identified situations where grant recipients had been captured by the definition of ‘contracted service provider’ contrary to the policy intention of the PID Act. As observed in the Moss Review, grant recipients should be excluded from the PID Act because they are generally at arm’s length from Government and Commonwealth public sector agencies, unlike contracted service providers or contractors more generally who work in close collaboration with Government.

Item 16—Section 34

7.94                 This item would omit ‘conduct:’ and substitute this reference with ‘conduct.’ in existing section 34 of the PID Act.

7.95                 This item would be a technical amendment to make a grammatical correction.

Item 17—Paragraph 67(1)(a)

7.96                 This item would omit ‘public interest disclosure covered by item 4 of the table in subsection 26(1) (a legal practitioner disclosure )’ and substitute this reference with ‘legal practitioner disclosure’ in existing paragraph 67(1)(a) of the PID Act.

7.97                 This item would be a technical amendment for simplicity and to complement proposed amendments to the definition of a legal practitioner disclosure contained in section 8 of the PID Act (see item 6 of Schedule 2).

Item 18—Section 77

7.98                 This item would repeal existing section 77 of the PID Act and substitute a new section 77 to align the delegation powers of the Ombudsman and the IGIS with the principal officers of other agencies and enable the issuing of governing directions alongside such delegations.

7.99                 Existing section 77 of the PID Act distinguishes the delegation powers of principal officers (other than the Ombudsman or the IGIS), the Ombudsman and the IGIS. The section currently provides that:

•        a principal officer of an agency (other than the Ombudsman or the IGIS) may, by writing, delegate any or all of their functions or powers under the PID Act to a public official belonging to the agency

•        the Ombudsman may, by writing, delegate any or all of their functions or powers under the PID Act to a Deputy Ombudsman or a member of staff mentioned in section 31 of the Ombudsman Act (which provides that members of staff shall be persons engaged under the Public Service Act)

•        the IGIS may, by writing, delegate any or all of their functions or powers under the PID Act to a member of staff mentioned in section 32 of the IGIS Act

-       section 32 of the IGIS Act provides that APS employees and persons employed by written agreement of the IGIS to perform functions and exercise powers in relation to inquiries or reports are members of staff.

7.100             The Ombudsman and the IGIS are the principal officers of their respective agencies. However, current subsections 77(2) and (3) of the PID Act limit the delegation powers of the Ombudsman and the IGIS to their own respective staff, as defined in each agency’s enabling legislation (as mentioned above). This means that the Ombudsman, unlike other Commonwealth agencies, cannot delegate functions to external contractors who may be engaged to undertake PID investigations, as contractors do not fall within scope of section 31 of Ombudsman Act.

7.101             The engagement of contractors to undertake specified work is a common practice in Commonwealth agencies, as contractors can have unique expertise or experience which make them best placed to consider a particular matter. This item recognises that there may be circumstances where it would be appropriate for the Ombudsman or the IGIS to engage an external contractor to undertake or assist with a PID investigation, for example where the contractor can provide technical expertise in relation to the subject-matter of the public interest disclosure.

7.102             This item would align the existing delegation provisions relating to the Ombudsman and the IGIS under existing subsections 77(2) and (3) with existing subsection 77(1), which is the general delegation provision for principal officers. Minor amendments would also be made to subsection 77(1) to accommodate this amendment.

•        New subsection 77(1) would provide that the principal officer of an agency, may by writing, delegate any or all of their functions or powers under the PID Act to a public official belonging to the agency. The proposed note to proposed subsection 77(1) would make clear that the Ombudsman and the IGIS are the principal officers of their respective agencies.

•        New subsection 77(2) would introduce an additional safeguard for delegations by requiring that a person exercising functions or powers under a delegation under proposed subsection 77(1), must comply with any directions of the principal officer who delegated the function or power. This would mean a principal officer may delegate powers subject to any direction imposed, thereby affording the principal officer with greater control over how a delegate would exercise their power.

7.103             This item would address this existing limitation in the PID Act and would provide an appropriate degree of flexibility to the Ombudsman and the IGIS by expressly enabling both agencies (subject to any directions from either agency’s principal officer) to delegate functions to public officials belonging to the agency. For the purposes of the PID Act, this would authorise delegation to a contracted service provider, an employee of a contracted service provider, or a service provider, for a Commonwealth contract due to the operation of existing section 69(1) table items 15 and 16 of the PID Act).

7.104             This amendment would not change who a principal officer can delegate any or all of their functions or powers to.

Item 19—After Paragraph 78(1)(c)

7.105             This item would insert proposed paragraph 78(1)(ca) in existing subsection 78(1) of the PID Act, which deals with liability for acts or omissions done in good faith. This item would extend this protection to persons assisting a principal officer or a delegate of the principal officer.

7.106             Currently immunities from any disciplinary action, or criminal or civil liability under existing section 78 of the PID Act are limited to:

•        the principal officer or their delegate

•        an authorised officer, or

•        a supervisor of a person who makes a disclosure.

7.107             As such, public officials who assist the principal officer or their delegate (as the PID Act requires them to do) do not receive these immunities.

7.108             This item would support items 36, 38 and 40 of Part 3 of Schedule 1, which would introduce the concept of when a person provides assistance in relation to a disclosure under the PID Act. This concept would operate in addition to existing obligations on public officials to use their best endeavours to assist the principal officer (in addition to the Ombudsman and/or the IGIS, and other public officials as relevant) to perform their respective functions under the PID Act: see section 61 of the PID Act as amended by items 60 and 61 of Part 3 of Schedule 1. Despite section 61, public officials who assist the principal officer or their delegate do not currently receive these immunities.

7.109             This item would reassure public officials providing assistance to the principal officer in relation to a disclosure by reducing their civil liability for actions done in good faith in providing such assistance. This would, in turn, support better investigations of disclosures and facilitate a pro-disclosure culture within government.

Item 20—At the end of subsection 78(1)

7.110             This item would insert new paragraph 78(1)(f) at the end of existing subsection 78(1) of the PID Act, which would acknowledge the circumstances in which persons who provides assistance in relation to a disclosurewould receive protections under section 78 of the PID Act.

7.111             This item would provide that persons who provide assistance would be provided with protections under section 78 of the PID Act for actions done (or omitted to be done) in good faith in assisting the principal officer or delegate in the performance (or purported) performance of the functions, or exercised (or purported) exercise of their powers under the PID Act.

7.112             This item would support items 36, 38 and 40 of Part 3 of Schedule 1 and item 19 of Schedule 2 to appropriately protect persons who provides assistance in relation to a disclosure under the PID Act.

Item 21—Section 82A

7.113             This item would repeal existing section 82A of the PID Act and substitute at new section 82A requiring a statutory review of the PID Act 5 years after the commencement of amendments in this Bill.

7.114             This item would implement recommendation 1 of the Moss Review by providing that the PID Act be reviewed 5 years after the commencement of the amendments in this Bill. The Moss Review considered that regular reviews (every 3 to 5 years) are necessary to enable the PID Act’s operation to be assessed and regard be given to new research and developments in similar state and territory legislation. The Moss Review noted that it was essential that the recommended changes to the PID Act are evaluated at a future point to ensure that the policy objective of promoting integrity and accountability within the Commonwealth public sector based on a pro-disclosure culture is being met.

7.115             New section 82A would provide for a 5-year review period to allow time for greater evidence of the practical operation of the amendments to inform the review.

 

 

 



 

This Schedule would outline how the proposed amendments would commence.

Item 1—Definitions for Schedule 3

7.116             This item would define the terms ‘ Act ’ and ‘ commencement ’ for the purposes of Schedule 3 as follows:

•        Act ’ means the ‘Public Interest Disclosure Act 2013’.

•        commencement ’ means the day Schedule 3 commences.

Item 2—Application of amendments—general rule

7.117             This item would provide a general rule for the application of amendments in Schedules 1 and 2 to the PID Act.

7.118             The item would state that subject to Schedule 3, the amendments of the PID Act made by Schedules 1 and 2 to the PID Act apply in relation to:

•        a disclosure made on or after commencement; and

•        conduct that is the subject of such a disclosure, whether the conduct occurs (or is alleged to have occurred) before, on or after commencement.

7.119             This item clarifies that the amendments made by Schedules 1 and 2 would apply retrospectively to conduct that is the subject of a disclosure that occurred before the commencement of the amendments (subject to items 3 to 6 in Schedule 3, below), if a disclosure about that conduct was made on or after commencement.

Item 3—Protections against reprisals etc.

7.120             This item would relate to Part 3 of Schedule 1 to the Bill (Protections and civil remedies).

7.121             This item would provide that the protections outlined in Part 3 of Schedule 1 relating to engaging in conduct that constitutes taking a reprisal will apply only where the relevant conduct occurs on or after the commencement of the reforms. This aims to prevent retrospective application of the offence provisions or provisions significantly impacting individuals’ liabilities.

Item 4—Six-monthly reports by the Ombudsman

7.122             This item would relate to the Ombudsman’s amended annual reporting obligation under section 76 (as amended by items 65 to 68 of Schedule 1 of this Bill), and the new 6-monthly reporting obligation on the Ombudsman under proposed section 76A (as inserted by item 69 of Schedule 1 of this Bill). The Ombudsman’s annual and 6-monthly report must contain the information outlined in paragraphs 76(2)(a) to (d).

7.123             The commencement of the new amendments would occur on a date that allows a full 6-month period to elapse prior to the reporting obligation occurring. This is necessary, as otherwise, the first report under the new provisions may be incomplete and not reflect a full 6-month period. Paragraphs (a) and (b) of item 4 would set this out.

7.124             Paragraph (a) of item 4 would provide that if the reforms to section 76 and proposed section 76A commence between 1 January and 30 June in a calendar year, the reforms apply in relation to information covered by paragraphs 76(2)(a) to (d) on and after 1 July in that year. This means that the first affected report after commencement would be the section 76A 6-monthly report based on information about the operation of the PID Act in the period 1 July to 31 December in the commencement calendar year.

7.125             Paragraph (b) of item 4 provides that if the reforms commence between 1 July and 31 December in a calendar year, the reforms apply in relation to information covered by paragraphs 76(2)(a) to (d) on and after 1 January in the following calendar year. This means that the first affected report after commencement would be the section 76 annual report based on information about the operation of the PID Act in the period 1 January to 30 June in the calendar year following commencement. This delay is appropriate as it means that a full 6-month period has elapsed, allowing the Ombudsman to report on the full 6-month period.

Item 5—Machinery of Government changes

7.126             This item would relate to the application of the machinery of government changes in Part 6 of Schedule 1 to the Bill.

7.127             Paragraphs (a) and (b) of item 5 would provide that if the machinery of government reforms apply in relation to a machinery of government change, the reforms would apply irrespective of whether the disclosure or the conduct that is the subject of the disclosure occurs before, on or after commencement of the reforms.

7.128             Paragraphs (c) and (d) of item 5 are intended to have the effect that once a matter is transferred between agencies under the reforms, the way it is handled by the new agency is governed by the general rule outlined in item 2 of this Schedule. However, for the purposes of clarity, it is appropriate to restate those general principles through paragraphs (c) and (d) of item 5.

 

 



 

7.129             This Schedule to the Bill would make contingent amendments to the NACC Act and the NACC Consequential Act when enacted, and the PID Act.

7.130             These amendments are necessary to support the operation of the NACC once it is established, and to ensure that reprisal protections for disclosers remain consistent across the NACC and PID Act frameworks.

PART 1—Repeal of items from the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 if this act commences first

7.131             This Part would repeal certain items from Schedule 1 to the NACC Consequential Bill that would amend the PID Act. These amendments would become unnecessary or unable to be made if this Bill commences before Schedule 1 to the NACC Consequential Bill.

7.132             This Part would commence immediately before the commencement of Schedule 1 to the NACC Consequential Bill. However, this Part would not commence at all if Schedule 1 to the NACC Consequential Bill commences before the provisions in Schedules 1 to 3 of this Bill.

National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022

Item 1—Items 163, 171 to 174 and 182 of Schedule 1

7.133             This item would repeal the following items of Schedule 1 to the NACC Consequential Bill:

•        Item 163 , which would amend the overview of the PID Act in subsection 7(2) of that Act to provide that there are 5 kinds of PIDs set out in Division 2 of Part 2 of the PID Act, rather than 4 (the fifth being a NACC disclosure: see item 168 of Schedule 1 to the NACC Consequential Bill). If this Bill commences first, item 163 would no longer be required, as item 3 of Schedule 2 to this Bill would substantially amend section 7 of the PID Act such that it is unable to be amended in the manner envisaged by item 163. The amendment that would have been made by item 163 of Schedule 1 to the NACC Consequential Bill would instead be made through item 6 of Part 4 of Schedule 4 to this Bill.

•        Items 171 and 172 , which would amend section 43 of the PID Act to:

-       provide that an authorised officer’s obligation to use their best endeavours to allocate a disclosure does not arise if a stop action direction under the NACC Bill is in place in relation to the disclosure; and

-       provide that the authorised officer’s obligation (and the 14-day period to comply with the obligation) restarts on a day on which the officer becomes aware that the direction no longer applies

Item 11 of Schedule 1 of this Bill would substantially amend section 43 of the PID Act such that it is unable to be amended in manner envisaged by items 171 and 172 of Schedule 1 to the NACC Consequential Bill. The effect of the amendments that would have been made by items 171 and 172 of Schedule 1 to the NACC Consequential Bill would instead be made through items 13 and 14 of Part 4 of Schedule 4 to this Bill.

•        Items 173 and 174 , which would amend section 44 of the PID Act to:

-       impose an obligation on authorised officers to notify the Ombudsman or the IGIS (as appropriate) when a disclosure cannot be allocated because of a stop action direction issued under the NACC Bill; and

-       clarify that the obligation to give notice to the Ombudsman or the IGIS would apply despite any stop action direction issued under the NACC Bill.

Item 11 of Schedule 1 to this Bill would substantially amend section 44 such that it is unable to be amended in the manner envisaged by items 173 and 174. The amendments that would have been made by items 173 and 174 of Schedule 1 to the NACC Consequential Bill would instead be given effect to by item 15 of Part 4 of Schedule 4 to this Bill.

•        Item 182 , which would amend subsection 52(1) of the PID Act to provide that the 90-day statutory timeframe for a disclosure investigation to be completed is reset when the principal officer becomes aware that a stop action direction issued under the NACC Bill no longer applies. Item 31 of Schedule 1 to this Bill substantially amends subsection 52(1) of the PID Act such that it is unable to be amended in the manner envisaged by item 182. The effect of the amendment that would have been made by item 182 would instead be made through item 23 of Part 4 of Schedule 4 to this Bill.



 

Part 2—Amendments that commence if the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 commences before this act

7.134             This Part would amend the notification requirements for principal officers under section 50 of the PID Act in circumstances where Schedule 1 to the NACC Consequential Bill commences before the Bill.

7.135             This Part would commence immediately after the commencement of Schedules 1 to 3 to the Bill. However, this Part would not commence at all if Schedule 1 to the NACC Consequential Bill has not commenced before Schedules 1 to 3 to this Bill. This is appropriate as the amendment in this Part would only be required if Schedule 1 to the NACC Consequential Bill commences before the Bill. If the Bill commences before Schedule 1 to the NACC Consequential Bill, the required amendment would be made to the PID Act through item 178 of Schedule 1 to the NACC Consequential Bill.

Public Interest Disclosure Act 2013

Item 2—Subsection 50(4)

7.136             Item 179 of Schedule 1 to the NACC Consequential Bill would insert into the PID Act new subsection 50(4A), which would require the principal officer to inform the discloser if the principal officer investigates, or further investigates, a disclosure that is no longer subject to a stop action direction under the NACC Bill. Item 178 of Schedule 1 to the NACC Consequential Bill would amend section 50(4) of the PID Act to clarify that the principal officer cannot inform the discloser of an investigation under subsection 50(4A) of the PID Act in the same document that informs the discloser of an allocation decision under subsection 44(2) of the PID Act. These amendments would recognise that, practically, notification of an allocation and notification of an investigation in the relevant context would occur at different times.

7.137             However, item 24 of Schedule 1 to this Bill may repeal and replace amended subsection 50(4) of the PID Act without incorporating the amendment made by item 178 of Schedule 1 to the NACC Consequential Bill.

7.138             This item would then be required to amend new subsection 50(4) of the PID Act to remake the amendment made by item 178 of Schedule 1 to the NACC Consequential Bill.

Part 3—Amendments that commence after this Act and the National Anti-Corruption Commission Act 2022 commence

7.139             This Part would amend the NACC Bill to align the reprisal protections in the NACC Bill with the amendments made by Part 3 of Schedule 1 to this Bill. This Part of Schedule 4 would ensure that protections from reprisal action for disclosers remain consistent across the NACC and PID Act frameworks.

7.140             This Part of Schedule 4 would commence immediately after the commencement of Schedules 1 to 3 of the Bill, or immediately after the commencement of section 40 of the NACC Bill, whichever is later. However, this Part would not commence at all if section 40 of the NACC Bill does not commence. This is appropriate as this Part of Schedule 4 would amend the NACC Bill.

National Anti-Corruption Commission Act 2022

Item 3—Subsections 29(1) and (2)

7.141             This item would repeal subsections 29(1) and 29(2) of the NACC Bill and substitute a new definition of what it means to ‘take a reprisal’ and ‘detriment’ for the purposes of the NACC Bill.

7.142             This would ensure that these definitions in the NACC Bill continue to align with the same definitions in the PID Act as amended by items 41 to 44 of Schedule 1 to this Bill.

The meaning of ‘takes a reprisal’

7.143             Subsection 29(1) provides that a reprisal occurs where a person (the first person) causes (by act or omission) any detriment to another person (the second person).

7.144             At the time the first person’s act or omission occurs, the first person must believe or suspect that the second person (or any other person) made, may have made or is proposing to make, a NACC disclosure (as defined under section 23 of the NACC Bill).

7.145             Subsection 29(1) also requires that the first person’s belief or suspicion about the NACC disclosure is the reason (or part of the reason) for their act or omission that caused detriment to the second person.

7.146             This item would amend the definition of ‘takes a reprisal’ in subsection 29(1) of the NACC Bill to clarify that reprisal action includes conduct that consists of a threat to cause detriment (for example, a person directly threatening another person) or conduct that results in a threat to cause detriment to a person (for example, where a person directs another person to make a threat). This would align the definition of takes a reprisal with the definition of ‘detrimental conduct’ in the private sector whistleblower scheme under in paragraph 1317AD(1)(a) of the Corporations Act.

7.147             This is appropriate to clarify the scope of subsection 29(1) of the NACC Bill by expressly clarifying that reprisal action includes direct and indirect threats to cause detriment to a person.

7.148             This item would also amend subsection 29(1) of the NACC Bill to extend the definition to reprisals taken against persons who could make a NACC disclosure

7.149             For example, the amended definition of ‘takes a reprisal’ would apply to individuals who could make a NACC disclosure because they:

•        have become aware of information concerning a corruption issue that could be disclosed to the NACC; or

•        are suspected of being aware of information concerning a corruption issue that could be disclosed to the NACC, when they are in fact not aware of the relevant information.

7.150             Item 41 of Schedule 1 to the Bill would make corresponding amendments to clarify what constitutes taking a reprisal under section 13 of the PID Act. This amendment would ensure that the definition of ‘takes a reprisal’ in the NACC Bill remains consistent with the PID Act.

Meaning of NACC disclosure

7.151             A NACC disclosure would have the same meaning as in the NACC Bill (as defined in section 23 of that Bill) for the purposes of determining what constitutes taking a reprisal under the NACC Bill.

7.152             A person makes a NACC disclosure if they refer, or provide information about, a corruption issue or a NACC corruption issue to the NACC Commissioner, the IGIS, or the NACC Inspector. A person would also make a NACC disclosure if they give evidence or information, or produce a document or thing to a NACC Commissioner, the IGIS or the NACC Inspector in relation to:

•        a corruption issue;

•        a NACC Act process, including a corruption investigation;

•        a NACC corruption issue; or

•        a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

7.153             Further information about these concepts is provided in the Explanatory Memorandum to the NACC Bill and the NACC Consequential Bill.

The meaning of detriment

7.154             Subsection 29(2) of the NACC Bill defines detriment for the purposes of taking a reprisal and the reprisal offence in amended section 30 (see item 4).

7.155             Currently, in subsection 29(2), detriment has its ordinary meaning and includes disadvantage with respect to the second person’s employment, including termination or an alteration of their position to their detriment.

7.156             This item would expand the definition of detriment to include harassment or intimidation of a person, harm or injury to a person (including psychological harm), and damage to a person’s property, reputation, business or financial position.

7.157             New paragraph 29(2)(j) would also extend the definition of detriment to expressly cover any damage of any other kind. This is intended to cover any damage that is not dealt with in the preceding paragraphs of subsection 29(2).

7.158             This amendment would recognise that detriment goes beyond harm to a person’s employment and would provide greater protections to any person who provides information or evidence to the NACC about a corruption issue.

7.159             This amendment would ensure that the definition of detriment in the NACC Bill remains consistent with the PID Act (as amended by items 42 to 44 of Schedule 1 to the Bill), and would also align with the definition of detriment used in the private sector whistleblowing scheme in Part 9.4AAA of the Corporations Act.

Item 4—Section 30

New section 30—Reprisals in relation to NACC disclosures—Offences

7.160             This item would amend the offences in section 30 of the NACC Bill to be consistent with section 19 of the PID Act as amended by item 46 of Schedule 1 to this Bill. It would reflect changes to the scope of the offences, and clarify the requisite physical and fault elements to make the offences easier to apply. This amendment would ensure that the reprisal offence provisions in the NACC Bill remain consistent with those in the PID Act.

7.161             The reprisal offences in the NACC Bill do not include the corresponding civil penalty for the term of imprisonment (2 years). Section 4B of the Crimes Act 1914 (Cth) (Crimes Act) provides the formula for converting a term of imprisonment into civil penalty units. This section provides that, unless expressly excluded, the court may impose a corresponding pecuniary penalty instead of or in addition to the penalty of imprisonment, without explicitly providing for such a conversion in an offence provision. As a consequence, it is not necessary to include a civil penalty for the term of imprisonment for the offences in the NACC legislation due to the operation of section 4B of the Crimes Act.

New subsections 30(1) and 30(2)—Clarifying physical and fault elements

7.162             This item would replace the offences in subsections 30(1) and 30(3) of the NACC Bill, consistent with item 46 of Schedule 1 to this Bill. This amendment would provide greater clarity of the physical and fault elements in the existing offences of taking a reprisal by causing detriment.

7.163             The physical and fault elements of these offences have been redrafted to make clear that there are specific fault elements for these offences, which are not the standard fault elements that would ordinarily be applicable under the Criminal Code.

New subsection 30(1)—Taking a reprisal by causing detriment

7.164             This subsection would provide that a person (the first person) would commit an offence in relation to another person (the second person) if they:

•        engage in conduct (paragraph 30(1)(a)); and

•        the conduct results in detriment to the second person (paragraph 30(1)(b)); and

•        when the conduct is engaged in, they believe or suspect that the second person, or another person, has made, may make, proposes to make or could make a NACC disclosure (paragraph 30(1)(c)); and

•        this belief or suspicion is all or part of the reason for engaging in the conduct (paragraph 30(1)(d)).

7.165             The physical elements of the offence in the new subsection 30(1) are:

•        for paragraph 30(1)(a)—conduct for paragraph 4.1(1)(a) of the Criminal Code. For example, a person (the first person) engages in conduct in relation to another person (the second person);

•        for paragraph 30(1)(b)—a result of conduct for paragraph 4.1(1)(b) of the Criminal Code;

•        for paragraph 30(1)(c)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code. For example, the conduct occurred because the first person believed or suspected that the second person (or any other person) had made, may have made, proposed to make or could have made a NACC disclosure; and

•        for paragraph 30(1)(d)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code.

7.166             The fault element for paragraph 30(1)(a)—concerning the person engaging in conduct—would be intention, in accordance with subsection 5.6(1) of the Criminal Code.

7.167             The fault element for paragraphs 30(1)(b) is recklessness, in accordance with section 5.6 of the Criminal Code.

7.168             The fault element for paragraphs 30(1)(c) and (d) is belief or suspicion, as stated in the provisions.

New subsection 30(2)—Taking a reprisal by a threat to cause detriment

7.169             This subsection would provide that a person (the first person) would commit an offence in relation to another person (the second person) if:

•        they engage in conduct (paragraph 30(2)(a)); and

•        engaging in the conduct consists of, or results in, a threat to cause detriment to the second person (paragraph 30(2)(b)); and

•        they are reckless as to whether the second person fears that the threat would be carried out (paragraph 30(2)(c)); and

•        when the conduct is engaged in, the first person believes or suspects that the second person, or any other person has made, may have made, proposes to make or could make a NACC disclosure (paragraph 30(2)(d)); and

•        the belief or suspicion is the reason, or part of the reason, for engaging in the conduct (paragraph 30(2)(e)).

7.170             The physical elements of the offence in new subsection 30(2) are:

•        for paragraph 30(2)(a)—conduct for paragraph 4.1(1)(a) of the Criminal Code. For example, the first person threatens to take reprisal against a second person, or directs someone else to threaten the second person with reprisal.

•        for paragraph 30(2)(b)—a result of conduct for paragraph 4.1(1)(b) of the Criminal Code. For example, the first person engages in conduct in relation to the second person that either threatens to cause detriment to that person either by the first person themselves, or by some other person at the direction of the first person.

•        for paragraphs 30(2)(c) to 30(2)(e)—a circumstance in which conduct occurs for paragraph 4.1(1)(c) of the Criminal Code. For example, the conduct occurred because the first person believed or suspected that the second person (or any other person) had made, may have made, proposed to make or could have made a NACC disclosure.

7.171             The fault element for paragraph 30(2)(a) would be intention, in accordance with subsection 5.6(1) of the Criminal Code. This would require that:

•        the first person intended to make a threat to the second person; or

•        the first person intended to engage in conduct that resulted in a threat being made to the second person, either by the first person themselves or by some other person at the direction of the first person.

7.172             The fault element for paragraphs 30(2)(b) and (c) is recklessness, in accordance with section 5.6 of the Criminal Code.

7.173             The fault element for paragraphs 30(2)(d) and (e) is belief or suspicion, as stated in the provisions.

New subsections 30(1) and 30(2)—Offences apply where a person ‘could’ make a disclosure

7.174             This item would amend section 30 of the NACC Bill to extend protection from reprisal action to a person who could make a disclosure to the NACC about a corruption issue. This amendment would align protections in the NACC Bill with those afforded under section 19 of the PID Act (as amended by item 46 of Schedule 1 to this Bill).

7.175             The existing reprisal offences in subsections 30(1) and 30(3) of the NACC Bill do not apply to a reprisal taken against a person who could make a NACC disclosure. This reflects the current definition of ‘takes a reprisal’ in subsection 29(1), which is limited to a person who made, may have made or proposes to make a NACC disclosure.

7.176             This amendment would reflect proposed changes to the definition of ‘takes a reprisal’ in subsection  29(1) of the NACC Bill as amended by item 3 of this Part of Schedule 4. This includes extending reprisal action to cover situations where the person engages in conduct on the belief or suspicion that a person could make a NACC disclosure (new subparagraph 30(1)(c)(iv)).

7.177             This amendment would criminalise taking a reprisal action against someone on the basis that they:

•        have become aware of information concerning a corruption issue that could be disclosed to the NACC; or

•        are suspected of being aware of information concerning a corruption issue that could be disclosed to the NACC, when they are in fact not aware of the relevant information.

7.178             Extending protections to cover people who could make a NACC disclosure would align protections with those afforded under the private sector whistleblowing scheme in paragraph 1317AC(1)(c) of the Corporations Act. It would also support item 41 of Schedule 1 to this Bill in implementing recommendation 6.3 of the PJCCFS Report.

New subsection 30(2) and 30(3)—Threat to cause detriment

7.179             This item would amend the offence of threatening to cause detriment to capture conduct that ‘consists of’ a threat to cause detriment, but also conduct that ‘ results in ’ a threat to cause detriment (see new paragraph 30(2)(b)).

7.180             This amendment would ensure that the offence of taking a reprisal by a threat to cause detriment would capture direct and indirect threats. An example of conduct that results in a threat to cause detriment would include where a senior staff member directs a junior staff member to threaten detriment against a person who has made, could make, may make or proposes to make a NACC disclosure.

7.181             This amendment is appropriate to provide greater protections to disclosers. It would also assist to deter possible offenders by clarifying that it is an offence under the NACC Bill to directly or indirectly threaten to cause detriment to a person, and that a person cannot escape prosecution by instigating a threat that is ultimately carried out by someone else.

7.182             New subsection 30(3) would clarify that the offence of threatening to cause detriment applies whether or not the threat is express, implied, conditional or unconditional. This would replicate existing subsection 30(4) in the NACC Bill.

New subsection 30(4)—Exception for reasonable administrative action

7.183             This item would also clarify that an exception to behaviour that might otherwise constitute a reprisal offence under section 30 of the NACC Bill applies where a person takes administrative action that is reasonable to protect another person from detriment.

7.184             The note to proposed subsection 30(4) would provide that an evidential burden would be placed on the defendant, rather than a legal burden. This means the defendant would need to adduce evidence that suggests a reasonable possibility that their action was a reasonable administrative action in the circumstances. Once this evidence is adduced, the onus would shift back to the prosecution to prove beyond reasonable doubt that the conduct was not reasonable administrative action.

7.185             It is appropriate to place the evidential burden on the defendant as the question of whether something is reasonable administrative action will be peculiarly within the knowledge of the defendant, and will not be known to the prosecution.

7.186             Currently, the reprisal offence in the NACC Bill would require a prosecutor to prove that the relevant conduct was not reasonable administrative action for the purposes of determining whether someone has taken a reprisal under subsection 29(3). This means that the prosecution would be required to prove beyond reasonable doubt that:

•        the defendant was aware there was a substantial risk that their conduct was not reasonable administrative action to protect the second person from detriment; and

•        in all the circumstances known to the defendant, it was unjustifiable to take that risk.

7.187             This is a more difficult onus for the prosecution to discharge as it requires the prosecution to establish an absence of justification for the administrative action. The inherent difficulty for the prosecution in establishing the absence of justification would otherwise present a barrier to the effectiveness of the reprisal offence.

New Subsection 30(5)—No requirement to prove matters related to a NACC disclosure

7.188             Existing subsection 30(2) provides that, in a prosecution for the offence of taking a reprisal under subsection 30(1) the NACC Bill, it would not be necessary to prove that any person has made, may have been made, proposes to make or could make a NACC disclosure.

7.189             New subsection 30(5) would broadly replicate existing subsection 30(2) by providing that, in a prosecution for either offence under section 30 (taking a reprisal by causing detriment or threatening to cause detriment), it is not necessary for the prosecution to prove that a person has made, may make, proposes to make, or could make a NACC disclosure.

Item 5—Application provisions

7.190             This item would set out when the amendments made to the NACC Bill by this Part of Schedule 4 would apply.

7.191             The amendments would apply in relation to conduct that is engaged in on or after the commencement of this Part that would:

•        Constitute taking a reprisal against a person within the meaning of section 29 of the NACC Bill (as amended by item 3 of this Part of Schedule 4 to this Bill); or

•        constitute an offence of taking a reprisal by causing detriment or the offence of taking a reprisal by threatening to cause detriment under section 30 of the NACC Bill (as amended by item 4 of this Part of Schedule 4 to this Bill).

7.192             This is appropriate to ensure that the amended offence provisions in the NACC Bill do not apply retrospectively to conduct that occurred before their commencement. This is particularly important given that the amendments in this Part of Schedule 4 would broaden the scope of the offence provisions to criminalise reprisal against a person on the basis that they could make a NACC disclosure, as well as criminalising conduct that results in a threat to cause detriment being made to a person.

7.193             The amendments would also apply to a NACC disclosure that was made, or believed or suspected to have been made before, on or after the commencement of this Part if the disclosure (or the belief or suspicion of the disclosure) was the reason, or part of the reason, for engaging in reprisal action.

7.194             It is necessary for these amendments to apply to NACC disclosures that were made before their commencement. This is intended to capture circumstances where a person (the first person) takes a reprisal against another person (the second person) after the commencement of this Part in relation to a NACC disclosure made by the second person before the commencement of this Part. This is appropriate as the relevant conduct for the reprisal offences is when the reprisal action occurred, not when the disclosure was made.



 

Part 4—Amendments that commence after this Act and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 commence

7.195             This Part would amend the PID Act to support the establishment and operation of the NACC, and would commence once Schedules 1 and 3 of this Bill, and Schedule 1 to the NACC Consequential Bill, have both commenced. This Part would ensure that all required amendments are in place to support the interaction of the PID Act and the NACC legislation. This Part would not commence at all if Schedule 1 to the NACC Consequential Bill does not commence. This is because this Part of the Bill would amend provisions contained in the PID Act as amended by Schedules 1 and 3 to this Bill and Schedule 1 to the NACC Consequential Bill.

Public Interest Disclosure Act 2013

Item 6—Section 7 (paragraph beginning “There are 4 kinds”)

7.196             This item would amend the simplified outline of the PID Act as inserted by item 3 of Schedule 2 to this Bill.

7.197             Item 6 would provide that there are 5 kinds of PIDs under section 26 of the PID Act following the commencement of the NACC legislation, rather than 4. Item 168 of Schedule 1 to the NACC Consequential Bill amends section 26 of the PID Act to provide that a NACC disclosure (within the meaning of the NACC Bill) constitutes a PID under the PID Act in certain circumstances.

Item 7—Section 7 (at the end of the paragraph beginning “There are 4 kinds”)

7.198             Similarly, this item would amend the list of PIDs contained in the simplified outline of the PID Act (as inserted by item 3 of Schedule 2 of this Bill) to insert a new paragraph concerning NACC disclosures.

Item 8—Section 7 (paragraph beginning “The protection provisions”)

7.199             This item would amend the simplified outline to explain that the protection provisions in Division of 1 of Part 2 of the PID Act would apply to NACC disclosures, in addition to other types of disclosures covered by the PID Act. This amendment to the simplified outline of the PID Act is appropriate as it would clarify that protections under Division 1 of Part 2 of the PID Act would extend to cover public officials or former public officials who make a PID directly to the NACC (instead of, or in addition to, making an internal disclosure to their supervisor or an authorised officer within their agency).

Item 9—Section 8

7.200             This item would insert a definition of corruption issue into the PID Act. This definition would have the same meaning as under section 9 of the NACC Bill.

7.201             A corruption issue under section 9 of the NACC Bill is a key concept that would establish the scope of the NACC’s jurisdiction, and would be an issue of whether a person:

•        has already, at some time in the past, engaged in corrupt conduct as defined in section 8 of the NACC Bill;

•        is currently engaging in corrupt conduct; or

•        will, at any time in the future, engage in corrupt conduct.

7.202             A corruption issue under the NACC Bill does not include a NACC corruption issue. A NACC corruption issue is defined in section 201 of the NACC Bill to include alleged corrupt conduct with a connection to the NACC (for example, because it concerns the conduct of a NACC staff member).

7.203             This item is appropriate to support the interaction between the NACC Bill and the PID Act once the NACC commences operation. Including a definition of corruption issue in the PID Act is also necessary to support the effective operation of items 12, 19 and 24 of this Part of Schedule 4.

Item 10—Subsection 43(3)(note)

7.204             This item would make an editorial amendment to the note at the end of subsection 43(3) of the PID Act (as amended by item 11 of Schedule 1 of the Bill). It would omit reference to ‘Note’ and substitute ‘Note 1’.

7.205             This item is necessary to support item 11 of this Part which inserts a second note at the end of subsection 43(3) of the PID Act.

Item 11—At the end of subsection 43(3)

7.206             This item would insert a note at the end of subsection 43(3) of the PID Act (as amended by item 11 of Schedule 1 to the Bill) to clarify the effect of a stop action direction issued under the NACC Bill on the allocation of a disclosure.

7.207             The note would explain that an authorised officer cannot allocate a disclosure under section 43 of the PID Act if the disclosure is subject to a stop action direction under the NACC Bill.

Item 12—After subsection 43(4)

7.208             This item would amend section 43 of the PID Act to insert new subsection 43(4A).

7.209             Section 43 of the PID Act (as amended by item 11 of Schedule 1 to this Bill) provides that an authorised officer must allocate a disclosure to one or more agencies and sets out requirements that an authorised officer must consider in deciding how to allocate a disclosure.

7.210             Subsection 43(4) would provide that an authorised office may decide not to allocate a disclosure to an any agency if they are satisfied on reasonable grounds that:

•        there is no reasonable basis on which the disclosure could be considered an internal disclosure under section 26 of the PID Act; or

•        the conduct disclosed would be more appropriately investigated under another law or power.

7.211             New subsection 43(4A) as inserted by this item would qualify the second ground by providing that an authorised officer cannot make a decision not to allocate a disclosure because it would be more appropriately investigated under another law or power only because the conduct disclosed raises a corruption issue.

7.212             This would mean that an authorised officer who receives a disclosure that raises a corruption issue would be unable to make a decision not to allocate the disclosure to another agency merely because the officer or another person has referred the issue to the NACC Commissioner for consideration.  This amendment reflects the effect of section 39 of the NACC Bill, which provides that, in the absence of a stop action direction issued under the NACC Bill, any obligation on an authorised officer or principal officer to handle a disclosure remains unaffected by a decision to refer the disclosure to the NACC. This is appropriate to ensure that persons with obligations under the PID Act continue to meet those obligations after making a referral to the NACC Commissioner.

7.213             This item would also insert a note to subsection 43(4A). The note would expressly clarify that disclosures that raise a corruption issue can continue to be handled in accordance with Part 3 of the PID Act unless a stop action direction has been issued under the NACC Bill in relation to the disclosure. Where a stop action direction has been issued in relation to the disclosure, the authorised officer would be unable to allocate that disclosure until the stop action direction is revoked.

Item 13—At the end of subsection 43(11)

7.214             This item would amend subsection 43(11) of the PID Act (as amended by item 11 of Schedule 1 to the Bill).

7.215             Subsection 43(11) of the PID Act would provide that an authorised officer must use their best endeavours to allocate a disclosure to one or more agencies within 14 days.

7.216             This item would insert new paragraph 43(11)(c) requiring an authorised officer to use their best endeavours to allocate a disclosure within 14 days from the day on which the authorised officer became aware that a stop action direction in relation to the disclosure has been revoked by the NACC Commissioner and no longer applies. This means that the time an authorised officer has to allocate a PID restarts where that allocation has been interrupted by a stop action direction (see item 14 below).

7.217             This is appropriate to ensure that referral to the NACC Commissioner does not result in significant or unnecessary delay to the allocation and investigation of a PID within an agency. The timely allocation and investigation of PIDs is important to ensure the PID Act remains an effective mechanism to deal with disclosures of suspected wrongdoing within the Commonwealth public sector.

Item 14—At the end of section 43

7.218             This item would insert new subsection 43(12) to provide that an authorised officer’s obligation to use their best endeavours to allocate a disclosure does not arise if a stop action direction under the NACC Bill is in place in relation to the disclosure.

7.219             This exception to the requirement to allocate a disclosure would be in addition to the existing exceptions under subsection 43(4) for circumstances where the authorised officer is satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure (see paragraph 43(4)(a)) or the conduct disclosed would be more appropriately investigated under another Commonwealth law or power (paragraph 43(4)(b)).

Item 15—After section 44A

7.220             This item would amend the PID Act to insert new section 44B. This section would create an obligation on authorised officers to notify the Ombudsman or the IGIS (as appropriate) if they are unable to allocate a PID because of a stop action direction under the NACC Bill.

7.221             This section would require an authorised officer to give written notice, as soon as reasonably practicable, to the Ombudsman about:

•        the information that was disclosed;

•        the disclosers name and contact details where those details are known to the authorised officer and the discloser consents to those details being shared with the Ombudsman; and

•        the stop action direction under the NACC Bill that prevents the allocation of the disclosure.

7.222             However, if the disclosure concerns conduct relating to an intelligence agency, the IGIS, or the intelligence functions of ACIC or the AFP, the authorised officer would be required to disclose the above information to the IGIS.

7.223             This item is appropriate to ensure that the oversight agencies responsible for overseeing the handling of PID investigations are kept informed of the status of those investigations and are able to effectively perform their oversight role where required.

Item 16—Subsection 45(2)

7.224             This item would amend subsection 45(2) of the PID Act (as amended by item 14 of Schedule 1 to the Bill) to omit reference to subsection 43(11) and substitute reference subsection 43(12).

7.225             Subsection 45(2) provides that the obligations and procedural requirements under sections 43 and 44 of the PID Act apply to an authorised officer making a decision to reallocate a disclosure under section 45 of the PID Act (as amended by items 12 to 14 of Schedule 1 to the Bill).

7.226             This item supports item 14 of this Schedule, which inserts new subsection 43(12) of the PID Act (concerning the effect of stop action directions). Item 16 would amend subsection 45(2) to provide that a stop action direction under the NACC Bill in relation to a disclosure would also prevent an authorised officer from reallocating the disclosure.

Item 17—Subsection 47(5)

7.227             This item would renumber subsection 47(5) of the PID Act to subsection 47(4) to address an inconsistency in subsection numbering arising from the commencement of item 176 of Schedule 1 to the NACC Consequential Bill and item 18 of Schedule 1 to this Bill.

Item 18—Paragraph 48(1)(ga)

7.228             This item would amend paragraph 48(1)(ga) as inserted by item 19 of Schedule 1 of this Bill.

7.229             It would insert ‘(but see subsection (1A))’ at the end of paragraph 48(1)(ga) which is necessary to support the operation of item 19 of this Part of Schedule 4 below.

Item 19—After subsection 48(1)

7.230             This item would insert new subsection 48(1A) into the PID Act to qualify paragraph 48(1)(ga).

7.231             Subsection 48(1) of the PID Act provides principal officers of Commonwealth agencies with discretion to decide not to investigate, or not to further investigate, a disclosure on certain grounds. Relevantly, paragraph 48(1)(ga) (as inserted by item 19 of Schedule 1 to this Bill) provides that a principal officer of an agency may decide not to investigate, or further investigate, a disclosure if they are satisfied on reasonable grounds that the disclosure would be more appropriately investigated under another law or power.

7.232             New subsection 48(1A) would qualify that ground by providing that a principal officer cannot make a decision not to investigate a disclosure because it would be more appropriately investigated under another law or power only because the conduct disclosed raises a corruption issue.

7.233             This would mean that a principal officer would be unable to make a decision not to investigate, or further investigate a disclosure, merely because the officer or another person has referred the issue to the NACC Commissioner for consideration.

7.234             This amendment reflects the effect of section 39 of the NACC Bill, which provides that, in the absence of a stop action direction issued under the NACC Bill, any obligation on an authorised officer or principal officer to handle a disclosure remains unaffected by a decision to refer the disclosure to the NACC. This is appropriate to ensure that persons with obligations under the PID Act continue to meet those obligations after making a referral to the NACC Commissioner.

7.235             This item would also insert a note to subsection 48(1A). The note would expressly clarify that disclosures that raise a corruption issue can continue to be handled in accordance with Part 3 of the PID Act unless a stop action direction has been issued under the NACC Bill in relation to the disclosure. Where a stop action direction has been issued in relation to the disclosure, the principal officer would be unable to investigate, or continue to investigate, the disclosure until the stop action direction is revoked.

Item 20—Subsection 50(4A)

7.236             This item would amend subsection 50(4A) to omit the word ‘inform’ and substitute ‘give written notice to’.

7.237             This amendment would provide greater clarity to agencies about their obligations to provide notice by specifying that notices under this section must be in writing and given as soon as reasonably practicable.

7.238             Similar amendments are made by items 22 and 26 of Schedule 1 to the Bill.

Item 21—Subsection 50A(3) (the subsection (3) inserted by item 181 of Schedule 1 to the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022

7.239             This item would repeal subsection 50A(3) which would be inserted by item 181 of Schedule 1 to the NACC Consequential Bill.

7.240             Item 181 of Schedule 1 to the NACC Consequential Bill would insert new subsection 50A(3) into the PID Act to require a principal officer to inform the Ombudsman of a stop action direction that prevents the principal officer from investigating, or further investigating, the disclosure. If the conduct that is the subject of a disclosure relates to an intelligence agency, the IGIS or the intelligence functions of either ACIC or the AFP, the principal officer would be required to inform the IGIS that a stop action direction under the NACC Bill is preventing them from investigating, or further investigating, a disclosure.

Item 22—At the end of section 50A

7.241             This item would insert new subsection 50A(4) into the PID Act to impose notification obligations on principal officers when a stop action direction in place under the NACC Bill in relation to a disclosure. This item would have the same effect as item 181 of Schedule 1 to the NACC Consequential Bill (as outlined above), with some minor amendments to clarify how and when the notice is to be provided.

7.242             New subsection 50A(4) would require a principal officer to provide written notice, as soon as reasonably practicable, to the Ombudsman or the IGIS (as appropriate) if there is a stop action direction under the NACC Bill which prevents the principal officer from investigating or further investigating, a disclosure under the PID Act.

7.243             This amendment is appropriate to ensure that the oversight agencies responsible for overseeing the handling of PID investigations are kept informed of the status of those investigations and are able to effectively perform their oversight role where required.

Item 23—After paragraph 52(1)(c)

7.244             This item would insert new paragraph after paragraph 52(1)(c) of the PID Act (as amended by item 31 of Schedule 1 to this Bill). Section 52 of the PID Act deals with the time limit for principal officers to complete investigations under the PID Act.

7.245             The new paragraph 52(1)(d) would provide that the 90-day statutory timeframe to complete a disclosure investigation is reset when a principal officer becomes aware that a stop action direction no longer applies in relation to the disclosure. For example, if the NACC issues a stop action direction in relation to a PID that is already being investigated by an agency, the agency would be required to stop the investigation. Once the stop action direction is revoked by the NACC Commissioner under subsection 43(3) of the NACC Bill, the principal officer would have 90-days to investigate the PID from the time they became aware that the stop action direction no longer applies.

7.246             It is appropriate that the timeframe for the investigation of a PID resets (rather than continues) once a stop action direction is revoked by the NACC Commissioner to ensure that the principal officer has enough time to effectively conduct an investigation under the PID Act.

Item 24—Paragraph 56(4)(b)

7.247             This item would amend paragraph 56(4)(b) of the PID Act (as amended by item 34 of Schedule 1 to this Bill) to replace references to the to the LEIC Act and the Integrity Commissioner with references to the NACC Bill and the NACC Commissioner. The LEIC Act would be repealed by item 1 of Schedule 1 to the NACC Consequential Bill.

7.248             Subsection 56(4) of the PID Act would excuse a person conducting a disclosure investigation under the PID Act from the obligation in subsection 56(3) to refer certain information concerning serious offences to the Australian Federal Police. This item would excuse the investigator from the obligation where the investigator suspects on reasonable grounds that the relevant information raises a corruption issue that has been referred under the NACC Bill (or has otherwise been brought to the attention of the NACC Commissioner of the IGIS, as appropriate).

Item 25—After subsection 56(4)

7.249             This item would insert a new subsection 56(4A) into the PID Act. This subsection would clarify that for the purposes of paragraph 56(4)(b) of the PID Act (as amended by item 24 of this Part of Schedule 4), the relevant person or agency is:

•        if the corruption issue concerns a Commonwealth agency other than an intelligence agency—the NACC Commissioner, or

•        if corruption issue concerns an intelligence agency or the ACIC or the AFP in relation to the intelligence functions of those agencies—the IGIS.