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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Public
Interest Disclosure Bill 2001
No. ,
2001
(Senator
Murray)
A Bill for an Act to encourage
the disclosure of conduct adverse to the public interest in the public sector,
and for related purposes
ISBN: 0642 460493
Contents
A Bill for an Act to encourage the disclosure of conduct
adverse to the public interest in the public sector, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Public Interest Disclosure Act
2001.
(1) Section 1 and this section commence on the day on which this Act
receives the Royal Assent.
(2) The remaining provisions commence on a day, or days, to be fixed by
Proclamation.
(3) If a provision referred to in subsection (2) has not commenced
before the end of the period of 6 months commencing on the day on which this Act
receives the Royal Assent, that provision, by force of this subsection,
commences on the first day after the end of that period.
(1) In this Act, unless the contrary intention appears:
act includes investigate.
agency means:
(a) a government agency; or
(b) a parliamentary agency.
conduct includes an act or omission.
detriment means:
(a) injury, damage or loss; or
(b) intimidation or harassment; or
(c) discrimination, disadvantage or adverse treatment in relation to
career, profession, employment, trade or business.
disclosable conduct means conduct which, by virtue of
subsection 4(1), is to be taken to be disclosable.
employee includes a person who is an employee within the
meaning of the Public Service Act 1999 or the Parliamentary Service
Act 1999.
Executive Agency means an Executive Agency within the meaning
of the Public Service Act 1999.
government agency means:
(a) a Department of State, excluding an Executive Agency or a Statutory
agency; or
(b) an Executive Agency; or
(c) a Statutory Agency.
offence means an offence under an Act.
parliamentary agency means a Department of the Parliament
that is established under the Parliamentary Service Act 1999.
proper authority has the meaning given by
section 9.
public interest disclosure means a disclosure of information
that the person making the disclosure believes on reasonable grounds tends to
show:
(a) that another person has engaged, is engaging, or proposes to engage,
in disclosable conduct; or
(b) public wastage; or
(c) that a person has engaged, is engaging, or proposes to engage, in an
unlawful reprisal; or
(d) that a public official has engaged, is engaging, or proposes to
engage, in conduct that amounts to a substantial and specific danger to the
health or safety of the public.
public official means:
(a) an employee of an agency, including an agency head;
(b) a person employed by or on behalf of the Commonwealth or in the
service of a Commonwealth authority, whether under a contract of service or a
contract for services, including a person who has ceased to perform those
services; or
(c) a person otherwise authorised to perform functions on behalf of the
Commonwealth or a Commonwealth authority.
public wastage means conduct by a public official that
amounts to negligent, incompetent or inefficient management within, or of, an
agency resulting, or likely to result, directly or indirectly, in a substantial
waste of public funds, other than conduct necessary to give effect to a
law of the Commonwealth.
Statutory Agency means a Statutory Agency within the meaning
of the Public Service Act 1999.
unlawful reprisal means conduct that causes, or threatens to
cause, detriment:
(a) to a person in the belief that any person has made, or may make, a
public interest disclosure; or
(b) to a public official because he or she has resisted attempts by
another public official to involve him or her in the commission of an
offence.
(1) For the purposes of this Act, conduct is to be taken to be disclosable
if:
(a) it is of a type referred to in subsection (2); and
(b) it could constitute:
(i) a criminal offence; or
(ii) a disciplinary offence; or
(iii) reasonable grounds for dismissing or dispensing with, or otherwise
terminating, the services of a public official who is engaged in it.
(2) Paragraph (1)(a) applies in relation to the following types of
conduct:
(a) conduct of a person (whether or not a public official) that adversely
affects, or could adversely affect, either directly or indirectly, the honest or
impartial performance of official functions by a public official or
agency;
(b) conduct of a public official which amounts to the performance of any
of his or her official functions dishonestly or with partiality;
(c) conduct of a public official, a former public official or an agency
that amounts to a breach of public trust;
(d) conduct of a public official, a former public official or an agency
that amounts to the misuse of information or material acquired in the course of
the performance of official functions (whether for the benefit of that person or
agency or otherwise);
(e) a conspiracy or attempt to engage in conduct referred to in
paragraphs (a) to (d) (inclusive).
(3) In this section:
disciplinary offence means conduct that constitutes grounds
for disciplinary action under the Public Service Act 1999 or the
Parliamentary Service Act 1999.
If information that could amount to a public interest disclosure is
disclosed in the course of the proceedings of a court or tribunal, the court or
tribunal may refer the information to a proper authority.
This Act does not limit the protection given by any other Act or law to a
person who makes a public interest disclosure or prejudice any other remedy
available to the person.
An agent of the Commonwealth who commits an offence against this
Act is liable for a penalty for the offence.
Nothing in this Act is to be taken to entitle a person to disclose
information which would otherwise be the subject of legal professional
privilege.
(1) Each of the following is a proper authority to receive a public
interest disclosure concerning a government agency’s conduct or the
conduct of a public official in relation to the agency, or a public interest
disclosure that a person has engaged, is engaging, or proposes to engage, in an
unlawful reprisal:
(a) the agency head;
(b) the Public Service Commissioner;
(c) the Public Service Merit Protection Commissioner.
(2) Each of the following is a proper authority to receive a public
interest disclosure concerning a parliamentary agency’s conduct or the
conduct of a public official in relation to the parliamentary agency, or a
public interest disclosure that a person has engaged, is engaging, or proposes
to engage, in an unlawful reprisal:
(a) the Secretary of the parliamentary agency;
(b) the Parliamentary Service Commissioner;
(c) the Parliamentary Service Merit Protection Commissioner.
(1) An agency must establish procedures:
(a) to facilitate the making of public interest disclosures; and
(b) to deal with public interest disclosures that it is the proper
authority to receive;
as soon as practicable, and in any event, within 12 months after:
(c) the commencement of this section; or
(d) the agency comes into existence;
whichever is later.
(2) An agency must ensure that procedures established under
subsection (1) are maintained.
(3) The procedures to be established under subsection (1) must
include procedures dealing with the following:
(a) making public interest disclosures;
(b) assisting and providing information to a person who makes a public
interest disclosure;
(c) protecting a person who makes a public interest disclosure from
unlawful reprisals, including unlawful reprisals taken by public officials in
relation to the agency;
(d) acting on public interest disclosures.
(4) The agency must, in respect of a document setting out the procedures
established and maintained in accordance with this section:
(a) make a copy of the document available to its public officials;
and
(b) make a copy of the document available to the public for inspection at
all reasonable times; and
(c) supply to a person a copy of the document on payment of an amount
directed by the agency to be paid in relation to supply of such a copy (being an
amount that the agency has determined, on reasonable grounds, to be equal to the
costs that will be incurred by the agency in providing such a copy).
(1) An agency that is required by an Act to prepare an annual report of
its activities during a year for tabling before the Parliament must include in
the report:
(a) a description of the procedures maintained by it under section 10
during the year; and
(b) statistics relating to the year in accordance with
subsection (2); and
(c) particulars relating to the year in accordance with
subsection (3).
(2) The statistics to be included in the annual report are:
(a) the number of public interest disclosures received by the agency;
and
(b) the number of each type of public interest disclosure received by the
agency; and
(c) the number of public interest disclosures received by the agency that
were referred to it by other agencies; and
(d) the number of public interest disclosures investigated by the agency;
and
(e) where the agency has referred public interest disclosures to other
agencies for investigation:
(i) the total number of disclosures referred; and
(ii) the identity of each other agency to which a disclosure was
referred; and
(iii) the number of disclosures referred to each other agency;
and
(iv) the number of each type of public interest disclosure referred to
each other agency; and
(f) the number of public interest disclosures on which the agency declined
to act under section 17; and
(g) the number of public interest disclosures that were substantiated by
the agency’s investigation of the disclosure.
(3) The annual report must include particulars of remedial action taken by
the agency in relation to:
(a) each public interest disclosure that was substantiated on
investigation by the agency; and
(b) any recommendations of the Public Service Commissioner or the
Parliamentary Service Commissioner, as the case may be, that relate to the
agency.
(1) Any person may make a public interest disclosure to a proper
authority.
(2) Without limiting the generality of subsection (1), a person may
make a public interest disclosure:
(a) about conduct in which a person engaged, or about matters arising,
before the commencement of this Act; and
(b) whether or not the person is able to identify any person that the
information disclosed concerns.
Nothing in this Act requires a proper authority to investigate a public
interest disclosure if the person making the disclosure does not identify
himself or herself.
(1) A proper authority may decline to act on a public interest disclosure
received by it if it considers:
(a) that the disclosure is frivolous or vexatious; or
(b) that the disclosure is misconceived or lacking in substance;
or
(c) that the disclosure is trivial; or
(d) that there is a more appropriate method of dealing with the disclosure
reasonably available; or
(e) that the disclosure has already been dealt with adequately.
(2) If an issue raised in a public interest disclosure has been determined
by a court or tribunal authorised to determine the issue at law after
consideration of the matters raised by the disclosure, the proper authority
shall decline to act on the disclosure to the extent that the disclosure
attempts to reopen the issue.
Subject to section 18, if a public interest disclosure received by a
proper authority is not related to:
(a) the conduct of the authority or of a public official in relation to
the authority; or
(b) a matter, or the conduct of any person, that it has a function or
power to investigate;
the proper authority must refer the disclosure to an agency that, because
it has a function or power to deal with the conduct or matter the disclosure
concerns, is a proper authority to receive the disclosure.
A proper authority shall investigate a public interest disclosure
received by it if the disclosure relates to:
(a) its own conduct or conduct of a public official in relation to the
authority; or
(b) a matter, or the conduct of any person, that the authority has a
function or power to investigate; or
(c) the conduct of a person, other than a public official, performing
services for or on behalf of the authority.
(1) Subject to subsection (2), if a public interest disclosure being
investigated by a proper authority relates to:
(a) the conduct of another agency or the conduct of a public official in
relation to another agency; or
(b) a matter, or the conduct of any person, that another agency has a
function or power to investigate;
the proper authority may refer the public interest disclosure to the other
agency.
(2) Nothing in this section affects the duty of a proper authority to act
under section 16.
A proper authority must not refer a public interest disclosure to another
agency under section 15 or subsection 17(1) if, in the authority’s
opinion:
(a) there is a serious risk that a person would engage in an unlawful
reprisal; or
(b) the proper investigation of the disclosure would be
prejudiced;
as a result of the reference to the other agency.
(1) Subject to subsection (2), if, after investigation, a proper
authority is of the opinion that a public interest disclosure has
revealed:
(a) that a person has engaged, is engaging, or proposes to engage, in
disclosable conduct; or
(b) public wastage; or
(c) that a person has engaged, is engaging, or proposes to engage, in an
unlawful reprisal; or
(d) that a public official has engaged, is engaging, or proposes to
engage, in conduct that amounts to a substantial and specific danger to the
health or safety of the public;
the authority must take such action as is necessary and
reasonable:
(e) to prevent the conduct or reprisal continuing or occurring in future;
and
(f) to discipline any person responsible for the conduct or
reprisal.
(2) Where the Public Service Commissioner or the Parliamentary Service
Commissioner reports that a public interest disclosure has revealed:
(a) that a person has engaged, is engaging, or proposes to engage, in
disclosable conduct; or
(b) public wastage; or
(c) that a person has engaged, is engaging, or proposes to engage, in an
unlawful reprisal; or
(d) that a public official has engaged, is engaging, or proposes to
engage, in conduct that amounts to a substantial and specific danger to the
health or safety of the public;
a proper authority to which the disclosure relates must, having regard to
any recommendations of the Public Service Commissioner or the Parliamentary
Service Commissioner, take such action as is necessary and reasonable:
(e) to prevent the conduct or reprisal continuing or occurring in future;
and
(f) to discipline any person responsible for the conduct or
reprisal.
(3) Subsections (1) and (2) do not apply if:
(a) an investigation, or a report by the Public Service Commissioner or
the Parliamentary Service Commissioner, reveals conduct referred to in
paragraphs (1)(d) or (2)(d); and
(b) the conduct is necessary to give effect to a law of the
Commonwealth.
(1) A person who makes a public interest disclosure, or a proper authority
which refers a disclosure to another proper authority, may request the proper
authority to which the disclosure was made or referred to provide a progress
report.
(2) Where a request is made under subsection (1), the proper
authority to which it is made shall provide a progress report to the person or
authority who requested it:
(a) as soon as practicable after receipt of the request; and
(b) if the proper authority takes further action with respect to the
disclosure after providing a progress report under paragraph (a):
(i) while the authority is taking action—at least once in every 90
day period commencing on the date of provision of the report under
paragraph (a); and
(ii) on completion of the action.
(3) A progress report provided under subsection (2) must contain the
following particulars with respect to the proper authority that provides the
report:
(a) where the authority has declined to act on the public interest
disclosure under section 14—that it has declined to act and the
ground on which it so declined;
(b) where the authority has referred the public interest disclosure to
another proper authority—that it has referred the disclosure to another
authority and the name of the authority to which the disclosure has been
referred;
(c) where the authority has accepted the public interest disclosure for
investigation—the current status of the investigation;
(d) where the authority has accepted the public interest disclosure for
investigation and the investigation is complete—its findings and any
action it has taken or proposes to take as a result of its findings.
(4) Nothing in this section prevents the proper authority from providing a
progress report in accordance with subsection (3) to a person who may make
a request under subsection (1).
If more than one proper authority is required by this Act to act on a
public interest disclosure, the proper authorities may enter into such
arrangements with each other as are necessary and reasonable:
(a) to avoid duplication of action; and
(b) to allow the resources of the authorities to be efficiently and
economically used to take action; and
(c) to achieve the most effective result.
(1) A person must not engage, or attempt or conspire to engage, in an
unlawful reprisal.
Penalty:
(a) if the offender is a natural person—100 penalty units or
imprisonment for 1 year, or both;
(b) if the offender is a body corporate—500 penalty units.
(2) It is a defence to a prosecution under subsection (1) if it is
established that the accused person:
(a) had just and reasonable grounds for engaging in the conduct, or
attempting or conspiring to engage in the conduct, that would, except for this
subsection, amount to an unlawful reprisal; and
(b) was engaging, or had engaged, in the conduct, or had conspired or
attempted to engage in the conduct, before forming the belief that a person had
made or may make a public interest disclosure.
(1) Where a proper authority receives a public interest disclosure that
relates to an unlawful reprisal, it shall provide the person who made the public
interest disclosure with information about the protection and remedies available
under this Act in relation to an unlawful reprisal.
(2) A proper authority must provide a person who has suffered an unlawful
reprisal with access to counselling services if requested by the person to do
so.
Where a public official in relation to an agency applies in writing to
the agency for relocation and the agency considers:
(a) that there is a danger that a person will engage in an unlawful
reprisal in relation to the public official if the public official continues to
hold his or her current position; and
(b) that the only practical means of removing or substantially removing
the danger is relocation of the public official to another position in an
agency;
the agency must, as far as practicable, make arrangements for relocation of
the public official to another position in an agency.
Section 24 does not authorise the relocation of a public official in
relation to an agency to another position in the agency without the consent of
the public official.
(1) A person who engages in an unlawful reprisal is liable in damages to
any person who suffers detriment as a result.
(2) The damages may be recovered in an action as for a tort in any court
of competent jurisdiction.
(3) Any remedy that may be granted by a court with respect to a tort,
including exemplary damages, may be granted by a court in proceedings under this
section.
An application to a court of competent jurisdiction for an injunction or
order under section 28 may be made:
(a) by a person claiming that he or she is suffering or may suffer
detriment from an unlawful reprisal; or
(b) by the Public Service Commissioner or the Parliamentary Service
Commissioner on behalf of a person referred to in paragraph (a).
(1) If, on receipt of an application under section 27, a court is
satisfied that a person has engaged, or is proposing to engage, in:
(a) an unlawful reprisal; or
(b) conduct that amounts to or would amount to:
(i) aiding, abetting, counselling or procuring a person to engage in an
unlawful reprisal; or
(ii) inducing or attempting to induce, whether by threats, promises or
otherwise, a person to engage in an unlawful reprisal; or
(iii) being in any way, directly or indirectly, knowingly concerned in, or
party to, an unlawful reprisal;
the court may:
(c) order the person to take specified action to remedy any detriment
caused by the unlawful reprisal; or
(d) grant an injunction in terms the court considers
appropriate.
(2) The court may, pending the final determination of an application under
section 27, make an interim order in the terms referred to in
paragraph (1)(c) or grant an interim injunction.
(3) The court may grant an injunction or an interim injunction under this
section whether or not the person has previously engaged in conduct of that
kind.
(4) The court may make an order or an interim order under this section
requiring a person to take specified action, whether or not the person has
previously refused or failed to take that action.
(1) If the Public Service Commissioner or the Parliamentary Service
Commissioner applies under section 27 for an injunction or order, no
undertaking as to damages or costs is required.
(2) The Public Service Commissioner or the Parliamentary Service
Commissioner may give an undertaking as to damages or costs on behalf of a
person applying under section 27 and, in that event, no further undertaking
is required.
(1) A public official must not, without reasonable excuse, make a record
of, or wilfully disclose to another person, confidential information gained
through the public official’s involvement in the administration of this
Act.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply to a public official who makes a
record of, or discloses, confidential information:
(a) to another person for the purposes of this Act or the regulations;
or
(b) to another person, if expressly authorised under another law of the
Commonwealth; or
(c) for the purposes of a proceeding in a court or tribunal.
(3) In this section:
confidential information means:
(a) information about the identity, occupation or whereabouts of a person
who has made a public interest disclosure or against whom a public interest
disclosure has been made; or
(b) information contained in a public interest disclosure; or
(c) information concerning an individual’s personal affairs;
or
(d) information that, if disclosed, may cause detriment to a
person.
A person must not knowingly or recklessly make a false or misleading
statement, orally or in writing, to a proper authority with the intention that
it be acted on as a public interest disclosure.
Penalty:
(a) if the offender is a natural person—100 penalty units or
imprisonment for 1 year, or both;
(b) if the offender is a body corporate—500 penalty units.
(1) A person is not subject to any liability for making a public interest
disclosure or providing any further information in relation to the disclosure to
a proper authority investigating it, and no action, claim or demand may be taken
or made of or against the person for making the disclosure or providing the
further information.
(2) Without limiting subsection (1), a person:
(a) does not commit an offence under a provision of an Act which imposes a
duty to maintain confidentiality with respect to a matter; and
(b) does not breach an obligation by way of oath or rule of law or
practice requiring him or her to maintain confidentiality with respect to a
matter;
by reason only that the person has made a public interest disclosure with
respect to that matter to a proper authority.
(3) Without limiting subsection (1), in proceedings for defamation
there is a defence of qualified privilege in respect of the making of a public
interest disclosure, or the provision of further information in relation to a
public interest disclosure, to a proper authority.
A person’s liability for his or her own conduct is not affected by
the person’s disclosure of that conduct in a public interest disclosure.
The Governor-General may make regulations, not inconsistent with this
Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.