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2010-11-12
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Public Interest Disclosure (Whistleblower Protection) Bill 2012
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Andrew Wilkie MP
Public Interest Disclosure (Whistleblower Protection) Bill 2012
OUTLINE
The Public Interest Disclosure (Whistleblower Protection) Bill 2012 aims to strengthen
public integrity by encouraging and facilitating the disclosure of corruption,
maladministration and other wrongdoing in the Commonwealth public sector. It does so by
providing protection for public officials to make such disclosures.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1: Short Title
1. This clause is a formal provision and specifies the short title of the Bill, once
enacted, as the Public Interest Disclosure (Whistleblower Protection) Act 2012.
Clause 2: Commencement
2. This clause provides for the commencement of sections of the Act. Section 1 and
Section 2 commence the day the Act receives the Royal Assent. Section 3, Section
4, Section 5 and Section 6 commence either on a day fixed by Proclamation, to
allow the commencement date to be managed administratively, or after a period of
6 months from the day the Act receives the Royal Assent in the event no day is
fixed by Proclamation in that period.
Clause 3: Objects
3. Clause 3 details the objects of the Act.
Clause 4: Definitions
4. This clause provides a number of definitions for terms used throughout the Act.
Clause 5: Crown to be bound
5. This clause is a formal provision ensuring that the Crown is bound in each of its
capacities. This clause does not limit the liability of Commonwealth authorities,
agents or employees be prosecuted for an offence committed under this Act or
other Commonwealth law.
Clause 6: Extension to external Territories
6. Clause 6 ensures that the Act is effective in every external Territory.
Clause 7: Extension to things outside Australia
7. Clause 7 ensures that the Act extends to acts, omissions, matters and things
outside Australia.
Part 2 - Scope of the Act
Clause 8: Meaning of public interest disclosure
8. This clause creates a comprehensive definition of public interest disclosure for the
purposes of this Act. This clause defines a public interest disclosure as disclosure
of information by a public official about disclosable conduct. This clause limits the
definition to disclosures of information by a public official to instances where the
public official honestly believes on reasonable grounds that the information
disclosed demonstrates disclosable conduct, or where the information disclosed
does tend to demonstrate disclosable conduct regardless of the belief of the public
official making the public interest disclosure.
9. This clause also allows public interest disclosures to be made by public officials
during an investigation of information previously disclosed by a public interest
disclosure.
10. A public interest disclosure may relate to one or more instances of disclosable
conduct and may concern conduct that occurred prior to the commencement of any
part of this Act.
11. Disclosure of information is not a public interest disclosure for the purposes of this
Act if the person making the disclosure knows the information is false or misleading,
if the information relates entirely to a policy disagreement regarding public
expenditure, or relates entirely to judicial or tribunal matters excluded by this clause.
Disclosures of information that are not public interest disclosures are not protected
by this Act.
12. This clause provides a definition of excluded judicial or tribunal matters which
recognises that unless they constitute a criminal offence or are entirely
administrative, matters that would otherwise constitute disclosable conduct but
which involve the exercise of judicial power under Chapter III of the Constitution, or
the exercise of like discretionary powers by Commonwealth tribunals, should not be
dealt with under a law in relation to such conduct applying to members of the
Legislature and the Executive.
Clause 9: Meaning of disclosable conduct
13. Clause 9 provides a comprehensive definition for the conduct about which
information disclosed is protected under this Act. Disclosable conduct is: corrupt
conduct carried out by any public official or agency, or by any person in relation to a
public official or agency; serious and substantial maladministration; misuse of public
money or public property; danger to public health; danger to the environment; and
detrimental action towards anyone as a result of a public interest disclosure.
14. Clause 9 also includes a comprehensive definition of conduct which constitutes
corrupt conduct for the purposes of this Act.
15. Clause 9 further defines maladministration; misuse; public health or safety; public
money; and public property.
Clause 10: Meaning of agency
16. Clause 10 provides comprehensive definitions of the range of public agencies
affected by provisions of this Act. Clause 10 includes definitions of agency;
intelligence agency; integrity agency; and investigative agency.
Clause 11: Meaning of public official
17. Clause 11 defines public official to include a variety of persons either currently or
previously employed by, contracted by, exercising a power of, or performing a
function of an agency. A public official is also defined to include Senators, members
of the House of Representatives and persons employed under the Members of
Parliament (Staff) Act 1984. Clause 11 also provides for other categories of public
officials to be prescribed by regulation.
Clause 12: Meaning of disclosure officer
18. Clause 12 provides a comprehensive definition of disclosure officer, detailing key
public officers to whom public interest disclosures may always be made. Clause 12
ensures that the head of an agency must declare at least 1 person to be a
disclosure officer for public interest disclosures relating to the agency.
Clause 13: Meaning of relates to an entity
19. Clause 13 provides a technical definition of the criteria by which a public interest
disclosure may relate to a particular agency.
Clause 14: Meaning of head of an agency
20. Clause 14 provides a comprehensive list of categories of agencies and the officials
considered to be their head for the purposes of this Act. Clause 14 also allows a
delegate of the head of an agency to be considered the head of an agency.
Clause 15: Meaning of sensitive defence, intelligence or law enforcement
information
21. This clause provides a comprehensive definition of sensitive defence, intelligence or
law enforcement information, outlining the attributes of information considered to be
sensitive defence, intelligence or law enforcement information for the purposes of
this Act.
Part 3 - Making a public interest disclosure
Clause 16: Who may make a public interest disclosure?
22. Clause 16 ensures that disclosure of information by a public official, in accordance
with this Act, is a public interest disclosure.
Clause 17: To whom may a public interest disclosure be made?
23. This clause details the officials to whom public interest disclosures may be made.
These include a disclosure officer, as well as various other categories of person
depending on the circumstances of the public interest disclosure.
Clause 18: How may a public interest disclosure be made?
24. Clause 18 allows for a public interest disclosure to be made orally or in writing,
anonymously, and regardless of whether the discloser asserts that the disclosure is
made under the protection of this Act.
25. Clause 18 also ensures that a person to whom a public interest disclosure is made
orally must make a written record of the disclosure.
Clause 19: Action upon receipt of a public interest disclosure
26. This clause details the actions which must be taken upon receipt of a public interest
disclosure. As soon as possible, a copy of the disclosure must be given to a
disclosure officer. This clause includes criteria to identify the appropriate disclosure
officer to which the disclosure is to be given.
27. This clause also provides that after receiving a public interest disclosure, a
disclosure officer must provide a copy of the disclosure to the head of each agency
to which the disclosure relates, the Ombudsman, and in the event of a disclosure
relating to an intelligence agency, the Inspector-General of Intelligence and Security
- subject to limitations outlined in section 20 of this Act.
Clause 20: Limitations on obligations to inform agencies or others about public
interest disclosures
28. Clause 20 delineates a series of limitations on the requirement to pass on
information relating to public interest disclosures in specific circumstances.
Whereas this Act contains explicit obligations on recipients of public interest
disclosures to inform other persons of the disclosure, this Clause provides
limitations and exceptions to those obligations where informing other persons would
be likely to adversely affect a person's safety, adversely affect an investigation
relating to the disclosure, or result in or increase a risk that detrimental action may
be taken against any person as a result of the disclosure.
29. This Clause also delineates the limitations that apply where a disclosure is received
which contains sensitive defence, intelligence or law enforcement information. This
provision does not remove the obligation of the recipient of a public interest
disclosure to inform others of information relating to that disclosure which does not
contain sensitive defence, intelligence or law enforcement information.
30. There are no limitations on the obligations to inform others about public interest
disclosures where the other person being informed about the disclosure is the
Ombudsman or the Inspector-General of Intelligence and Security.
Part 4 - Investigations
Clause 22: Investigation of public interest disclosures
31. Clause 22 provides that when a disclosure officer receives a public interest
disclosure, the head of the agency to which the disclosure relates must investigate
the disclosure. Clause 22 also ensures that where the disclosure relates to the head
of an agency, the head of the agency must refer the disclosure for investigation by
the Ombudsman, or if the disclosure relates to an intelligence agency, the
Inspector-General of Intelligence and Security. An investigation may be referred to
another agency, including an integrity agency or investigative agency, whom the
head of the agency to which the disclosure relates, and the Ombudsman or
Inspector-General of Intelligence and Security agree is appropriate to investigate
the disclosure.
32. In the event that a disclosure relates to disclosable conduct on the part of the
Ombudsman or Inspector-General of Intelligence and Security, the investigation
must be referred to another agency they reasonably believe is appropriate to
investigate the disclosure.
Clause 23: Referral to another agency
33. This Clause provides for circumstances where the investigation of a public interest
disclosure may be referred to another agency.
Clause 24: Meaning of investigating entity
34. Clause 24 defines investigating entity to mean the agency tasked with investigating
a public interest disclosure under sections 22 or 23 of this Act.
Clause 25: Referral of possible offences
35. This clause ensures that where an investigating entity is reasonably satisfied that
the disclosable conduct they are investigating involves or may involve an offence,
that entity must refer the disclosure, or part of the disclosure they are investigating
to the Australian Federal Police or another investigative agency appropriate to
investigate the disclosure.
Clause 26: Conduct of investigations
36. Clause 26 ensures that public interest disclosures are investigated in accordance
with the procedures outlined under Commonwealth law, appropriate for
investigations of the kind required by the nature of the disclosable information,
including Code of Conduct investigations. Clause 26 also lists a number of
procedures that investigations of disclosable conduct may include.
37. Clause 26 further provides that regardless of under which procedures a public
interest disclosure is investigated, the investigating entity must have due regard to
procedural fairness, and to the risk of detrimental action taken against any person
as a result of the disclosure.
Clause 27: Investigating entity may decide not to investigate etc.
38. Clause 27 provides the range of circumstances where an investigating entity may
decide not to investigate, or cease investigating a public interest disclosure.
Clause 28: Investigating entity must keep referring entity informed
39. Clause 28 ensures that where an investigation of a public interest disclosure has
been referred by a head of an agency to another agency under section 22 or 23 of
this Act, the investigation agency must keep the head of the agency from which the
investigation was referred informed about the progress and outcome of the
investigation.
40. If the investigating agency decides not to investigate the disclosure, or to end the
investigation of a disclosure, they must inform the head of the agency from which
the investigation was referred about the decision not to investigate or to end the
investigation.
Clause 29: Discloser must be kept informed
41. Clause 29 provides that the discloser of a public interest disclosure must be kept
promptly informed of any developments regarding the disclosure they have made,
unless the disclosure was made anonymously, or the discloser has asked in writing
not to be kept informed about the disclosure.
42. The discloser need not be provided with information that would be likely to identify a
person that has given information in relation to the disclosure, allow the identify of
the person to be worked out, adversely affect a persons safety, adversely affect an
investigation relating to the disclosure, or result in or increase the risk of detrimental
action being taken against any person.
Clause 30: Ombudsman and IGIS must be kept informed
43. An investigating entity must keep the Ombudsman or, where a disclosure relates to
an intelligence agency, the Inspector-General of Intelligence and Security, informed
about the progress and outcome of the investigation into the disclosure.
44. If the investigating agency decides not to investigate the disclosure, or to end the
investigation of a disclosure, they must inform the Ombudsman or Inspector-
General of Intelligence and Security about the decision not to investigate or to end
the investigation, the grounds listed in Section 27 of this Act under which the
decision not to investigate or to end the investigation was made, and the reason for
the decision not to investigate or to end the investigation.
Part 5 - Public interest disclosure to third parties
Clause 31: When disclosure may be made to journalists etc.
45. This clause defines the circumstances where public interest disclosures may be
made to journalists and other persons not listed under section 17 of this Act. The
circumstances are where: a public official has made a public interest disclosure to a
person mentioned in section 17 of this Act, and that person has refused or failed to
receive the disclosure; an investigating entity has refused or failed to investigate the
disclosure, other than in accordance with section 27 of this Act; the discloser has
not been informed within 3 months whether the disclosure will be investigated; the
discloser has not been informed about the progress of an investigation relating to
the disclosure for a period of more than 3 months; or the disclosure has been
investigated, but no action is to be taken, and there remains clear evidence
demonstrating that 1 or more instances of disclosable conduct mentioned in the
disclosure has occurred or was likely to have occurred.
46. In addition, the circumstances where public interest disclosures may be made
directly to journalists and other persons not listed under section 17 of this Act, are
where a public official honestly believes on reasonable grounds that they have
information that tends to show disclosable conduct, there exists a significant risk of
detrimental action to the public official or someone else if a disclosure is made to a
person mentioned in section 17 of this Act, and it would be unreasonable in all the
circumstances for the disclosure to be made to a person under section 17 of this
Act.
Clause 32: Disclosure may be made to journalists etc.
47. Clause 32 enables a public official satisfying the criteria outlined section 31 of this
Act to make a public interest disclosure to a person, including a journalist, whom
they reasonably believe can assist them to ensure appropriate action is taken in
relation to the disclosable conduct.
48. Clause 32 also provides definitions of journalist and news medium.
Clause 33: Limitations on disclosures to journalists etc.
49. Clause 33 ensures that a public official making a disclosure to a journalist or other
third party must only disclose sufficient information to demonstrate that the conduct
to which the disclosure relates is disclosable conduct. Where a public official has
also made a public interest disclosure to a person listed under section 17 of this
Act, they may inform the journalist or other person not listed under section 17 of this
Act of the progress and outcome of any investigation.
50. Before making a disclosure to a journalist or other person not listed under section
17 of this Act, the disclosure must first have regard to whether the information to be
disclosed includes sensitive defence, intelligence or law enforcement information. If
the information to be disclosed does include sensitive defence, intelligence or law
enforcement information, the person making the disclosure must reasonably satisfy
themselves that the public interest in disclosure of the conduct to which the
disclosure relates outweighs the public interest in protection of the sensitive
defence, intelligence or law enforcement information.
51. Clause 33 also states that nothing in part 5 of this Act authorises a public interest
disclosure to be made to a foreign public official.
Part 6 - Obligations of agencies
Clause 34: Key responsibilities
52. Clause 34 outlines the responsibilities of heads of agencies in relation to public
interest disclosures.
Clause 35: Public interest disclosure procedures
53. Clause 35 ensures that an agency's procedures relating to their obligations
regarding public interest disclosures must be consistent with the standards
prepared by the Ombudsman under section 54 of this Act. Clause 35 also lists a
series of requirements for an agency's procedures regarding public interest
disclosures.
54. Clause 35 requires the head of an agency to publish the agency's public interest
disclosure procedures, as well as provide copies to the Ombudsman, or if the
agency is an intelligence agency, to the Inspector-General of Intelligence and
Security. If the Ombudsman or, in the case of intelligence agencies, the Inspector-
General of Intelligence and Security provides the head of an agency with any
recommendation or direction to amend the agency's public interest disclosure
procedures, the head of the agency must comply with those recommendations or
directions.
Clause 36: Confidentiality guidelines
55. This clause ensures that all public officials involved in the disclosure, referral and
investigation of a public interest disclosure must observe appropriate confidentiality
regarding the disclosure, particularly with respect to the identity of the disclosure,
the identity of the people against whom allegations of disclosable conduct have
been made, and the fact that any disclosure has been made or is being
investigated.
Clause 37: Notification and reporting
56. Clause 37 outlines the notification and reporting requirements of agencies in
relation to public interest disclosures.
Part 7 - Legal protection for disclosers
Clause 38: Immunity from liability
57. This clause outlines the circumstances in which a person making a public interest
disclosure is immune from civil, criminal or administrative liability, including
disciplinary action or dismissal, for making the disclosure. This protection from
dismissal extends to contractors. Clause 38 explicitly states that no sanction may
be imposed upon the discloser as a result of the disclosure.
Clause 39: Protection from defamation action
58. Clause 39 provides a person making a public interest disclosure with a defence of
absolute privilege against any proceeding for defamation.
Clause 40: What is detrimental action?
59. Clause 40 defines types of actions which, if they cause detriment to any person and
are undertaken partly or wholly as a result of a public official making a public
interest disclosure, constitute detrimental action for the purposes of this Act.
Clause 41: Detrimental action is adverse action in the course of employment
60. Clause 41 makes it clear that detrimental action undertaken in the course of a
person's employment is adverse action for the purposes of the Fair Work Act 2009,
is to be treated as such, and attracts the remedies available under the Fair Work
Act 2009 for compensation, reinstatement, civil penalties or other remedial orders to
be granted or ordered by Fair Work Australia or the Federal Court.
Clause 42: Injunction to prevent detrimental action etc.
61. Clause 42 provides additional authority to the Federal Court or the Federal
Magistrates Court, where satisfied that a person has taken, is taking or is likely to
take detrimental action, to order that person to remedy the detrimental action or
grant an injunction to prevent detrimental action from being taken. In doing so, the
Federal Court or the Federal Magistrates Court may make any orders that it thinks
fit against any person who aided, abetted, conspired or was otherwise knowingly
concerned or involved in the detrimental action.
62. Clause 42 also allows the Federal Court or Federal Magistrates Court to grant
interim injunctions to restrain a person from taking detrimental action.
63. An application for the Federal Court or Federal Magistrates Court to make orders or
injunctions under this clause may be made by the Ombudsman, an investigating
entity, the discloser or a person against whom detrimental action has been or is
likely to be taken.
Clause 43: Reinstatement
64. Clause 43 provides additional authority to the Federal Court or Federal Magistrates
Court, where satisfied that a person making a public interest disclosure is or was
employed in a particular position and has been terminated or may be terminated as
a result of the disclosure, to order that the discloser be reinstated in their previous
position or in a position with comparable duties and remuneration.
Clause 44: Damages for detrimental action
65. Clause 44 provides a person who suffers detrimental action as a result of a public
interest disclosure with an alternative cause of action for damages, in the Federal
Court or Federal Magistrates Court, in addition to those that may be available under
the Fair Work Act 2009. This clause also delineates applicable costs principles in
relation to such actions. However, a person may not pursue a cause of action
under both the Fair Work Act and this provision, unless the prior action has been
discontinued or failed for want of jurisdiction.
Clause 45: Vicarious liability
66. Clause 45 provides for where employees of agencies take detrimental action, both
the agency and the employee are liable for the action and proceedings may be
taken against either or both.
67. This clause also provides a defence for an agency where it proves, on the balance
of probabilities, that it took every reasonable step to minimise the risk of, or prevent
the employee from taking, the detrimental action in question.
Clause 46: Offence - victimisation
68. Clause 46 creates an offence for instances where a person victimises any person
because of a public interest disclosure.
69. The offence is defined as occurring whenever a person intentionally takes, or
threatens to take, detrimental action against any person because a person has
made, or may make a public interest disclosure, or because the offender believes or
suspects that a person has made, or may make a public interest disclosure.
70. Clause 46 includes provisions to assist interpretation of what actions may constitute
an offence of victimisation, and to ensure that remedies for detrimental action may
be sought under other sections of this Act irrespective of whether an offence is, or
could be, found to have also occurred.
Clause 47: Liability for own conduct
71. Clause 47 ensures that a person may not use this Act to escape liability for their
own conduct by making a public interest disclosure about their own conduct.
Clause 48: Loss of protection
72. Clause 48 provides for protection under this Act in relation to public interest
disclosures to be removed where a court is satisfied that the discloser has given
information to a person investigating that is false or misleading, the disclosure is
vexatious, or the discloser has failed to comply in a substantial way with their
obligations under this Act, unless those circumstances do not materially prejudice
the investigation of the disclosure or are of a minor nature.
Part 8 - Oversight of public interest disclosures
Clause 49: Functions of Ombudsman and IGIS
73. Clause 49 details the functions of the Ombudsman in relation to oversight of public
interest disclosures. Where the disclosure relates to an intelligence agency, the
Inspector-General of Intelligence and Security has the same functions.
74. The Ombudsman and the Inspector-General of Intelligence and Security may enter
into shared arrangements or mutual assistance while performing the functions
conferred on either of them by this Act.
Clause 50: Ombudsman and IGIS may review decisions
75. Clause 50 includes a list of actions relating to public interest disclosures which the
Ombudsman may, at any time, review. The Ombudsman may request information
relevant to the case, including protected information, and agencies and public
officials must comply with such requests.
76. After reviewing a decision, the Ombudsman may amend the decision, set aside the
decision and make a new decision or take no action. The Ombudsman may also
recommend to an agency or public official that it take, or not take, particular action
in relation to the disclosable conduct.
77. The Ombudsman may exercise any power under the Ombudsman Act 1976 for the
purposes of reviewing a decision, reviewing an investigation, making a
recommendation or making a report in relation to the management of a public
interest disclosure.
78. The Inspector-General of Intelligence and Security has the same review powers
mentioned, and may exercise any powers under the Inspector-General of
Intelligence and Security Act 1986 where disclosures relate to intelligence agencies.
Clause 51: Ombudsman and IGIS may conduct investigations
79. Clause 51 allows the Ombudsman and, where disclosures relate to intelligence
agencies, the Inspector-General of Intelligence and Security, to commence
investigations of public interest disclosures, including any aspect of the
management of public interest disclosures. Both agencies may provide direction to
an agency or investigating entity regarding the investigation of a public interest
disclosure.
80. A person may complain to the Ombudsman or, where disclosures relate to
intelligence agencies, the Inspector-General of Intelligence and Security, about any
action taken by an agency or public official in exercising a function under this Act.
Clause 52: Report by Ombudsman or IGIS
81. The Ombudsman or Inspector-General of Intelligence and Security may report
about an agency's public interest disclosure procedures, or how a specific public
interest disclosure is managed by an agency or public official.
82. Such a report may include information critical of a person or agency only if that
person or agency has been given an opportunity to be heard. Such a report must
not include information that is likely to adversely affect a person's safety, adversely
affect an investigation relating to a disclosure, or contain information that is
sensitive defence, intelligence or law enforcement information.
83. Such reports must be provided to the head of any agencies to which the report
relates, and the Minister or Ministers responsible for the agency or agencies. The
Ombudsman or Inspector-General of Intelligence and Security may also publish a
report or other information regarding a disclosure where he or she considers the
publication of the report or other information to be prudent and in the public interest.
Clause 53: Ombudsman or IGIS must tell discloser about decisions
84. If the Ombudsman or Inspector-General of Intelligence and Security makes a
decision or recommendation after a review under section 50 of this Act or makes a
report regarding a public interest disclosure, the discloser must be informed about
the decision or recommendation, and the reasons for the decision or
recommendation, or provide the discloser with the report, as the case may be. This
requirement does not apply if the public interest disclosure was made anonymously,
or if the discloser has asked in writing not to be kept informed about the public
interest disclosure.
85. A discloser does not need to be informed about information in relation to a
disclosure if that information would be likely to identify a person that has given
information in relation to the disclosure, allow the identify of the person to be
worked out, adversely affect a person's safety, adversely affect an investigation
relating to the disclosure, or result in or increase a risk that detrimental action be
taken against any person as a result of the disclosure.
Clause 54: Ombudsman's standards
86. Clause 54 lists a series of subjects relating to public interest disclosures about
which the Ombudsman is required to publish standards. The Ombudsman must
consult with the Inspector-General of Intelligence and Security and each integrity
agency prior to publishing these standards.
Clause 55: Annual report
87. Clause 55 requires the Ombudsman to include an annual report on the operations
of this Act in each annual report for a financial year. This clause also lists a number
of clauses which this report must include. The head of each agency, including the
Inspector-General of Intelligence and Security must provide the Ombudsman with
sufficient information to compile this annual report.
Part 9 - Miscellaneous
Clause 56: Protection of witnesses etc.
88. Clause 56 creates an offence for the victimisation, harassment, intimidation or
causation of detriment to a person who has given information, produced a
document, answered a question or otherwise provided assistance when requested
to do so by an investigating entity, disclosure officer or other official. A person who
provides such assistance is not civilly or criminally liable for the assistance they
have provided.
Clause 57: Protection of officials from liability
89. Clause 57 protects officials from liability for anything done or omitted to be done
honestly and without recklessness in the exercise of a function of this Act, or in the
reasonable belief that the act or omission in question was in the exercise of a
function under this Act.
Clause 58: Offences - use or divulge protected information
90. Clause 58 creates offences for the use of or divulgence of information, or for any
action that divulges information about another person, by certain public officials
charged with responsibilities under this Act, where the person using or divulging the
information, or acting so that information is divulged knows or is reckless about
whether the information is protected information. This clause includes a definition
of protected information.
91. The offences listed in Clause 58 do not apply where the information is used or
divulged under this Act or another Commonwealth law, or in the relation of the
exercise of a function under this Act or another Commonwealth law, or in a court
proceeding.
92. Offences listed in Clause 58 place the evidentiary burden on the defendant. This is
necessary as under the standard evidentiary burden a court would have to be
satisfied that no act or legal instrument exists, that authorises or may authorise the
use or divulgence of the protected information in question. Placing the evidentiary
burden on the defendant simplifies the operation of the offences listed in this clause
by placing the onus on the defendant to indicate under which act or legal instrument
the protected information was used or divulged. This provision is similar to sections
that appear in other investigation enabling laws.
Clause 59: Concurrent operation of State and Territory laws
93. This clause ensures that this Act is not intended to exclude or limit the operation of
a law of a State or Territory that is capable of operating concurrently.
Clause 60: Legal professional privilege
94. This clause ensures that this Act does not affect the law relating to legal
professional privilege.
Clause 61: Parliamentary privilege
95. This clause ensures that this Act does not affect the powers, privileges and
immunities of the Senate, the House of Representatives, the members of each
House of the Parliament, and the committees of each House of Parliament, as listed
in section 49 of the Constitution.
96. This Act does not affect the powers, privileges and immunities granted by the
Parliamentary Privileges Act 1987.
Clause 62: Regulations
97. Clause 62 allows the Governor-General to make regulations prescribing matters
required or permitted by this Act to be prescribed or necessary or convenient to be
prescribed to carry out the functions or to give affect to all or part of this Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Public Interest Disclosure (Whistleblower Protection) Bill
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the bill
This bill advances human rights by establishing procedures for the disclosure of
corruption, maladministration and other wrongdoing in the Commonwealth public sector. It
protects public officials making such disclosures.
Human rights implications
· This Bill promotes the right to privacy and reputation by protecting the privacy of
individuals involved in public interest disclosures. While it does contain provisions
requiring disclosure of information, it contains robust provisions to protect personal
information about individuals involved and ensures that appropriate confidentiality is
observed at all times.
· This Bill provides appropriate and adapted recognition of the freedom of political
communication, by providing a clear and robust framework under which public
officials may communicate important information regarding the operations of
government to other relevant public officials and agencies, and where necessary to
the media or general public, notwithstanding any other laws that may otherwise
purport to restrict that freedom.
· This Bill furthers the right to fair trail and fair hearing rights by providing offences for
victimisation and detrimental action against public officials making public interest
disclosures, and ensures that all persons involved in public interest disclosures are
treated with procedural fairness.
· This Bill furthers the prohibition on torture, and cruel, inhuman or degrading
treatment or punishment by providing a robust framework for such actions to be
reported and investigated.
· This Bill does not create any offences that apply retrospectively. However, it does
provide protection to individuals making public interest disclosures about
wrongdoing which may have occurred prior to this Act's commencement. This is
compatible with the prohibition on retrospective criminal law.
· This Bill furthers the right to work and rights in work by providing a robust
framework for Commonwealth public sector workers to make disclosures about
wrongdoing with the confidence that they will not be victimised or subject to
reprisals as a result of their disclosure.
· This Bill engages the right to minimal guarantees in criminal proceedings by placing
the evidentiary burden in relation to an offence on the defendant in clause 58. This
is necessary to simply the operation of the offences under this clause. Were the
evidentiary burden not placed on the defendant, the prosecution would be forced to
prove a negative: that no act or legal instrument exists that would cause the
offences or offences not to apply. By placing the evidentiary burden on the
defendant, the defendant is able to indicate which act or legal instrument they
believe causes the offence or offences not to apply. This method appears in other
investigation enabling laws, and is a reasonable and proportionate response to the
operational problem caused by the nature of the offences described in clause 58.
Conclusion
This bill is compatible with human rights because it advances the protection of a number of
human rights, and any non-positive engagement is necessary, reasonable and
proportionate.
Andrew Wilkie MP