2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Chief Minister)

Part 1.1 Auditor-General Act 1996 51

Part 1.2 Discrimination Act 1991 51

Part 1.3 Ombudsman Act 1989 55

Part 1.4 Public Sector Management Act 1994 56

2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Chief Minister)

An Act to protect people who disclose certain conduct in the public sector that is contrary to the public interest, and for related purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Public Interest Disclosure Act 2006.

(1) This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

(2) If this Act has not commenced within 9 months beginning on its notification day, it automatically commences on the first day after that period.

(3) The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘Legislative Assembly secretariat—see the Public Sector Management Act 1994, section 3.’ means that the term ‘Legislative Assembly secretariat’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The object of this Act is to improve the quality of public sector administration by—

(a) providing a way for people to confidentially disclose concerns about conduct in the public sector that is contrary to the public interest; and

(b) providing a way for people’s concerns about conduct in the public sector that is contrary to the public interest to be investigated and reported; and

(c) protecting from reprisal people who disclose concerns about conduct in the public sector that is contrary to the public interest.

(1) For this Act, a public interest disclosure is a disclosure that—

(a) contains public interest information implicating a government entity or government official; and

(b) is made to a contact person for the disclosure (the receiver).

(2) For this section, a disclosure is a statement made by a person that the person knows, believes or suspects something about an event, action or circumstance.

Note If a disclosure is not a public interest disclosure as defined in this section, there is no obligation under s 23 for an investigator to investigate the disclosure.

(1) For this Act, public interest information implicating a government entity or government official is information that tends to show that the government entity or government official—

(a) has engaged in conduct contrary to the public interest; or

(b) is engaging in conduct contrary to the public interest; or

(c) is, in the foreseeable future, likely to engage in conduct contrary to the public interest.

(2) To remove any doubt, a government entity is implicated in a public interest disclosure if public interest information in the public interest disclosure implicates a government official for the government entity.

1 systemic failure—failure to implement a system to give effect to a territory law

2 policy failure—adoption of a policy that is inconsistent with a territory law

3 pattern of noncompliance—repeated failure to comply with a territory law

4 fraud—intentionally falsifying a document

5 corruption—receiving a benefit for divulging confidential information

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) For this Act, a government entity is any of the following entities:

(a) an administrative unit;

(b) a territory authority;

(c) a territory-owned corporation;

(d) a subsidiary of a territory-owned corporation;

(e) a territory instrumentality;

(f) a statutory office-holder;

(g) the Legislative Assembly secretariat;

(h) an entity prescribed by regulation for this subsection.

(2) However, government entity does not include any of the following entities:

(a) the ombudsman;

(b) a judge;

(c) the master of the Supreme Court;

(d) a magistrate;

(e) a member of the Legislative Assembly;

(f) a person employed under the Legislative Assembly (Members’ Staff) Act 1989;

(g) an entity prescribed by regulation for this subsection.

(1) For this Act, a government official for a government entity is—

(a) a person who is or has been—

(i) an employee of the government entity; or

(ii) a contractor carrying out a function of the government entity for the government entity; or

(b) a person prescribed by regulation as a government official for a government entity for this definition.

(2) In this section:

employee, of a government entity, includes—

(a) if the government entity is a territory instrumentality—a staff member of the territory instrumentality if the CEO of the territory instrumentality has, or had, all the powers of a chief executive in relation to the staff member under the Public Sector Management Act 1994, section 24 (Powers of chief executive officers of certain territory instrumentalities); and

(b) if the government entity is a statutory-office holder—a staff member of the statutory office-holder if the statutory office-holder has, or had, all the powers of a chief executive in relation to the staff member under the Public Sector Management Act 1994, section 25 (Powers of certain statutory office-holders); and

(c) if the government entity is the Legislative Assembly secretariat—

(i) the clerk of the Legislative Assembly; and

(ii) a member of the secretariat staff under the Public Sector Management Act 1994, section 54.

(1) For this Act, a contact person for a disclosure is—

(a) for any disclosure—

(i) a declared contact person for any government entity implicated in the disclosure; or

Note Declared contact person is defined in s (2).

(ii) if there is no declared contact person—the CEO of any government entity implicated in the disclosure; or

(iii) the ombudsman; or

(b) for a disclosure containing public interest information about a matter that relates to the Financial Management Act 1996—the auditor-general; or

(c) for a disclosure containing public interest information about employment under the Public Sector Management Act 1994—the commissioner for public administration.

(2) The CEO of a government entity may declare someone to be a contact person for public interest disclosures implicating the government entity (a declared contact person).

(3) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

In this Act:

CEO, of a government entity, means—

(a) if the government entity is an administrative unit—the chief executive of the administrative unit; or

(b) if the government entity is a territory authority—the person who has responsibility for managing the affairs of the territory authority; or

(c) if the government entity is a territory-owned corporation or a subsidiary of a territory owned corporation—the person who has responsibility for managing the affairs of the territory-owned corporation; or

(d) if the government entity is a territory instrumentality—the person who has responsibility for managing the affairs of the territory instrumentality; or

(e) if the government entity is a statutory office-holder—the statutory office-holder; or

(f) if the government entity is the Legislative Assembly secretariat—the clerk of the Legislative Assembly; or

(g) if the government entity is an entity prescribed by regulation for this definition—the person with overall responsibility for the control of the entity.

1 Director of the Canberra Institute of Technology

2 Chief Planning Executive of the ACT Planning and Land Authority

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) For this Act, the supervisor for a public interest disclosure is—

(a) for a public interest disclosure containing public interest information about a matter that relates to the Financial Management Act 1996—

(i) the auditor-general; or

(ii) if the auditor general is implicated in the public interest disclosure—the ombudsman; and

(b) for a public interest disclosure containing public interest information about employment under the Public Sector Management Act 1994—

(i) the commissioner for public administration; or

(ii) if the commissioner for public administration is implicated in the public interest disclosure—the ombudsman; and

(c) for any public interest disclosure—the ombudsman.

(2) However, if under subsection (1) there is more than 1 supervisor for a public interest disclosure, the supervisors must decide which of them is to be the supervisor for the disclosure for part 4 (Investigating a public interest disclosure) and part 5 (Completing an investigation).

In this Act:

discloser—see section 15.

supervisor, for a public interest disclosure—see section 13.

(1) A person (the discloser) may make a public interest disclosure orally or in writing.

(2) If a public interest disclosure is made orally, the receiver must make a written record of the disclosure.

Note If a form is approved under s 69 for this provision, the form must be used.

After receiving a public interest disclosure from a discloser, the receiver must, if practicable, do the following things:

(a) if the discloser has not told the receiver the discloser’s name—

(i) ask the discloser for the discloser’s name; and

(ii) if the discloser does not tell the receiver the discloser’s name—tell the discloser that an anonymous public interest disclosure need not be investigated;

Note Under s 25 (b), the investigator may refuse to investigate, or end the investigation of, anonymous disclosures.

(b) if the discloser has not told the receiver the discloser’s contact details—

(i) ask the discloser for the discloser’s contact details; and

(ii) if the discloser does not tell the receiver the discloser’s contact details—tell the discloser that the discloser need not be told about the progress of any investigation carried out because of the public interest disclosure if the discloser does not tell the receiver the discloser’s contact details;

(c) ask the discloser if the discloser is making the public interest disclosure honestly and without recklessness about the truth of the public interest information contained in the disclosure;

(d) tell the discloser—

(i) that an investigator is not required to investigate the public interest disclosure if the investigator is satisfied that the discloser has made the disclosure dishonestly or with recklessness about the truth of the public interest information contained in the disclosure; and

Note Under s 25 (d), the investigator may refuse to investigate, or end the investigation of, a disclosure made dishonestly or recklessly.

(ii) that giving false or misleading information is an offence against the Criminal Code, section 338 (Giving false or misleading information); and

(iii) about the protection provided under section 49 (1) (Immunity for discloser), how the discloser may lose the protection under section 49 (2) and (3) and that, if the discloser loses the protection, the investigator may end the investigation of the public interest disclosure.

Note Under s 25 (e), the investigator may refuse to investigate, or end an investigation, if the discloser loses immunity under s 49.

(1) As soon as practicable after receiving a public interest disclosure, the receiver must give a copy of the disclosure to—

(a) the declared contact person for, or the CEO of, each implicated government entity; and

(b) each supervisor for the public interest disclosure.

(2) However, this section does not require more than 1 copy of the public interest disclosure to be given to a particular person.

(1) As soon as practicable after receiving a public interest disclosure, the receiver must—

(a) make a record of the public interest disclosure in the public interest disclosures register; or

(b) tell the administering agency about receiving the public interest disclosure.

(2) If a receiver tells the administering agency about receiving a public interest disclosure, the administering agency must record the receipt of the disclosure in the public interest disclosures register.

Note If a form is approved under s 69 for this provision, the form must be used.

In this Act:

entity-appointed investigator—see section 20 (2).

investigation notice—see section 33.

investigator, for a public interest disclosure—see section 20.

refusal notice—see section 26.

supervisor-appointed investigator—see section 20 (3).

(1) For this Act, the investigator for a public interest disclosure is—

(a) if there is an entity-appointed investigator for the public interest disclosure—

(i) the entity-appointed investigator; or

(ii) if the supervisor for the public interest disclosure is satisfied, on reasonable grounds, that the supervisor should be the investigator for the disclosure—the supervisor; or

(b) if there is no entity-appointed investigator for the public interest disclosure—the supervisor for the disclosure.

(2) The CEO of an implicated government entity may appoint someone (an entity-appointed investigator) to investigate a public interest disclosure.

(3) If the supervisor for a public interest disclosure is the investigator for a public interest disclosure, the supervisor may appoint someone (a supervisor-appointed investigator) to be the investigator for a public interest disclosure for the supervisor.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

Note 3 The person appointed need not be a public servant.

(1) An appointed investigator for a public interest disclosure may exercise all the functions of an investigator under this Act.

(2) If an appointed investigator has a material interest in an issue being investigated, or about to be investigated, by the appointed investigator, the appointed investigator must disclose the nature of the interest to the person who appointed the appointed investigator as soon as practicable after the relevant facts come to the appointed investigator’s knowledge.

Note 1 Material interest is defined in s (3). The definition of indirect interest in s (3) applies to the definition of material interest.

Note 2 The appointer’s power to make the appointment includes the power to suspend the appointee or to end the appointment (see Legislation Act, s 208).

(3) In this section:

appointed investigator means—

(a) an entity-appointed investigator; or

(b) a supervisor-appointed investigator.

associate, of a person, means—

(a) the person’s business partner; or

(b) a close friend of the person; or

(c) a family member of the person.

executive officer, of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director of the corporation.

indirect interest—without limiting the kinds of indirect interests a person may have, a person has an indirect interest in an issue if any of the following has an interest in the issue:

(a) an associate of the person;

(b) a corporation if the corporation has not more than 100 members and the person, or an associate of the person, is a member of the corporation;

(c) a subsidiary of a corporation mentioned in paragraph (b);

(d) a corporation if the person, or an associate of the person, is an executive officer of the corporation;

(e) the trustee of a trust if the person, or an associate of the person, is a beneficiary of the trust;

(f) a member of a firm or partnership if the person, or an associate of the person, is a member of the firm or partnership;

(g) someone else carrying on a business if the person, or an associate of the person, has a direct or indirect right to participate in the profits of the business.

material interest—an appointed investigator has a material interest in an issue if the appointed investigator has—

(a) a direct or indirect financial interest in the issue; or

(b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the appointed investigator’s functions in relation to the appointed investigator’s investigation of the issue.

(1) As soon as practicable after a public interest disclosure is made, the investigator for the disclosure must tell the discloser—

(a) that the investigator is the investigator for the public interest disclosure; and

(b) how the discloser may contact the investigator about the public interest disclosure; and

(c) if the investigator is not the supervisor for the public interest disclosure—who the supervisor for the disclosure is.

(2) This section does not apply if the discloser has not told the receiver the discloser’s name and contact details.

(1) The investigator for a public interest disclosure must investigate the disclosure.

(2) This section is subject to the following sections:

• section 24 (Investigator must refuse to investigate or end investigation)

• section 25 (Investigator may refuse to investigate or end investigation).

Note If a disclosure is not a public interest disclosure as defined in s 7, there is no obligation on an investigator to investigate the disclosure.

The investigator for a public interest disclosure must refuse to investigate, or must end the investigation of, the disclosure if satisfied that—

(a) the public interest information in the public interest disclosure is subject to legal professional privilege and the discloser is not authorised to waive the privilege; or

(b) the public interest information in the public interest disclosure has already been fully investigated under this Act or in another way; or

(c) there is a more appropriate way reasonably available to the discloser to deal with the public interest information in the public interest disclosure.

1 the public interest disclosure alleges discrimination and the allegation has already been investigated under the Discrimination Act 1991

2 the public interest disclosure alleges improper behaviour by a government agency and the allegation has already been investigated by the commissioner for public administration under the Public Sector Management Act 1994

3 the public interest disclosure raises a matter of privacy and the matter has already been investigated under the Privacy Act 1988 (Cwlth)

4 the public interest disclosure alleges a crime has been committed and the allegation has already been investigated by the police

1 the public interest disclosure raises issues about a doctor employed by the Territory and the issues would be more appropriately dealt with under the Health Professionals Act 2004

2 the public interest disclosure raises an occupational health and safety issue and the issue would be more appropriately dealt with under the Occupational Health and Safety Act 1989

3 the public interest disclosure raises issues about a government official’s behaviour and the issues would be more appropriately dealt with under provisions in the government entity’s certified agreement

4 the public interest disclosure alleges environmental harm has been committed and the allegation would be more appropriately dealt with by the commissioner for the environment

Note 1 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Note 2 The investigator’s decision may be reviewed under s 27.

The investigator for a public interest disclosure may refuse to investigate, or may end the investigation of, the disclosure if satisfied that—

(a) the discloser has withdrawn the public interest disclosure; or

(b) the discloser has not told the receiver the discloser’s name and contact details; or

(c) the public interest information in the public interest disclosure is trivial or insubstantial; or

(d) the discloser has made the public interest disclosure dishonestly or with recklessness about the truth of the public interest information in the disclosure; or

(e) the discloser is not eligible for the protections provided under section 49 (Immunity for discloser); or

(f) investigation, or further investigation, of the public interest disclosure is not warranted having regard to all the circumstances.

Note The investigator’s decision may be reviewed under s 27.

(1) This section applies if the investigator for a public interest disclosure refuses to investigate, or ends the investigation of, a public interest disclosure under—

(a) section 24 (Investigator must refuse to investigate or end investigation); or

(b) section 25 (Investigator may refuse to investigate or end investigation).

(2) The investigator must give the discloser a written notice (a refusal notice) telling the discloser—

(a) that the investigator is refusing to investigate, or ending the investigation of, the public interest disclosure under section 24 or section 25; and

(b) the ground mentioned in section 24 or section 25 for the investigator’s decision and the reasons for making the decision on that ground; and

(c) either—

(i) if the investigator is the supervisor for the public interest disclosure—that the decision is not reviewable under the Administrative Appeals Tribunal Act 1989; or

(ii) if the investigator is not the supervisor for the public interest disclosure—that the discloser may, not later than 21 days after the day the refusal notice is given to the discloser, apply to the supervisor for review of the investigator’s decision.

(3) However, the investigator must not give the discloser informant identifying information.

Note Informant identifying information is defined in s 60.

(4) If the investigator is not the supervisor for the public interest disclosure, the investigator must also give a copy of the refusal notice to the supervisor for the disclosure.

(5) This section does not apply if the discloser has not told the receiver the discloser’s name and contact details.

(1) This section applies if—

(a) the investigator for a public interest disclosure has given the discloser a refusal notice for the investigation of the disclosure; and

(b) the investigator is not the supervisor for the public interest disclosure.

(2) The discloser may, not later than 21 days after the day the refusal notice is given to the discloser, apply to the supervisor for the public interest disclosure for review of the investigator’s decision to refuse to investigate, or end the investigation of, the disclosure.

(3) The making of an application under this section does not affect the operation of the decision.

(1) On application under section 27, the supervisor for a public interest disclosure must review the decision of the investigator of the disclosure to refuse to investigate, or end the investigation of, the disclosure.

(2) After reviewing the decision, the supervisor must—

(a) confirm the decision; or

(b) amend the decision; or

(c) set aside the decision and substitute a new decision.

(1) After making a decision under section 28 (2), the supervisor must give the discloser a written notice (a review notice) telling the discloser—

(a) what the supervisor’s decision is; and

(b) the reasons for the supervisor’s decision; and

(c) that the supervisor’s decision is not reviewable under the Administrative Appeals Tribunal Act 1989.

(2) However, the review notice must not include informant identifying information.

Note Informant identifying information is defined in s 60.

(3) This section does not apply if the discloser has not told the receiver the discloser’s name and contact details.

(1) During an investigation, the investigator of a public interest disclosure must tell the discloser about the progress of the investigation at least once every 3 months.

(2) However, the investigator must not give the discloser—

(a) informant identifying information; or

(b) information that the investigator is satisfied would be likely to adversely affect the investigation.

(3) This section does not apply if the discloser has not told the receiver the discloser’s name and contact details.

(1) The investigator of a public interest disclosure may ask anyone to give the investigator information, including protected information, relevant to the investigation of the disclosure.

Note Protected information is defined in s 56.

(2) A government entity or government official must promptly comply with a request made to the entity or official.

(3) When asking the discloser for information, the investigator must tell the discloser that failure to comply with the request before the end of 14 days after the day it is made disqualifies the discloser from protection under section 49 (Immunity for discloser).

(4) When asking anyone for information, the investigator must tell the person that giving false or misleading information is an offence against the Criminal Code, section 338 (Giving false or misleading information).

Note 1 It is also an offence to obstruct, hinder or intimidate an investigator in the exercise of his or her functions under this Act (see the Criminal Code, s 361 and s 363).

Note 2 The identity of a person who gives information to an investigator under this section is protected (see pt 7).

(1) If someone gives information honestly and without recklessness to an investigator under section 31—

(a) the giving of the information is not—

(i) a breach of confidence; or

(ii) a breach of professional etiquette or ethics; or

(iii) a breach of a rule of professional conduct; and

(b) the person does not incur civil or criminal liability only because of the giving of the information; and

(c) the person is not liable to disciplinary action, or dismissal, (however described) only because of the giving of the information.

(2) This section does not apply to a person who is a discloser.

Note Disclosers are protected under s 49.

(1) This section applies if, during the investigation of a public interest disclosure, the investigator suspects that a government entity or government official may have been, may be, or may be in the foreseeable future likely to be, engaging in conduct contrary to the public interest.

Note For examples of conduct contrary to the public interest, see s 8.

(2) The investigator must either—

(a) give the person a written notice (an investigation notice) telling the person—

(i) of the investigator’s suspicion; and

(ii) the nature of the suspected conduct; and

(iii) that the person may, not later than 21 days after the day the investigation notice is given to the person, make a submission to the investigator about the conduct; or

(b) refer the public interest disclosure to the chief police officer under section 34.

(3) An investigation notice must not include sensitive information.

Note Sensitive information is defined in s 57.

(4) The investigator must consider any submission made by the person to the investigator before the end of the 21-day period.

(1) The investigator for a public interest disclosure may refer the disclosure to the chief police officer if satisfied, on reasonable grounds, that the public interest information in the disclosure tends to show that a government entity or government official—

(a) has engaged in conduct that is an offence against a territory law; or

(b) is engaging in conduct that is an offence against a territory law; or

(c) is, in the foreseeable future, likely to engage in conduct that is an offence against a territory law.

(2) After the public interest disclosure is referred to the chief police officer, the chief police officer must—

(a) investigate the public interest disclosure; or

(b) refuse to investigate the public interest disclosure.

(3) If the chief police officer refuses to investigate the public interest disclosure, the chief police officer must tell the investigator—

(a) of the refusal; and

(b) the chief police officer’s reasons for refusing to investigate the public interest disclosure.

(4) If the chief police officer investigates the public interest disclosure, the chief police officer must, when the investigation ends, tell the investigator of the outcome of the chief police officer’s investigation.

(5) If a public interest disclosure is referred to the chief police officer, the investigation of the disclosure by the investigator is suspended until the chief police officer tells the investigator of the chief police officer’s refusal to investigate or the outcome of the investigation.

(1) If the investigator for a public interest disclosure refers the disclosure to the chief police officer under section 34 (1), the investigator must tell the discloser that the disclosure has been referred to the chief police officer.

(2) If the chief police officer tells the investigator, under section 34 (3), that the chief police officer is refusing to investigate the public interest disclosure, the investigator must tell the discloser of the chief police officer’s refusal.

(3) If the chief police officer tells the investigator, under section 34 (4), of the outcome of the chief police officer’s investigation, the investigator must tell the discloser of the outcome.

(4) However, the investigator must not give the discloser—

(a) informant identifying information; or

(b) information that the investigator suspects on reasonable grounds may adversely affect a police investigation or a proceeding arising out of a police investigation.

The investigator is likely to suspect on reasonable grounds that giving the discloser certain information may adversely affect a police investigation if the chief police officer tells the investigator that it may.

(5) This section does not apply if the discloser has not told the receiver the discloser’s name and contact details.

In this part:

action report—see section 47.

completed, for an investigation of a public interest disclosure—see section 38, section 39 and section 40.

investigation report—see section 42.

The investigator for a public interest disclosure must carry out and complete the investigation promptly.

An investigation of a public interest disclosure is completed if the investigator—

(a) has investigated the public interest disclosure; and

(b) if the investigator has given an investigation notice to a person—has considered any submission made by the person to the investigator not later than 21 days after the day the investigation notice was given to the person; and

(c) has considered all information relevant to the public interest disclosure that is reasonably available to, or obtainable by, the investigator; and

(d) is satisfied that further reasonable investigation would not reveal further information relevant to the public interest disclosure; and

(e) has formed a conclusion, on reasonable grounds, that—

(i) an implicated government entity or a government official for an implicated government entity has been, is, or is in the foreseeable future likely to be, engaging in conduct contrary to the public interest; or

(ii) an implicated government entity or a government official for an implicated government entity has not been, is not, or is not in the foreseeable future likely to be, engaging in conduct contrary to the public interest; or

(iii) there is no reasonable likelihood of the investigator being able to find out whether an implicated government entity or a government official for an implicated government entity has been, is, or is in the foreseeable future likely to be, engaging in conduct contrary to the public interest.

An investigation of a public interest disclosure is also completed if—

(a) the investigator refuses to investigate, or ends the investigation of, the public interest disclosure under—

(i) section 24 (Investigator must refuse to investigate or end investigation); or

(ii) section 25 (Investigator may refuse to investigate or end investigation); and

(b) the investigator has, if required, given the discloser a refusal notice for the investigation; and

(c) if a refusal notice has been given to the discloser and the investigator is not the supervisor for the public interest disclosure—

(i) the discloser has not applied for review of the investigator’s decision before the end of the 21-day period after the day the refusal notice is given to the discloser; or

(ii) the supervisor has confirmed the investigator’s decision and, if required, told the discloser of the confirmation.

An investigation of a public interest disclosure is also completed if—

(a) the investigator has referred the public interest disclosure to the chief police officer under section 34 (Investigation may be referred to police); and

(b) the chief police officer has told the investigator—

(i) that the chief police officer is refusing to investigate the public interest disclosure under section 34; or

(ii) of the outcome of the chief police officer’s investigation under section 34 (4); and

(c) the investigator has, if required, told the discloser about the refusal or outcome under section 35 (Investigator must tell discloser about police investigation).

(1) As soon as practicable after completing the investigation of a public interest disclosure, the investigator for the disclosure must record in the public interest disclosures register, or tell the administering agency—

(a) the date when the investigation was completed; and

(b) whether it was completed under section 38, section 39 or section 40.

(2) If the investigator gives the administering agency the information mentioned in subsection (1) (a) and (b), the administering agency must record the information in the public disclosures register.

Note If a form is approved under s 69 for this provision, the form must be used.

(1) After an investigation of a public interest disclosure is completed, the investigator must give a report (an investigation report) about the investigation to—

(a) the CEO for each implicated government entity; and

(b) if the investigator is not the supervisor for the public interest disclosure—the supervisor for the disclosure.

(2) The investigator must give the investigation report to the people mentioned in subsection (1) as soon as practicable, but no later than 1 month after the investigation is completed.

(3) The supervisor for the public interest disclosure may extend the time mentioned in subsection (2).

Note A person may apply to the supervisor for the time to be extended, and the supervisor may extend the time, even though the time has ended (see Legislation Act, s 151C).

(1) An investigation report must include all information relevant to the investigation of the public interest disclosure that is known to the investigator at the completion of the investigation.

(2) An investigation report may include protected information.

Note Protected information includes sensitive information (see s 56).

(1) If an investigation of a public interest disclosure is completed under section 38 (Completion of investigation—fully investigated) because the investigator formed a conclusion mentioned in section 38 (e), the investigation report must include—

(a) the conclusion; and

(b) the investigator’s reasons for forming the conclusion.

(2) If an investigation of a public interest disclosure is completed under section 39 (Completion of investigation—investigation refused or ended) the investigation report must include—

(a) a statement to that effect; and

(b) the investigator’s reasons for the refusal or ending.

(3) If an investigation of a public interest disclosure is completed under section 40 (Completion of investigation—police investigation) the investigation report must include—

(a) a statement to that effect; and

(b) either the chief police officer’s refusal to investigate or the outcome of the chief police officer’s investigation.

(4) However, the investigator must not include in the investigation report information that the investigator suspects on reasonable grounds may adversely affect a police investigation or a proceeding arising out of a police investigation.

The investigator is likely to suspect on reasonable grounds that giving the discloser certain information may adversely affect a police investigation if the chief police officer tells the investigator that it may.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) An investigation report must include 1 of the following recommendations to the CEO of each implicated government entity:

(a) that the CEO take stated action (against a stated government official or otherwise);

(b) that the CEO take no action against a stated government official, or against anyone, about the public interest disclosure.

1 revision of a stated procedures manual

2 provision of training to stated government officials

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) An investigation report may include a recommendation to the CEO of an implicated government entity that the CEO take stated action to prevent, or reduce the likelihood of, future conduct contrary to the public interest happening.

Note For examples of conduct contrary to the public interest, see s 8.

(1) This section applies if a CEO of a government entity is given an investigation report about a public interest disclosure.

(2) The CEO must—

(a) consider the investigation report; and

(b) decide whether to take—

(i) any action recommended in the investigation report; and

(ii) other action to prevent, or reduce the likelihood of, conduct that is contrary to the public interest happening in the future; and

(iii) other action to prevent, or reduce the likelihood of, detrimental action being taken against the discloser; and

Note Detrimental action is defined in s 50.

(iv) any other action the CEO considers appropriate.

(1) This section applies if a CEO of a government entity—

(a) is given an investigation report about a public interest disclosure; and

(b) decides under section 46 to take action on the report.

(2) The CEO must give the following people a written report about the decision (an action report):

(a) the discloser;

(b) the supervisor.

(3) However, the CEO must not give the discloser informant identifying information.

Note Informant identifying information is defined in s 60.

(4) Subsection (1) (a) does not apply if the discloser has not told the receiver the discloser’s name and contact details.

(1) This section applies if—

(a) a CEO of a government entity has been given an investigation report about a public interest disclosure; and

(b) the CEO has not, within a reasonable time after receiving the investigation report, taken action that is, in the supervisor’s opinion, adequate and appropriate in the circumstances about the matters and recommendations in the investigation report.

(2) The supervisor must tell the Chief Minister about the investigation report and the CEO’s actions.

(3) If the supervisor tells the Chief Minister under subsection (2), the supervisor must give the Chief Minister a copy of—

(a) the investigation report; and

(b) the action report (if any).

(1) If a discloser makes a public interest disclosure honestly and without recklessness—

(a) the making of the public interest disclosure is not—

(i) a breach of confidence; or

(ii) a breach of professional etiquette or ethics; or

(iii) a breach of a rule of professional conduct; and

(b) the discloser does not incur civil or criminal liability only because of the making of the public interest disclosure; and

(c) the person is not liable to disciplinary action, or dismissal, (however described) only because of the making of the public interest disclosure.

(2) Subsection (1) does not apply to a discloser if the investigator of the public interest disclosure asks the discloser to give the investigator information under section 31 (Investigator may ask anyone for information) and the discloser fails to comply with the request before the end of 14 days after the day it is made.

(3) Subsection (1) also does not apply to a discloser if the discloser—

(a) divulges public interest information in the public interest disclosure or information that would allow public interest information in the disclosure to be worked out; and

(b) divulges the information other than under this Act or another Act.

For this Act, a person takes detrimental action against someone else if the person engages in conduct that involves—

(a) discriminating against the other person by treating, or proposing to treat, the other person unfavourably; or

(b) harassing or intimidating the other person; or

(c) injuring the other person; or

(d) damaging the other person’s property.

Note Victim may have action under Human Rights Commission Act

If someone takes, or threatens to take, detrimental action against someone else with the intention of either deterring someone from, or punishing someone for, making a public interest disclosure, the victim may be able to take action under the Human Rights Commission Act 2005, s 42 (1) (d) (see also Discrimination Act 1991, s 68A).

Under the Discrimination Act 1991, section 99A (2), if the discrimination tribunal is satisfied that the respondent has engaged in unlawful conduct, the tribunal must make 1 or more of the following orders:

(a) that the respondent not repeat or continue the unlawful conduct;

(b) that the respondent perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful conduct;

(c) except if the complaint has been dealt with as a representative complaint—that the respondent pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful conduct;

(d) if the complaint is about unlawful discrimination under the Discrimination Act 1991, s 68A (Detrimental action against public interest disclosers) by the respondent against a government official and the government official agrees to the order—that the government official be relocated to another position in a government entity.

(1) A person commits an offence if—

(a) the person takes detrimental action against someone else; and

(b) the person takes the action with the intention of deterring that person or another person from making a public interest disclosure.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) A person commits an offence if—

(a) the person threatens to take detrimental action against someone else; and

(b) the person makes the threat with the intention of deterring that person or another person from making a public interest disclosure.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(3) In a prosecution for an offence against this section, it is not necessary for the prosecution to prove that anyone—

(a) actually intended to make a public interest disclosure; or

(b) is actually deterred from making a public interest disclosure.

(1) A person commits an offence if—

(a) the person takes detrimental action against someone else; and

(b) the person takes the action with the intention of punishing that person or another person for making a public interest disclosure.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) A person commits an offence if—

(a) the person threatens to take detrimental action against someone else; and

(b) the person makes the threat with the intention of punishing that person or someone else for making a public interest disclosure.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(3) In a prosecution for an offence against this section, it is not necessary for the prosecution to prove that anyone—

(a) actually made a public interest disclosure; or

(b) is actually punished for making a public interest disclosure.

(1) This section applies if a person (the perpetrator) takes, or threatens to take, detrimental action against someone else (the victim) with the intention of—

(a) deterring someone from making a public interest disclosure; or

(b) punishing someone for making a public interest disclosure.

(2) The perpetrator is liable in damages to anyone who suffers detriment as a result of the perpetrator taking detrimental action, or threatening to take detrimental action, against the victim.

(3) The damages may be recovered in a proceeding as for a tort in any court of competent jurisdiction.

(4) Any remedy that may be given by a court for a tort, including exemplary damages, may be given by a court in a proceeding under this section.

(5) However, if the discrimination tribunal has ordered that the perpetrator pay a stated amount by way of compensation under the Discrimination Act 1991, section 99A (2) (c) (Decision after hearing—injunction, compensation etc) in relation to the perpetrator taking, or threatening to take, detrimental action against the victim, the court must reduce the amount of damages that it would otherwise award to the person by the amount of the compensation.

(6) For this section, it does not matter whether anyone—

(a) actually intended to make a public interest disclosure; or

(b) actually made a public interest disclosure; or

(c) is actually deterred from making a public interest disclosure; or

(d) is actually punished for making a public interest disclosure.

In this Act—

discloser identifying information—see section 59.

informant identifying information—see section 60.

information holder—see section 55.

protected information—see section 56.

public interest disclosure information—see section 58.

sensitive information—see section 57.

For this Act, a person is an information holder if the person is or has been—

(a) a contact person for a disclosure; or

(b) a supervisor for a public interest disclosure; or

(c) an investigator of a public interest disclosure; or

(d) CEO of an implicated government entity; or

(e) someone else exercising a function under this Act; or

(f) someone else engaged in the administration of this Act.

(1) For this Act, information is protected information if it is information that is disclosed to, or obtained by, an information holder because the information holder is, or has been, an information holder.

(2) Without limiting subsection (1), protected information includes sensitive information.

In this Act:

sensitive information is—

(a) public interest disclosure information; or

(b) discloser identifying information; or

(c) informant identifying information; or

(d) information prescribed by regulation for this definition.

In this Act:

public interest disclosure information means—

(a) public interest information in—

(i) a public interest disclosure; or

(ii) a record of a public interest disclosure made under section 15 (Making public interest disclosure); or

(b) information that would allow public interest information in a public interest disclosure, or a record of a public interest disclosure, to be worked out.

In this Act:

discloser identifying information means information that—

(a) identifies a discloser; or

(b) would allow the identity of a discloser to be worked out.

In this Act:

informant identifying information means information that—

(a) identifies a person who gave information to an investigator under section 31; or

(b) would allow the identity of the person to be worked out.

(1) An information holder commits an offence if the information holder—

(a) makes a record of protected information; and

(b) is reckless about whether the information is protected information.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) An information holder commits an offence if the information holder—

(a) does something that divulges protected information; and

(b) is reckless about whether—

(i) the information is protected information; and

(ii) doing the thing would result in the information being divulged to someone else.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) This section is subject to the following sections:

(a) section 62 (Exception to s 61—information given under this Act);

(b) section 63 (Exception to s 61—information given under another law);

(c) section 64 (Exception to s 61—information given with agreement);

(d) section 65 (Exception to s 61—information given to court or tribunal).

(1) Section 61 (1) does not apply to the making of a record of protected information if the record is made—

(a) under this Act; or

(b) in the exercise of a function, as an information holder, under this Act.

(2) Section 61 (2) does not apply to the divulging of protected information if the information is divulged—

(a) under this Act; or

(b) in the exercise of a function, as an information holder, under this Act.

Note Various provisions of this Act provide for information to be given to people, including:

• s 17 (Receiver must tell each implicated government entity and supervisor)

• s 30 (Investigator must tell discloser about progress)

• s 42 (Investigator must report on completed investigation).

(1) Section 61 (1) does not apply to the making of a record of protected information if—

(a) the information is not sensitive information; and

(b) the record is made—

(i) under another territory law; or

(ii) in the exercise of a function, as an information holder, under another territory law.

(2) Section 61 (2) does not apply to the divulging of protected information if—

(a) the information is not sensitive information; and

(b) the information is divulged—

(i) under another territory law; or

(ii) in the exercise of a function, as an information holder, under another territory law.

Note Other legislation may provide for information to be given to people, including the Freedom of Information Act 1989, s 10 (but see s 38).

Section 61 (2) does not apply to the divulging of protected information if the information—

(a) is not sensitive information; and

(b) is about a person; and

(c) is divulged with the person’s agreement.

(1) Section 61 (1) does not apply to the making of a record of protected information if—

(a) the record is made for a proceeding in a court or tribunal; and

(b) for discloser identifying information—the discloser agrees to the record being made for a proceeding in a court or tribunal; and

(c) for informant identifying information—the informant agrees to the record being made for a proceeding in a court or tribunal.

(2) Section 61 (2) does not apply to the divulging of protected information if—

(a) the information is divulged for a proceeding in a court or tribunal; and

(b) for discloser identifying information—the discloser agrees to the information being divulged for a proceeding in a court or tribunal; and

(c) for informant identifying information—the informant agrees to the information being divulged for a proceeding in a court or tribunal.

(1) The chief executive of the administering agency must set up and keep a register of public interest disclosures (the public interest disclosures register) for this Act.

(2) The public interest disclosures register must contain the information that the chief executive of the administering agency considers appropriate.

Note Receipt and completion of public interest disclosures must be recorded in the public interest disclosures register (see s 18 and s 41).

(1) In this section:

official means—

(a) an investigator of a public interest disclosure; or

(b) a supervisor for a public interest disclosure; or

(c) someone else who is exercising, or has exercised, a function under this Act; or

(d) someone else who is, or has been, engaged in the administration of this Act.

(2) An official, or anyone engaging in conduct under the direction of an official, is not civilly liable for conduct engaged in honestly and without recklessness—

(a) in the exercise of a function under this Act; or

(b) in the reasonable belief that the conduct was in the exercise of a function under this Act.

(3) Any liability that would, apart from this section, attach to an official attaches instead to the Territory.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

(1) Each annual report of the administering agency under the Annual Reports (Government Agencies) Act 2004 must include details of the following for the period covered by the report:

(a) the total number of public interest disclosures made;

(b) the total number of investigations carried out;

(c) the total number of investigations completed, including the total number of investigations completed under—

(i) section 38 (Completion of investigation—fully investigated); and

(ii) section 39 (Completion of investigation—investigation refused or ended); and

(iii) section 40 (Completion of investigation—police investigation);

(d) the average time taken for completed investigations;

(e) anything else prescribed by regulation for this section.

(2) However, the annual report must not include protected information.

(1) The Minister may, in writing, approve forms for this Act.

(2) If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see the Legislation Act, s 255.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

The Executive may make regulations for this Act.

Note A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) This Act applies to a public interest disclosure made after the commencement of this Act, regardless of when any conduct contrary to the public interest mentioned in the public interest disclosure is alleged to have happened.

(2) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(1) The Public Interest Disclosure Act 1994 as in force immediately before the commencement of this Act continues to apply to a public interest disclosure made before the commencement of this Act.

(2) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(1) In section 24 (b) (Investigator must refuse to investigate or end investigation):

this Act includes the Public Interest Disclosure Act 1994.

(2) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

(2) A regulation may modify this part to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act.

This part expires 5 years after the day it commences.

This Act amends the following legislation:

• Auditor-General Act 1996

• Discrimination Act 1991

• Ombudsman Act 1989

• Public Sector Management Act 1994.

The Public Interest Disclosure Act 1994 A1994-108 is repealed.

(da) the functions given to the auditor-general under the Public Interest Disclosure Act 2006;

(1) It is unlawful for a person to take, or threaten to take, detrimental action against someone else with the intention of—

(a) deterring someone from making a public interest disclosure; or

(b) punishing someone for making a public interest disclosure.

(2) For this section, it does not matter whether anyone—

(a) actually intended to make a public interest disclosure; or

(b) actually made a public interest disclosure; or

(c) is actually deterred from making a public interest disclosure; or

(d) is actually punished for making a public interest disclosure.

(3) In this section:

detrimental action—see the Public Interest Disclosure Act 2006, section 50.

Note Under the Public Interest Disclosure Act 2006, s 50, a person takes detrimental action against someone else if the person engages in conduct that involves any of the following:

• discriminating against the person by treating, or proposing to treat, the other person unfavourably

• harassing or intimidating the other person

• injuring the other person

• damaging the other person’s property.

Note But see the Public Interest Disclosure Act 2006—

• s 51 (Offence—detrimental action to deter discloser)

• s 52 (Offence—detrimental action to punish discloser).

Note But see the Public Interest Disclosure Act 2006, s 53 (Victim of detrimental action may sue for damages).

(b) the tribunal makes a decision under section 99 (Decision after hearing—dismiss complaint) or section 99A (Decision after hearing—injunction, compensation, etc).

(1) This section applies after the tribunal has heard a complaint.

(2) The tribunal must dismiss the complaint if the tribunal is satisfied that the complaint—

(a) is frivolous or vexatious; or

(b) is not made honestly; or

(c) lacks substance.

(3) If the tribunal dismisses the complaint under subsection (2) (a) or (b), the tribunal may, by written notice given to the complainant, order the complainant to pay the respondent a stated amount for the expenses reasonably incurred by the respondent in relation to the hearing.

(4) An amount mentioned in subsection (3) must be fixed in accordance with the scale of costs applying to a civil proceeding in the Magistrates Court.

(1) This section applies after the tribunal has heard a complaint.

(2) If the tribunal is satisfied that the respondent has engaged in unlawful conduct, the tribunal must make 1 or more of the following orders:

(a) that the respondent not repeat or continue the unlawful conduct;

(b) that the respondent perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful conduct;

(c) except if the complaint has been dealt with as a representative complaint—that the respondent pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful conduct;

(d) if the complaint is about unlawful discrimination under section 68A (Detrimental action against public interest disclosers) by the respondent against a government official and the government official agrees to the order—that the government official be relocated to another position in a government entity.

(3) An amount ordered to be paid to a person under subsection (2) (c) may include an amount for the expenses reasonably incurred by the person in relation to the hearing.

(4) An amount mentioned in subsection (3) must be fixed in accordance with the scale of costs applying to a civil proceeding in the Magistrates Court.

(5) However, if a court has awarded the person damages under the Public Interest Disclosure Act 2006, section 53 (Victim of detrimental action may sue for damages) in relation to the respondent taking, or threatening to take, detrimental action against the person, the tribunal must reduce the amount that it would otherwise order to be paid to a person under subsection (2) (c) in relation to the respondent taking, or threatening to take, detrimental action against the person by the amount of the damages.

(6) In this section:

government entity—see the Public Interest Disclosure Act 2006, section 9.

government official—see the Public Interest Disclosure Act 2006, section 10.

representative complaint means a complaint that is dealt with by HRC as a representative complaint under the HRC Act, section 71.

unlawful conduct means conduct that is unlawful under part 3, part 5, section 66 or part 7.

If the tribunal makes a decision under section 99 or section 99A, the tribunal must, not later than 28 days after the day it makes the decision, give the parties to the hearing written notice of the decision and the terms of any order.

section 99 (7)

section 99B

(c) to exercise the functions given to the ombudsman under the Public Interest Disclosure Act 2006; and

making a public interest disclosure under the Public Interest Disclosure Act 2006

(c) exercise the functions given to the commissioner under the Public Interest Disclosure Act 2006; and

(d) exercise any other functions given to the commissioner by this Act or another territory law.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• administrative unit

• auditor-general

• commissioner for public administration

• judge

• Minister (see s 162)

• ombudsman

• public servant

• statutory office-holder

• territory authority

• territory instrumentality

• territory law

• territory-owned corporation

• the Territory.

action report, for part 5 (Completing an investigation)—see section 47.

administering agency means the administrative unit allocated responsibility for this Act under the Public Sector Management Act 1994, section 14 (1) (b) (Ministerial responsibility and functions of administrative units).

completed, for an investigation of a public interest disclosure—see section 38, section 39 and section 40.

contact person, for a disclosure—see section 11.

CEO, of a government entity—see section 12.

detrimental action—see section 50.

discloser—see section 15.

discloser identifying information—see section 59.

discloser’s contact details, for a discloser, means details of how a receiver or investigator may contact the discloser about the public interest disclosure.

divulge includes communicate.

engage in conduct means—

(a) do an act; or

(b) omit to do an act.

entity-appointed investigator—see section 20 (2).

government entity—see section 9.

government official, for a government entity—see section 10.

informant identifying information—see section 60.

information holder—see section 55.

investigation notice—see section 33.

investigation report, for part 5 (Completing an investigation)—see section 42.

investigator, for a public interest disclosure—see section 20.

Legislative Assembly secretariat—see the Public Sector Management Act 1994, section 3.

protected information—see section 56.

public interest disclosure—see section 7.

public interest disclosure information—see section 58.

public interest disclosures register—see section 66.

public interest information—see section 8.

receiver, for a public interest disclosure—see section 7.

refusal notice—see section 26.

sensitive information—see section 57.

supervisor, for a public interest disclosure—see section 13.

supervisor-appointed investigator—see section 20 (3).

Presentation speech made in the Legislative Assembly on 2005.

Notified under the Legislation Act on 2005.

For the latest republication of amended laws, see www.legislation.act.gov.au.