Commonwealth Numbered Acts Commonwealth Numbered Acts
Public Interest Disclosure Act 2013
1 Paragraph 6(b)
After "public officials", insert "and former public officials".
2 Paragraphs 6(c) and (d)
After "public officials", insert ", and former public officials,".
3 Section 7
Repeal the section, substitute:
7 Simplified outline of this Act
General
This Act provides a framework for current and former public officials to disclose allegations of misconduct ("disclosable conduct") in the Commonwealth public sector.
Agencies are required to investigate disclosures of potential disclosable conduct.
Protection from reprisals is provided for current and former public officials making disclosures, and persons providing assistance in disclosure investigations and reviews.
What is a public interest disclosure?
A public interest disclosure is a disclosure of information relating to disclosable conduct alleged to have occurred within a Commonwealth agency (for relevant agencies, see sections 71 and 72).
There are 4 kinds of public interest disclosure (see section 26), which are as follows:
(a) an internal disclosure (disclosed within an agency);
(b) an external disclosure (disclosed outside Government);
(c) an emergency disclosure;
(d) a legal practitioner disclosure.
What is disclosable conduct?
Disclosable conduct, broadly speaking, includes conduct that:
(a) is illegal or corrupt; or
(b) results in a wastage of money or property; or
(c) results in unreasonable danger or risk to health and safety; or
(d) results in danger, or an increased risk of danger, to the environment.
See section 29 for more detail relating to disclosable conduct.
Personal work-related conduct (for example, bullying or harassment) is not generally disclosable conduct. However, personal work-related conduct may be treated as disclosable conduct in some circumstances. See subsection 29(2A) and section 29A for more detail relating to personal work-related conduct.
Investigation of internal disclosures
Generally, this Act provides for a disclosure of disclosable conduct to be first investigated internally, as an internal disclosure.
Internal disclosures may be made by public officials (and former public officials) to supervisors and authorised officers of Commonwealth agencies, including, in appropriate cases, an authorised officer of the Ombudsman and the IGIS.
Part 3 deals with the allocation of the handling of internal disclosures to appropriate agencies, and their investigation by the principal officers of those agencies. Investigative agencies may instead use their own investigative powers to investigate disclosures.
If an authorised officer or principal officer of an agency considers that the conduct disclosed would be more appropriately investigated under another law or power, the officer must take reasonable steps to refer the conduct, or to facilitate its referral, for investigation under the other law or power.
Notice of decisions related to the allocation and investigation of disclosures must be given to the relevant discloser and:
(a) the Ombudsman; or
(b) the IGIS, for disclosures related to intelligence agencies, or ACIC or the Australian Federal Police in relation to that agency's intelligence functions.
The Ombudsman and the IGIS may also make recommendations to principal officers relating to the allocation and investigation of disclosures.
Administrative support for the investigation and review of internal disclosures
Part 4 provides for the following:
(a) obligations of principal officers, authorised officers and supervisors of public officials to facilitate and support the making of internal disclosures;
(b) functions of the Ombudsman and the IGIS to facilitate and support the operation of this Act;
(c) the sharing of information between relevant agencies, the Ombudsman and the IGIS to facilitate the investigation and review of internal disclosures;
(d) the public officials, agencies and principal officers covered by this Act;
(e) how this Act deals with disclosures in relation to agencies that are affected by machinery of government changes.
Protection of disclosers and witnesses
The protection provisions in Division 1 of Part 2 relate to all forms of public interest disclosure (whether internal, external, emergency or legal practitioner). They deal with the protection of disclosers, and witnesses (that is, persons providing assistance in disclosure investigations and reviews), from reprisals by providing for the following:
(a) immunity from liability that is related to disclosures and such assistance;
(b) criminal offences for such reprisals, and for disclosing the identity of disclosers;
(c) civil remedies for reprisals related to disclosures.
Other matters
Part 5 deals with additional matters related to the administration of this Act, including regular reports to Parliament by the Ombudsman.
4 Section 8 (definition of Commonwealth contract )
Omit "subsection 30(3)", substitute "subsections 30(3) and (4)".
5 Section 8 (paragraphs (h) and (i) of the definition of designated publication restriction )
Repeal the paragraphs, substitute:
(h) an order under subsection 35(3), 35(4) or 35AA(2) of the Administrative Appeals Tribunal Act 1975 ;
6 Section 8
Insert:
"emergency disclosure " means a public interest disclosure covered by item 3 of the table in subsection 26(1).
"external disclosure " means a public interest disclosure covered by item 2 of the table in subsection 26(1).
"legal practitioner disclosure " means a public interest disclosure covered by item 4 of the table in subsection 26(1).
7 Section 22
After "public official who is", insert ", or has been,".
8 Section 25 (paragraph beginning "Broadly speaking")
After "public official,", insert "or a former public official,".
9 Paragraph 26(1)(c)
Omit "met:", substitute "met.".
10 Subsection 26(1) (cell at table item 1, column 3)
Repeal the cell, substitute:
| (a) The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct. (b) The disclosure is not made in the course of performing the discloser's ordinary functions as a public official. |
11 Paragraph 29(1)(c)
Omit "contract:", substitute "contract.".
12 Subparagraph 30(2)(b)(i)
Omit "; or", substitute "; and".
13 Subparagraph 30(2)(b)(ii)
Omit "who".
14 Subsection 30(3)
Omit "a prescribed authority" (wherever occurring), substitute "an agency".
15 At the end of section 30
Add:
(4) However, a Commonwealth contract does not include a grant covered by an instrument made under section 105C of the Public Governance, Performance and Accountability Act 2013 (instruments relating to grants).
16 Section 34
Omit "conduct:", substitute "conduct.".
17 Paragraph 67(1)(a)
Omit "public interest disclosure covered by item 4 of the table in subsection 26(1) (a legal practitioner disclosure )", substitute "legal practitioner disclosure".
18 Section 77
Repeal the section, substitute:
(1) The principal officer of an agency may, by writing, delegate any or all of the principal officer's functions or powers under this Act to a public official who belongs to the agency.
Example: The Ombudsman and the IGIS are the principal officers of their respective agencies. Under this subsection, the Ombudsman, or the IGIS, may delegate any of their respective functions or powers to a public official who belongs to the relevant agency (see section 69).
(2) A person exercising functions or powers under a delegation under this section must comply with any directions of the principal officer who delegated the function or power.
19 After paragraph 78(1)(c)
Insert:
or (ca) a person assisting:
(i) a principal officer of an agency; or
(ii) a delegate of the principal officer;
20 At the end of subsection 78(1)
Add:
; or (f) in the case of a person assisting a principal officer or delegate, as mentioned in paragraph (ca)--in assisting the principal officer or delegate in doing anything mentioned in paragraph (d) or (e).
21 Section 82A
Repeal the section, substitute:
82A Review of operation of Act
(1) The Minister must cause a review to be undertaken of the operation of this Act.
(2) The review must be conducted as soon as practicable after the end of 5 years after this section commences.
(3) The Minister must cause a written report about the review to be prepared.
(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.