PUBLIC INTEREST DISCLOSURE BILL 2008 Explanatory Statement

2008

LEGISLATIVE ASSEMBLY OF THE

NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

PUBLIC INTEREST DISCLOSURE BILL 2008

SERIAL NO. 14

EXPLANATORY STATEMENT

Where there has been substantial mismanagement of public resources, substantial maladministration or other serious improper conduct within a public body, it is essential for that information to be reported to an appropriate authority. However, without a statutory scheme to deal with the processes for receiving, processing and taking action on these disclosures, an individual making a report bears a heavy onus and may face recriminations or reprisals.

This Bill provides a scheme to encourage and facilitate disclosure of improper conduct by public officers and public bodies, to investigate such matters, and to protect persons who make public interest disclosures and persons who may suffer harm as a result of reprisal action for such disclosures. It locates the responsibility for the operation of the scheme with an independent statutory office holder, the Commissioner for Public Interest Disclosures.

The scheme covers all aspects of improper conduct and applies to all Government departments, statutory bodies established for public purposes and other public bodies, prescribed bodies supported directly or indirectly by Government funds, Government owned corporations, the Police, public hospitals, universities and local government councils. It provides protections by way of immunity from civil and criminal liability and disciplinary action for making a public interest disclosure (unless the person was involved in the matter being disclosed), immunity from liability for breaking confidentiality provisions, protection from actions in defamation, and the right to sue for damages or to stop reprisal action. Generally revealing information obtained as a result of a disclosure or investigation (including the identity of a person who makes a disclosure) is an offence under the Bill. A public officer also has a right to request relocation because of reprisal action taken for making a public interest disclosure, and to seek review of a decision to relocate on the grounds of reprisal action, or refusal to relocate.

Clause 1. Short title
This is a formal clause which provides for the citation of the Bill.

The Bill when passed may be cited as the the Public Interest Disclosure Act 2008.

Clause 2. Commencement
This clause provides that the Act will commence on the date fixed by the Administrator by notice in the NT Government Gazette.

Clause 3. Objects of Act
Clause 3 sets out the objects of the legislation which are to provide for the disclosure and investigation of improper conduct of public officers and public bodies, to protect persons making public interest disclosures and persons who may suffer harm in reprisal for disclosures, and to ensure that any impropriety revealed by the investigation is properly dealt with.

Clause 4. Definitions
Clause 4 is the definitions section. An important definition is that of “public interest disclosure” which is a disclosure, made in accordance with the Act, of “public interest information”, being information that, if true, would tend to show a public officer or public body has engaged, is engaging or intends to engage in improper conduct.

“Acting in an official capacity” is a term used throughout the legislation and means in relation to the Commissioner for Public Interest Disclosures, a member of the Commissioner's staff or someone else, a person exercising powers or performing functions under this Act or exercising powers or performing functions otherwise related to the administration of this Act (eg exercising powers under another Act related to the administration of this Act eg the Public Sector Employment and Management Act).

Other important terms are defined by reference to particular provisions eg “improper conduct” which is defined in clause 5, “public bodies in clause 6 and “public officer” in clause 7.

Clause 5. Improper conduct
“Improper conduct” is defined to comprehensively cover serious wrongdoing within the public sector. Less serious wrongdoing should be dealt with under existing criminal, financial, employment / disciplinary / agency or Ombudsman legislation.

Improper conduct is defined as conduct in the performance of official functions on the part of a public body or public officer that would, if proved, either -

(a) constitute a criminal offence or reasonable grounds for termination of a public officer and that involves bribes, improper inducements or other forms of dishonesty, inappropriate bias, breach of public trust, or misuse of confidential information; or

(b) involve a substantial misuse or mismanagement of public resources, a substantial risk to public health or safety, a substantial risk to the environment or substantial maladministration that specifically substantially and adversely affects someones interests. Substantial maladministration is defined in (3) to mean conduct that includes action or inaction of a serious nature that is contrary to law, unreasonable, unjust, oppressive, or improperly discriminatory or based wholly or partly on improper motives.

Furthermore, improper conduct includes reprisal action or conspiracy or attempts to engage in improper conduct that is a criminal offence.

Clause 6. Public bodies
This clause sets out who are public bodies; including:

· a public service agency. “Agency” is defined in section 18A of the Interpretation Act as a department or unit of a department, or other authority or body, nominated as an Agency in an Administrative Arrangements Order. This includes the Police Civil Employment Unit (for which the Police Commissioner is the responsible chief executive);
· a council (defined in section 4 as a council constituted under the Local Government Act);
· the Police Force of the Northern Territory (established by the Police Administration Act);
· a body established under an Act for a public purpose (for example the Territory Insurance Office);
· a body whose members or the majority of members, are appointed by the Administrator or a Minister;
· a government-owned corporation (defined in section 4 as a company of which all or a majority of shares are held by the Northern Territory or a public body). An example is the Power and Water Corporation;
· a prescribed body which is supported by Government funds or over which the Northern Territory is in a position to exercise control;
· a university (defined in section 6(3) to mean the Charles Darwin University or the Batchelor Institute of Indigenous
Tertiary Education);

· a public hospital or nursing home (defined in clause 6(3) by reference to declarations under section 6(2) of the Medical Services Act).
However, Courts and bodies (such as boards, tribunals or commissions that have judicial or quasi-judicial functions) in the performance of their deliberative functions, are not public bodies under the Act.

“Public officer” covers a wide range of personnel, including members of the Legislative Assembly (MLAs), members and employees of

local government councils, public sector employees, statutory officers and police officers.

However, judicial officers (a Judge or the Master of the Supreme Court or a magistrate), a coroner (defined in the Coroners Act to include a deputy coroner), the Director of Public Prosecutions, the Auditor-General, the Ombudsman, the Electoral Commissioner, the Commissioner for Public Interest Disclosures, certain officers of the Legislative Assembly (being the Clerk, the Deputy Clerk or any other person declared by the Speaker by notice in the Gazette to be an officer of the Assembly under the Legislative Assembly (Powers and Privileges) Act), personal staff of the judiciary and members of bodies (with judicial or quasi-judicial functions when performing deliberative functions) are exempt from the definition by reason of their independence, separation from Parliament, the requirement to report directly to Parliament or separate review mechanisms.

Clause 8. Responsible authority for public body or public officer
The Bill provides for information to be given to and received from the responsible authority at various stages of the investigation eg given notice when the Commissioner begins an investigation (clause 24), given the opportunity to comment on a draft adverse report (clause 30), given the report on the findings of the investigation (clause 31) and required to report on action to implement recommendations (clause 32).

The responsible authority for a public body or public officer is set out in detail in clause 8 as follows:

(i) for the chief executive officer of a government-owned corporation – the Chair of the board of directors of the corporation;

(j) for the chief executive officer of another public body – the responsible Minister;

(k) for another public officer – the responsible chief executive officer of the public body for the public officer;

Clause 9. Application of Criminal Code
This clause provides that Part IIAA of the Criminal Code applies to offences against this Act.

Thus the offences in the Act will be governed by the general principles of criminal responsibility (including burdens of proof and general defences) set out in Part IIAA of the Criminal Code. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. For example, the extended meaning given to the concept of recklessness in section 43AK(4) of the Code.

The fault elements specified in the Act are the only fault elements of the offence and operate to the exclusion of fault elements that might otherwise be implied under provisions of the Criminal Code (such as section 43AM).

For offences classified as an offence of strict liability (such as clause 26(5), failure to comply with notice of the Commissioner to give information, and clause 27(8), failure to comply with notice of the Commissioner to attend for examination), section 43AN(1) of the Criminal Code applies to the offence, ie there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 43AX of the Criminal Code is available.

Clause 10. Right to make public interest disclosure
This clause provides that only an individual (defined in section 17 of the Interpretation Act as a natural person; ie not a body corporate or body politic) may make a disclosure of public interest information, being information that, if true, would tend to show improper conduct on the part of a public officer or public body.

This clause ensures that information which is substantially a policy dispute, an employment related grievance or other personal grievance is not a public interest disclosure and does not trigger either legal protections or investigation.

A disagreement about a government policy, including disagreement about amounts, purposes and priorities of expenditure, cannot be complained about. A public interest disclosure can only for example be about a waste of public funds caused by substantial mismanagement of government programs, not disagreement over the program objectives. A disclosure about the spending of money on recruiting nurses in accordance with a properly adopted policy instead of on services for the disabled is not a public interest disclosure.

Even if a disclosure is about improper conduct (eg substantial maladministration), it is not a public interest disclosure for the purposes of the Act if it is solely a disagreement about policy.

A personal grievance is a matter where, should the individual involved be satisfied that appropriate action has been taken, the whole matter is then taken as resolved. By contrast, public interest matters are ones that, even if they also involve personal grievances, are not necessarily resolved just because the personal interests are satisfied. A private grievance, for which alternative processes exist, is to be excluded.

Employment related grievances such as disciplinary action and transfers - not being disciplinary action taken in reprisal for the making of a disclosure – are not covered by the Act.

Sub-clause (3) allows for disclosures even if the person cannot identify the public officer or public body to which the information relates or the disclosure is about conduct which occurred before the commencement of the legislation. Although there is full retrospectivity, the Commissioner has a discretion not to investigate where there is no reasonable prospect of obtaining evidence ie for a successful investigation (see clause 21(1)(d)). In some circumstances, the disclosure may be about conduct which occurred so long ago that there would be no documentary evidence available.

Clause 11. How public interest disclosure is made
Generally, a disclosure is to be made to the Commissioner for Public Interest Disclosures, unless it is about a member of the Legislative Assembly (other than the Speaker), in which case, the disclosure must be made to the Speaker of the Legislative Assembly.

However a disclosure can also be made to the responsible chief executive of the public body to which it relates.

A disclosure may be made orally, or in writing, but must be in accordance with prescribed procedures, which will be set out in Regulations.

Clause 12. Referral of public interest disclosure to Commissioner
Where the disclosure is made to the Speaker of the Legislative Assembly, the Speaker may refer it to the Commissioner for Public Interest Disclosures for investigation.

However if a disclosure is made to the responsible chief executive of a public body, the chief executive must refer the disclosure to the Commissioner for investigation within 14 days after receiving it.

Clause 13. Disclosure of further information treated as public interest disclosure
This clause makes it clear that any further information provided to anyone acting in an official capacity, such as the Commissioner or his staff investigating a disclosure, about the original disclosure is treated, and given the same level of confidentiality, as the original disclosure.

Clause 14. Protection from liability for making public interest disclosure
This clause provides protection for a person who makes a disclosure of public interest information (being information that, if true, would tend to show improper conduct), from civil or criminal liability or from disciplinary action or other adverse administrative action for making the disclosure.

Sub-clause (2) provides that, in proceedings for defamation, a public interest disclosure is to be treated as absolutely privileged.

Sub-clause (3) provides that the protection extends to disclosures made in breach of any obligation of confidentiality. Thus a person who makes a disclosure does not, by doing so, commit any breach of confidentiality, and cannot be penalised under the provisions of any Act, or the clauses of any agreement regarding confidentiality requirements. This includes confidentiality provisions in contracts of employment or under the Public Sector Employment and Management Act. It would also protect a person against prosecution for offences under sections 76 and 222 of the Criminal Code, regarding disclosure of official secrets and unlawfully obtaining confidential information.

Sub-clause (4) further provides that the protections do not apply to a disclosure that is an abuse of process (ie a disclosure made for reasons outside the scope or purpose of the legislation) or that contains information that the discloser knows to be misleading (including where the person knows the information is not true).

Misleading information is defined in the definition section 4 as meaning misleading in a material particular because it does not include relevant information or include misinformation. This covers false information and the omission of a material particular.

Sub-clause (4) further provides that the protections do not apply to the conduct of the discloser (ie a person’s liability for his or her own conduct is not affected by the person’s disclosure of that conduct under the Act).

Clause 15. Offence to commit act of reprisal
This clause creates an offence of committing an act of reprisal against another, carrying a penalty of 400 penalty units or imprisonment for two years for a natural person (2,000 penalty units for a body corporate under section 38DB of the Interpretation Act).

The offence consists of causing or threatening to cause harm to another in the belief that any person has made or intends to make a disclosure, or has complied or intends to comply with a requirement by a person acting in an official capacity (such as the giving of documents or information pursuant to a notice), or has cooperated or intends to cooperate with a person acting in an official capacity under the Act (such as voluntarily answering questions, producing documents, or providing information) and the person wants retribution, or to discourage the disclosure, compliance or cooperation.

It is noted that this clause also covers "is cooperating", if a person has cooperated up to the point at which the conduct is considered.

Harm is defined in clause 4 as including injury, loss or damage, intimidation or harassment, discrimination, disadvantage or adverse treatment (including disciplinary action) in relation to employment, career, profession, trade or business.

The stated fault elements for the offence are knowledge or belief that the discloser has made a disclosure, cooperated or complied in the giving of documents or information, or intends to do so; and the intention to discourage, or obtain retribution for, the act or intended act.

It is not intended that these provisions should prevent or curtail proper departmental action that is unrelated to the disclosure. However, the defendant has the onus of proving that the reprisal action was not taken for a reason set out above or, if it was taken for a reason set out above, the reason was not a substantial reason for taking the action.

A prosecution for the offence must be commenced within two years after the offence is alleged to have been committed.

Incitement to commit the offence is covered by s43BI of the Criminal Code and complicity to take reprisal action is covered by section 43BG of the Criminal Code.

Clause 16. Liability for damages for act of reprisal
This clause provides for a person who takes reprisal action against another person for a disclosure to be liable in damages to the other person. Such damages are recovered through the courts as for a tort and any remedy that may be granted for a tort, including exemplary damages, may be granted.

This right for damages does not affect any other right or remedy that may be available to the person arising from the reprisal action.

It is noted that should the person suffer personal injury (such as a psychological or psychiatric injury), the Personal Injuries (Liabilities and Damages) Act would apply.

Clause 17. Injunctive remedies for act of reprisal
This clause allows a person, who believes reprisal action has been taken, or may be taken, against him or her in reprisal for a disclosure, compliance or cooperation to apply to the Supreme Court for an injunction, either to prevent the action or for an order for action to remedy any prejudice ie harm suffered as a result of the reprisal action taken.

The Commissioner for Public Interest Disclosures may also apply to the Supreme Court for an injunction.

The Supreme Court may make interim orders. An interim injunction would generally be in the nature of a restraint to preserve the status quo.

Clause 18. Request for relocation
This clause provides for a public officer to request relocation because of an act of reprisal, or apprehended act, against the officer for a disclosure, compliance or cooperation.

The request is made to the Chief Executive of the Agency in which the person is employed.

The Chief Executive may relocate the officer if satisfied the ground for the request is established. The employee must not be relocated without his or her agreement, and if the relocation is to another Agency, without the agreement of the Chief Executive of that other Agency.

Clause 19. Review of relocation decision
A public officer may apply (in writing) for the review of a decision relating to relocation, such as a decision to refuse to relocate or a decision to relocate on the grounds that the relocation is an act of reprisal.

If the applicant is a public sector employee, the review is conducted by the Commissioner for Public Employment who may exercise the Commissioner's powers to relocate the applicant within the public sector (eg under section 35(3) of the Public Sector Employment and Management Act). The Commissioner for Public Employment must inform the applicant of the result of the review by notice in writing, eg the decision and any recommendations made for relocation.

A public sector employee who is aggrieved by a decision regarding relocation, also has a right of review under section 59 of the

Public Sector Employment and Management Act for example on the grounds that he or she has been relocated or it is intended to relocate him or her, as a reprisal.

If the applicant is a public officer who is not a public sector employee, the review is conducted by the Commissioner for Public Interest Disclosures, who may make recommendations to the public body, and must inform the public officer of the the result of the review, eg the decision and any recommendations made for relocation. If the Commissioner for Public Interest Disclosures recommends relocation, the chief executive of the public body must report back on the action taken to implement the recommendation, and if not why not.

If the Commissioner for Public Interest Disclosures is not satisfied with the chief executive’s response (eg considers that insufficient steps have been taken within a reasonable time to give effect to the recommendation), the Commissioner must send a report to the responsible Minister.

Clause 20. Commissioner to investigate public interest disclosure
This clause clarifies that the Commissioner for Public Interest Disclosures is responsible for all disclosures. The Commissioner must investigate all disclosures which show or tend to show improper conduct (including acts of reprisal), in accordance with Part 3 – except those covered by clause 21 which sets out the circumstances where the Commissioner has a discretion as to whether or not to investigate and Division 2 where a disclosure may be referred to another body.

Clause 21. Cases when an investigation is not required
This clause provides that the Commissioner for Public Interest Disclosures has a discretion as to whether or not to investigate a disclosure in the following circumstances:

(a) the disclosure is an abuse of process eg vexatious in the sense that it is made for reasons outside the scope or purpose of the Act. It may be however that the public interest information, even though given vexatiously, raises a substantive or significant point that should be investigated;
(b) the information disclosed is too trivial to warrant investigation;
(c) if the person who makes the disclosure delayed making it for at least 12 months after becoming aware of the matter;
(d) the disclosure relates to matters occurring so long ago that there is no reasonable prospect of a successful investigation, for example, where a disclosure relates to conduct which occurred a long time before commencement of the legislation and there is no reasonable prospect of obtaining information about the disclosure;
(e) the matter has already been investigated. This would include where the matter has been the subject of legal proceedings;
(f) the matter is the subject of proceedings before a court or tribunal or would be more appropriately dealt with by a court or tribunal; or
(g) the disclosure contains misleading information. Misleading information is defined in the definition section 4 as meaning misleading in a material particular because it does not include relevant information or it includes misinformation. This includes false information.
Sub-clause (2) provides that the Commissioner for Public Interest Disclosures is required to give to the person who made the disclosure, written reasons for a decision not to investigate (or to discontinue an investigation). The Commissioner must also give written notice to the responsible chief executive who referred a disclosure under clause 12.

Division 2 Referral of public interest disclosures for investigation by other entities

Clause 22. Referral to other body
This clause allows the Commissioner for Public Interest Disclosures to refer a disclosure, if the Commissioner considers it appropriate, to the Ombudsman, the Auditor-General, the Police Commissioner or to another prescribed person or body for investigation.

This allows for certain matters requiring a particular expertise, or which can be determined immediately to be a serious criminal matter, to be referred to Police or the Auditor-General or other appropriate specialist area or agency (if prescribed) for investigation.

If this occurs, then the investigation will be undertaken as the person or body considers appropriate under its own powers of investigation and will not be investigated under the Act. It is noted however that the disclosure does not lose its protection under this Act.

Sub-clause (2) provides that a disclosure referred to the Ombudsman is to be dealt with as a complaint under the Ombudsman legislation.

A disclosure about an MLA which was referred by the Speaker to the Commissioner, cannot however be referred by the Commissioner to another body under this section.

Clause 23. Right to object to referral
The clause requires the Commissioner to notify (in writing) the person who made a public interest disclosure of his or her intention to refer the disclosure to another body and to advise that the person may object to the referral or to the specified body.

Any objection to the referral must be in writing, within 14 days after notification or such longer time as is allowed by the Commissioner, setting out the reasons for the objection.

The Commissioner must consider the objection and reasons for objection and decide whether or not to refer the disclosure to the specified body. The Commissioner must notify the objector of the decision (in writing) within 14 days of receiving the objection. Referral cannot take place until the Commissioner has notified the person of the final decision. The Commissioner can then refer the disclosure to the referral body.

If the Commissioner decides not to refer the disclosure to the specified body but wants to refer it to another body, the process starts again.

The Commissioner may give the referral body any information the Commissioner has about the disclosure. In doing so, the Commissioner would not be breaching confidentiality under clause 52 as it would be done in the course of performing official functions under the Act.

Clause 24. Notice of investigation
This clause, which does not apply to the investigation of disclosures about an MLA, provides that the Commissioner for Public Interest Disclosures is required to give written notice of an intention to conduct an investigation to the responsible authority (defined in clause 8).

Clause 25. Procedure generally
This clause sets out the conduct of an investigation:

· an investigation must be conducted in private and in the way that the Commissioner for Public Interest Disclosures considers appropriate;
· the Commissioner may make inquiries the Commissioner considers appropriate;
· the Commissioner may take other steps the Commissioner considers appropriate to obtain relevant information. This would include consulting with persons the Commissioner considers appropriate;
· the Commissioner may hold a formal hearing but is not required to; and
· the Commissioner is not bound by the rules of evidence, but must comply with natural justice.
Clause 26. Power to require information and documents
This clause gives the Commissioner for Public Interest Disclosures power to require a person to answer questions or give to the Commissioner specified information, documents or things, or of a specified kind relevant to the investigation within a stated reasonable time – unless an oral response to a question is required in which case it must be given immediately. Providing specified information could include creating a document containing information reasonably required for the investigation.

The request can be made orally if an oral response is required; otherwise it must be done in writing. The Commissioner must advise that the request is for the purposes of an investigation and if the person is under the investigation.

The Commissioner can require written information to be verified by statutory declaration.

It is a strict liability offence to fail to comply with such a request, without reasonable excuse, with a penalty of 100 penalty units (and for a body corporate 500 penalty units under section 38DB of the Interpretation Act).

Sub-clause (7) allows the Commissioner for Public Interest Disclosures to keep a document or other thing, produced in connection with an investigation, for a reasonable period and to take copies and extracts from documents. It also provides that the Commissioner must allow the person who would be entitled to possession, if it were not in the Commissioner’s possession, reasonable access to it, eg for inspection.

Clause 27. Power to require person to attend for examination
This clause gives the Commissioner for Public Interest Disclosures power, by written notice, to require a person to attend before the Commissioner for examination at a specified place and time and to answer relevant questions and to produce specified documents or things relevant to the investigation. The notice must also specify the nature of the investigation and if the person is under investigation.

An examination could form part of a formal hearing but would not necessarily do so, ie you could have an examination without proceeding to a formal hearing.

Sub-clauses (4) and (5) provide that a person required to attend for an examination may, with the Commissioner’s approval, be represented (by a legal practitioner or agent), and for the representative to make submissions and, with the Commissioner’s approval, ask witnesses questions relevant to the investigation.

The Commissioner may administer an oath or affirmation to all witnesses for the purposes of an examination.

It is a strict liability offence to fail to comply with a notice to attend, without reasonable excuse, with a penalty of 100 penalty units (and for a body corporate 500 penalty units under section 38DB of the Interpretation Act).

Sub-clause (10) allows the Commissioner for Public Interest Disclosures to keep a document or other thing, produced in connection with an investigation, for a reasonable period and to take copies and extracts from documents. It also provides that the Commissioner must allow the person who would be entitled to possession, if it were not in the Commissioner’s possession, reasonable access to it, eg for inspection.

Clause 28. Investigation at premises of public officer or public body
This clause allows the Commissioner for Public Interest Disclosures, at any reasonable time, to enter and inspect premises occupied by a public officer or public body (not including a residence), take equipment, persons and materials reasonably required for the investigation into the premises, take copies and extracts from documents located at the premises and require reasonable help and assistance from any public officer at the premises.

Clause 29. Assistance for conducting investigation
This clause allows the Commissioner for Public Interest Disclosures to request a chief executive for a public body or the Commissioner of Police to give such assistance as the Commissioner for Public Interest Disclosures reasonably requires for the conduct of an investigation. This includes the making of arrangements to have a police officer (for instance, if the matter appears to involve a serious crime) or member of staff of the body to help in the conduct of the investigation.

This is not to be considered a directory (or mandatory) provision in any way and any such arrangements would be a matter of negotiation between the Commissioners/ chief executives.

Clause 30. Opportunity to comment before adverse report
This clause requires the Commissioner for Public Interest Disclosures to give specified persons (namely each responsible authority as defined in clause 8 and the person who would be the subject of the adverse comment) an opportunity to make submissions on a matter where it appears to the Commissioner that there may be grounds for making a report adverse to a public officer or public body or other person.

Any submission made must be taken into account and fairly represented in the final report.

Clause 31. Report on investigation
This clause provides that the Commissioner for Public Interest Disclosures, after completing an investigation, is required to report the findings of the investigation to each responsible authority (defined in clause 8) and may make recommendations (except in the case of a referred MLA investigation) as to the action to be taken as a result of the investigation.

· that the public interest disclosure be referred to an appropriate authority for further consideration;
· that action be taken to remedy any harm arising from the conduct investigated. Harm is defined in clause 4 as including injury, loss or damage, intimidation or harassment, discrimination, disadvantage or adverse treatment (including disciplinary action) in relation to employment, career, profession, trade or business; and
· that action be taken to prevent the improper conduct investigated from continuing or occurring in the future.
Clause 32. Report about implementing recommendations
This clause allows the Commissioner for Public Interest Disclosures to require a responsible authority (defined in clause 8) to report to the Commissioner, within a specified reasonable time, of the steps that have been taken or are intended to be taken to give effect to a recommendation or of the reasons if no steps have been or are intended to be taken.

Sub-clauses (2) and (3) allow the Commissioner, if of the view, after considering the responsible authority’s report, that insufficient steps have been taken within a reasonable time to give effect to a recommendation, to report to the Minister (being the Minister with responsibility for this Act), for tabling in the Legislative Assembly.

Clause 33. Removal of material if publication not in public interest
This clause gives the Commissioner of Police an opportunity to consider the content of a report prepared by the Commissioner for Public Interest Disclosures for the Minister and to request removal of any material the publication of which may materially prejudice an ongoing police investigation, would endanger the safety of any person, or would not otherwise be in the public interest. The Police Commissioner must state the reasons for the request.

The Commissioner for Public Interest Disclosures must consider the Police Commissioner’s request and give written notice of his/her final decision. If the Commissioner refuses the police request, the reasons for the refusal must be given.

Clause 34. Discloser to be informed of results of investigation
This clause requires the Commissioner for Public Interest Disclosures to advise, by notice in writing, the person who made the disclosure of the findings of the investigation, any recommendations made and any steps taken to give effect to the recommendations. This must be done within a reasonable time after completing an investigation.

If it appears to the Commissioner that insufficient steps have been taken within a reasonable time to give effect to any recommendation made, the Commissioner must notify the discloser, making any comments on it the Commissioner considers appropriate.

The Commissioner may not disclose any additional information regarding an investigation about a Police Officer without consulting the Police Commissioner, if the disclosure was about a police officer, or the Chief Executive of the public body and the Police Commissioner, if the disclosure was about another public officer.

Clause 35. Referral to DPP
This clause allows the Commissioner for Public Interest Disclosures to refer any suspected breach of the criminal law to the Director of Public Prosecutions at any time during or after completing an investigation.

The Commissioner may give the Director any relevant information. In doing so, the Commissioner would not be breaching confidentiality under clause 52 as it would be done in the course of performing official functions under the Act, in connection with the prosecution (or proposed prosecution) of an offence. However the information provided under this provision cannot include information provided as a result of clause 38(2) which is not admissible in evidence.

The referral, and any details the Commissioner considers appropriate, may be included in a report to a responsible authority.

Clause 36. Privileges of Legislative Assembly not affected
This clause preserves the privileges, immunities and powers held, possessed or enjoyed by custom, law (including statute) or otherwise of the Legislative Assembly, the Speaker, members and committees of the Legislative Assembly.

It specifically states that a disclosure about a member of the Legislative Assembly is not a breach of privilege eg would not be a contempt of the Legislative Assembly.

Clause 37. Confidential or privileged information in context of investigation
This clause allows a person to provide information for an investigation without breaching confidentiality or secrecy laws, restrictions or agreements. Thus confidentiality provisions in contracts of employment or under the Public Sector Employment and Management Act do not apply to the disclosure of information for an investigation. It is noted that, as the restriction does not apply, neither will the penalty for contravening the restriction.

This clause also provides that public interest privilege does not protect information in an investigation and that the Territory or a public body is not entitled to claim legal professional privilege. This is in contrast to clause 38(1) which preserves legal professional privilege when claimed by a witness (defined in clause 4 as an individual) in respect of information about their conduct or that of another individual (ie natural person).

Sub-clause (2) also protects information within the meaning of section 38 of the Northern Territory Aboriginal Sacred Sites Act (ie information of a secret nature according to Aboriginal tradition acquired under that Act); confidential information about communications, deliberations, proceedings and decisions of the Executive Council, Cabinet and specified Legislative Assembly committees, as well as communications between Australian governments; and information that is exempt under section 45(1)(a) of the Information Act relating to Executive Council and Cabinet documents.

Sub-clause (3) provides that a certificate issued by the Administrator certifying that any information is about subclause (2)(b) or (c) communications, deliberations, proceedings or decisions is conclusive. This is consistent with the Ombudsman legislation.

Clause 38. Witness privileges
This clause provides that a witness (defined in clause 4 as meaning an individual required to answer questions, to provide information, or to produce documents or things in connection with an investigation) has a reasonable excuse for failing to comply with a notice to produce documents or information if it relates to their conduct or that of another natural person (ie not the Territory or a public body) and is protected by legal professional privilege.

Subclause (2) however provides that a witness cannot claim the privilege against self-incrimination (in respect to offences, discipline or penalty) but any information so disclosed is not admissible in civil, criminal or disciplinary proceedings unless it is given in proceedings for an offence against the Act, or civil proceedings in respect of reprisal action (ie for damages under clause 16 or an injunction under clause 17).

Clause 39. Office of Commissioner
This clause establishes the office of the Commissioner for Public Interest Disclosures for the Northern Territory and provides that the Commissioner is to be appointed by the Administrator. A person who has been an MLA or member of another Parliament or a council member within the last 3 years cannot be appointed.

Subclause (4) provides for concurrent appointments in that it provides that the office of the Commissioner may be held in conjunction with any other public office. This is to allow for the appointment as Commissioner to be made in respect of an existing statutory office holder, such as the Information Commissioner.

Clause 40. Terms and conditions of appointment
This clause provides that the term of appointment of the Commissioner for Public Interest Disclosures is 5 years and, at the end of that term, they can be re-appointed. The Commissioner may resign office by giving written notice to the Administrator.

The Administrator decides the conditions of office of the Commissioner (including remuneration, expenses and allowances) and administers the oath of office (to faithfully, impartially and truly exercise the powers and perform the functions of Commissioner according to law) before the Commissioner starts acting in an official capacity as the Commissioner.

The Commissioner cannot be in paid employment elsewhere while Commissioner, without the Minister's written consent. The Minister also approves leave of absence for the Commissioner (on such conditions as the Minister decides) and may retire the Commissioner on the ground of incapacity (with the Commissioner's consent).

Clause 41. Independence
This clause provides for the independence of the office of the Commissioner for Public Interest Disclosures, ie the Commissioner is not subject to direction by any person about the way the powers or functions are exercised or the priority given to investigations.

This clause also requires the Commissioner to act independently, impartially and in the public interest in exercising those powers or functions.

Clause 42. Termination of appointment
This clause provides that the appointment of the Commissioner for Public Interest Disclosures automatically ceases if they become a candidate for election as a Member of Parliament or council or found guilty of an indictable offence or become bankrupt

Sub-clause (2) provides that it is the Administrator who may terminate the appointment of the Commissioner, by notice in writing, if the Commissioner becomes physically or mentally incapable of satisfactorily performing the duties of office, is guilty of misconduct, engages in paid employment outside the duties of office without the Minister's approval or is absent, without the Minister's leave and without reasonable excuse, for 14 consecutive days or 28 days in any 12 months.

Clause 43. Acting Commissioner
This clause provides that where there is a vacancy in the office of the Commissioner for Public Interest Disclosures or when the Commissioner is unable or unavailable to perform the duties of the office, the Administrator may appoint a person to act in the office of the Commissioner for a term of up to 12 months or the Minister may appoint a person to act for a term of up to 3 months.

The terms and conditions of appointment of an Acting Commissioner are decided by the Administrator.

Clause 44. Staff
This clause provides that the staff of the Commissioner for Public Interest Disclosures consists of public sector employees employed in the Commissioner’s office and Agency staff made available by a Chief Executive by arrangement under clause 29.

It is noted that members of Police would not become staff as they are not “persons employed in an Agency”.

Furthermore it would depend on the clause 29 arrangement as to whether employees merely help the Commissioner for Public Interest Disclosures in an investigation or are seconded as staff of the Commissioner.

Clause 45. Staff not subject to external direction
This clause provides that the staff of the Commissioner for Public Interest Disclosures are subject only to the direction of the Commissioner (or another member of staff) in the performance of their duties under the Act.

Clause 46. Delegation
This clause provides the Commissioner for Public Interest Disclosures with a power of delegation.

Clause 47. Guidelines relating to dealing with public interest disclosures and disclosers
This clause requires the Commissioner for Public Interest Disclosures to prepare and publish guidelines about dealing with public interest disclosures, including investigations, and protecting a discloser from an act of reprisal, including the steps to be taken within a public body to protect a discloser. Publication can by way of the Commissioner's internet website.

Clause 48. Annual report by Commissioner
This clause sets out what information regarding the types of disclosures received and the investigation of disclosures the Commissioner for Public Interest Disclosures must include in the annual report that must be given to the Minister. The report must include the number and kinds of disclosures made (including those referred to the Commissioner by the Speaker); the number and kinds of disclosures investigated and those not investigated and why; and the number and kinds of investigations for which a report was made and, if any recommendations were made, details of the recommendations and actions taken on each.

On receipt of the Commissioner’s annual report, the Minister must table a copy in the Legislative Assembly within 6 sitting days.

Clause 49. Other reports by Commissioner
This clause enables the Commissioner for Public Interest Disclosures to provide the Minister with a report on any matter arising in relation to a public interest disclosure, for tabling in the Legislative Assembly within 6 sitting days.

Clause 50. Removal of material if publication not in public interest
This clause gives the Commissioner of Police an opportunity to consider the content of any report prepared by the Commissioner for Public Interest Disclosures for the Minister under the previous provision and for the Police Commissioner to request removal of any material the publication of which may materially prejudice an ongoing police investigation, would endanger the safety of any person, or would not otherwise be in the public interest. The Police Commissioner must state the reasons for the request.

Clause 51. Misleading information or document
This clause creates offences of giving misleading information, or document containing misleading information, to a person acting in an official capacity (being the Commissioner for Public Interest Disclosures, a member of the Commissioner’s staff, or someone else carrying out functions under the Act or functions otherwise related to the administration of the Act), that the person knows is misleading (defined in clause 4 as misleading in a material particular because it does not include relevant information or includes misinformation).

The offences would cover a person making a false disclosure or the omission of a material particular.

The offences carry a penalty of 400 penalty units or imprisonment for 2 years for a natural person (and 2,000 penalty units for a body corporate under section 38DB of the Interpretation Act).

The stated fault elements are knowledge the information or document is misleading and knowledge the person is acting in an official capacity.

There would be no offence, if the person, when giving the document to the official, draws the misleading aspect of the document to the official's attention and, to the extent the person can reasonably do so, gives the official the information necessary to correct the document.

Clause 52. Obstruction of person acting in official capacity
This clause creates an offence of obstructing a person acting in an official capacity (defined in clause 4 as the Commissioner for Public Interest Disclosures, a member of the Commissioner’s staff, or someone else carrying out functions under the Act).

The offence carries a penalty of 200 penalty units or imprisonment for 12 months for a natural person (and 1,000 penalty units for a body corporate under section 38DB of the Interpretation Act).

The stated fault elements are intentionally obstructing the other person and knowledge that person is acting in an official capacity.

It is a defence to a prosecution for the offence if the defendant has a reasonable excuse.

Clause 53. Confidentiality of information
This clause creates offences of disclosing, or making improper use of, confidential information (defined in subclause (5) as information about a public interest disclosure or the investigation of such a disclosure not including information in the public domain) obtained when acting in an official capacity (defined as exercising powers or performing functions under this Act or exercising powers or performing functions otherwise related to the administration of this Act.), such as an investigation into a disclosure or as a result of a disclosure. Disclosing would include disclosing information to a court or tribunal (and see clause 57).

“Improper use” of information is defined in subclause (5) to mean if the person uses the information to gain some private benefit or to benefit or cause harm to someone else.

The penalties for both offences are 400 penalty units or imprisonment for two years for a natural person (and 2,000 penalty units for a body corporate under section 38DB of the Interpretation Act).

Knowledge of the confidential nature of the information is a fault element for both offences. Recklessness as to disclosure is also a fault element of disclosing confidential information which will include knowledge and intention pursuant to section 43AK(4) of the Criminal Code (i.e. where recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element). The other fault element of making improper use of the information is intention to make improper use of the information.

The fault element for the circumstance that the information was acquired in the course of carrying out functions is strict liability.

Disclosures of confidential information can however be made without committing an offence, ie are authorized by the Act, provided the disclosure is:

· (other than identifying information), necessary for exercising a power or performing a function under the Act;
· (other than identifying information), for the purposes of any report or recommendation made under the Act;
· with the consent of the person in whose favour the duty of confidentiality exists;
· for a prosecution or proposed prosecution for an offence against the Act (eg offence of misleading information or document (s51) or obstructing an official (s52));
· for the purposes of civil proceedings for damages for reprisal action (s16) or an injunction for reprisal action (s17); or
· for the purpose of obtaining legal advice from a legal practitioner, or
· authorized by the Commissioner.
These offences also protect the identity of both the person making a disclosure and the person against whom a disclosure is made, being confidential information. Identifying information (defined in subclause (5) as information identifying, or tending to identify, a particular individual as a discloser or a person to whom a disclosure relates) must not be disclosed unless the person consents, it is for a prosecution, civil reprisal proceedings or to obtain legal advice or it is authorized by the Commissioner, who can only authorize it if natural justice requires the identifying information to be disclosed, or it is necessary for the effective investigation of a public interest disclosure or it is in the public interest to do so.

Clause 54. Notices etc
This clause provides that any notice under the Act may be given by serving the notice in accordance with section 25 of the Interpretation Act, eg personally or by post, or may be emailed as an attachment to an email.

There is no requirement to notify a person where a disclosure is made anonymously.

Clause 55. Exclusion of certain injunctive remedies
The clause protects the independence of the Commissioner for Public Interest Disclosures under the Act, by prohibiting proceedings or court orders restraining or compelling the Commissioner in relation to any function or power given to the Commissioner under the Act, including the carrying out of investigations or the making of reports or recommendations.

Clause 56. Protection from liability
This clause provides protection from civil or criminal liability to persons for acts done or omitted to be done in good faith when acting or purportedly acting in an official capacity (defined in clause 4 as the Commissioner for Public Interest Disclosures, a member of the Commissioner’s staff, or someone else exercising powers or performing functions under this Act or exercising powers or performing functions otherwise related to the administration of this Act).

This clause does not affect the liability of the Territory and does not derogate from Part VIIA of the Police Administration Act which protects members of police from civil liability and provides for the vicarious liability of the Territory for torts committed by a member.

Sub-clause (4) also provides that the leave of the Supreme Court is required for proceedings to be brought against a person for acts alleged to have been done or omitted to be done in bad faith when acting or purportedly acting in an official capacity. The Supreme Court may give leave if satisfied there are substantial grounds for believing the person has acted in bad faith.

Clause 57. Officials not to be called to give evidence
The clause also preserves confidentiality by preventing a person who is or has acted in an official capacity from being called to give evidence in any civil, criminal or disciplinary proceedings in respect of any matter which came to the person’s knowledge when acting or purportedly acting in an official capacity, except in proceedings in which the Commissioner, a member of staff, or another person is alleged to have acted improperly in an official capacity, or in proceedings for an offence against the Act.

Clause 58. Regulations
This clause enables the Administrator to make regulations under the Act.

Section 65(1) of the Interpretation Act provides that such a power enables subordinate legislation to be made with respect to any matter that is required or permitted to be prescribed by the Act, or is necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Clause 60. New section 49B
This clause amends the Information Act by inserting a new provision to support and protect confidentiality of information contained in disclosures and the investigation of disclosures.

The new section 49B of the Information Act provides that such information is exempt government information under section 44 because it is not in the public interest to disclose the information. Thus the Information Act does not apply to a record in the possession of a public body that is a public sector organisation to the extent the record discloses information about a disclosure including information likely to lead to the identification of a person who made a disclosure or of a person against whom a disclosure is made.

Clause 61. Expiry of Part 7
This clause provides that Part 7 (ie inserting a new section in the Information Act) expires the day after Part 7 commences.

Northern Territory Explanatory Statements

PUBLIC INTEREST DISCLOSURE BILL 2008