PUBLIC INTEREST DISCLOSURE BILL 2013

2010-2011-2012-2013

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Public Interest Disclosure Bill 2013

No. , 2013

(Public Service and Integrity)

A Bill for an Act to facilitate disclosure and

investigation of wrongdoing and maladministration

in the Commonwealth public sector, and for other

purposes

i Public Interest Disclosure Bill 2013 No. , 2013

Contents

Part 1--Introduction

Division 1--Preliminary matters

Short title ........................................................................................... 1

Commencement ................................................................................. 2

Crown to be bound ............................................................................. 2

Extension to external Territories ........................................................ 2

Extension to things outside Australia ................................................ 3

Division 2--Objects

Objects ............................................................................................... 4

Division 3--Overview

Overview ........................................................................................... 5

Division 4--Definitions

Definitions ......................................................................................... 6

Part 2--Protection of disclosers

Division 1--Protections

Simplified outline ............................................................................ 11

Subdivision A--Immunity from liability

Protection of disclosers .................................................................... 11

Liability for false or misleading statements etc. unaffected ............. 12

Discloser's liability for own conduct not affected ........................... 12

Subdivision B--Protection from reprisals

What constitutes taking a reprisal .................................................... 12

Compensation .................................................................................. 13

Injunctions, apologies and other orders ........................................... 14

Reinstatement .................................................................................. 15

Multiple orders ................................................................................. 15

Interaction with remedies under the Fair Work Act 2009 ................ 15

Offences ........................................................................................... 16

Subdivision C--Protecting the identity of disclosers

Use or disclosure of identifying information ................................... 17

Identifying information not to be disclosed etc. to courts or

tribunals ........................................................................................... 18

Subdivision D--Miscellaneous

Interaction with protections under Part 3-1 of the Fair Work

Act 2009 ........................................................................................... 18

Claims for protection ....................................................................... 19

Public Interest Disclosure Bill 2013 No. , 2013 ii

Protections have effect despite other Commonwealth laws ............. 20

Division 2--Public interest disclosures

Simplified outline ............................................................................ 21

Subdivision A--Public interest disclosures

Meaning of public interest disclosure .............................................. 21

Associated allegations ...................................................................... 25

How a public interest disclosure may be made ................................ 25

Subdivision B--Disclosable conduct

Meaning of disclosable conduct ...................................................... 26

Officers or employees of a contracted service provider ................... 28

Disagreements with government policies etc. .................................. 29

Conduct connected with courts or tribunals ..................................... 29

Conduct connected with intelligence agencies ................................ 30

Subdivision C--Internal disclosures: authorised internal

recipients

Meaning of authorised internal recipient ........................................ 31

When conduct relates to an agency .................................................. 32

Meaning of authorised officer ......................................................... 33

Subdivision D--External disclosures: inadequate investigations

and responses to investigations

When investigations under Part 3 are inadequate ............................ 33

When responses to investigations under Part 3 are inadequate ........ 34

When responses to other disclosure investigations are

inadequate ........................................................................................ 34

Subdivision E--Miscellaneous

Meaning of designated publication restriction ................................ 35

Meaning of intelligence information ............................................... 35

Part 3--Investigations

Division 1--Allocating the handling of disclosures

Simplified outline ............................................................................ 38

Authorised officer to allocate the handling of the disclosure ........... 38

Giving notice of the allocation decision .......................................... 39

Subsequent allocations ..................................................................... 40

Division 2--The obligation to investigate disclosures

Simplified outline ............................................................................ 41

Principal officer must investigate disclosures .................................. 41

Discretion not to investigate ............................................................ 42

Investigative agency using separate investigative powers ............... 43

iii Public Interest Disclosure Bill 2013 No. , 2013

Notification to discloser ................................................................... 44

Report of investigation ..................................................................... 44

Time limit for investigations under this Division ............................ 45

Conduct of investigations under this Division ................................. 46

Adoption of findings of another investigation ................................. 47

Estimate of duration of investigation ............................................... 48

Division 3--Miscellaneous

Disclosure to a member of an Australian police force ..................... 49

Protection of witnesses etc. .............................................................. 49

Part 4--Administrative matters

Division 1--Additional obligations and functions

Simplified outline ............................................................................ 51

Additional obligations of principal officers ..................................... 51

Additional obligations of authorised officers ................................... 52

Additional obligations of public officials ........................................ 52

Additional functions of the Ombudsman ......................................... 53

Additional functions of the IGIS ...................................................... 53

Division 2--Treatment of information

Simplified outline ............................................................................ 55

Secrecy--general ............................................................................. 55

Source agencies for intelligence information ................................... 56

Secrecy--legal practitioners ............................................................ 57

Division 3--Officials and agencies

Simplified outline ............................................................................ 59

Subdivision A--Public officials

Public officials ................................................................................. 59

Individuals taken to be public officials ............................................ 63

Subdivision B--Agencies and prescribed authorities

Meaning of agency .......................................................................... 64

Meaning of prescribed authority ..................................................... 64

Subdivision C--Principal officers

Meaning of principal officer ............................................................ 66

Part 5--Miscellaneous

Ombudsman may determine standards ............................................ 68

Restriction on the application of secrecy provisions ........................ 68

Annual report ................................................................................... 69

Delegations ...................................................................................... 70

Liability for acts and omissions ....................................................... 71

Part 1 Introduction

Division 1 Preliminary matters

Section 2

2 Public Interest Disclosure Bill 2013 No. , 2013

2 Commencement

(1)

Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Crown to be bound

(1)

This Act binds the Crown in each of its capacities.

(2)

However, this Act does not make the Crown liable to a pecuniary

penalty or to be prosecuted for an offence.

4 Extension to external Territories

This Act extends to every external Territory.

Part 1 Introduction

Division 2 Objects

Section 6

4 Public Interest Disclosure Bill 2013 No. , 2013

Division 2--Objects

6 Objects

The objects of this Act are:

(a) to promote the integrity and accountability of the

Commonwealth public sector; and

(b) to encourage and facilitate the making of public interest

disclosures by public officials; and

disclosures are supported and are protected from adverse

consequences relating to the disclosures; and

(d) to ensure that disclosures by public officials are properly

investigated and dealt with.

Introduction Part 1

Overview Division 3

Section 7

Public Interest Disclosure Bill 2013 No. , 2013 5

Division 3--Overview

7 Overview

(1) This Act:

(a) provides a means for protecting public officials, and former

public officials, from adverse consequences of disclosing

information that, in the public interest, should be disclosed;

and

(b) provides for the investigation of matters that are disclosed.

Protection of disclosers

(2) Part 2 provides the following for public interest disclosures:

(a) immunity from liability;

(b) offences and civil remedies for reprisals taken against

disclosers;

Division 2 of Part 2 sets out 4 kinds of public interest disclosures.

Investigations

(3) Part 3 provides for:

(a) allocation of the handling of disclosures to appropriate

agencies; and

(b) investigation of disclosures by the principal officers of the

allocated agencies (but investigative agencies may instead

use their separate investigative powers).

Administrative matters

(4) Part 4 provides for:

(a) additional obligations and functions supporting the operation

of this Act; and

(b) offences protecting information obtained through processes

connected with this Act; and

Part 1 Introduction

Division 4 Definitions

Section 8

6 Public Interest Disclosure Bill 2013 No. , 2013

Division 4--Definitions

8 Definitions

In this Act:

agency has the meaning given by section 71.

Australia, when used in a geographical sense, includes the external

Territories.

Australian legal practitioner has the same meaning as in the

Evidence Act 1995.

Australian police force means the Australian Federal Police or the

police force of a State or Territory.

authorised internal recipient has the meaning given by section 34.

authorised officer has the meaning given by section 36.

belongs: section 69 sets out when a public official belongs to an

agency.

Cabinet information means:

(a) information contained in a document that is an exempt

document under section 34 of the Freedom of Information

Act 1982; or

(b) information the disclosure of which would involve the

disclosure of any deliberation, or decision, of the Cabinet or a

committee of the Cabinet.

chief executive officer has the meaning given by subsection 73(2).

Commonwealth company has the same meaning as in the

Commonwealth Authorities and Companies Act 1997.

Commonwealth contract has the meaning given by

subsection 30(3).

completed, in relation to an investigation under Part 3, has the

meaning given by subsection 52(2).

Introduction Part 1

Definitions Division 4

Section 8

Public Interest Disclosure Bill 2013 No. , 2013 7

contracted service provider has the meaning given by

subsection 30(2).

Defence Department means the Department administered by the

Minister administering Part III of the Defence Act 1903, and

includes:

(a) the Defence Force; and

(b) the Australian Army Cadets; and

(d) the Australian Air Force Cadets.

Department means:

(a) a Department of State (including the Defence Department),

excluding any part that is itself an Executive Agency or

Statutory Agency; or

(b) a Department of the Parliament that is established under the

Parliamentary Service Act 1999.

designated publication restriction has the meaning given by

section 40.

detriment includes the meaning given by subsection 13(2).

disclosable conduct has the meaning given by Subdivision B of

Division 2 of Part 2.

disclose includes re-disclose.

disclosure investigation means:

(a) an investigation under Part 3; or

(b) an investigation, in relation to a disclosure that is allocated

under Division 1 of Part 3, by an investigative agency under

a separate investigative power.

engage in conduct means:

(a)

do an act; or

(b)

omit to do an act.

Executive Agency has the same meaning as in the Public Service

Act 1999.

Part 1 Introduction

Division 4 Definitions

Section 8

8 Public Interest Disclosure Bill 2013 No. , 2013

Federal Circuit Court means the Federal Circuit Court of

Australia.

Federal Court means the Federal Court of Australia.

foreign country includes:

(a) a colony or overseas territory; and

(b) a territory outside Australia, where a foreign country is to any

extent responsible for the international relations of the

territory; and

self-governing, but that is not recognised as an independent

sovereign state by Australia.

foreign government means the government of a foreign country.

foreign public official has the same meaning as in Division 70 of

the Criminal Code.

identifying information has the meaning given by

paragraph 20(1)(b).

IGIS means the Inspector-General of Intelligence and Security.

inadequate, in relation to an investigation under Part 3 or a

response to a disclosure investigation, has the meaning given by

Subdivision D of Division 2 of Part 2.

information, in relation to a disclosure, includes an allegation

made in conjunction with another disclosure of information.

intelligence agency means:

(a) the Australian Secret Intelligence Service; or

(b) the Australian Security Intelligence Organisation; or

(d) the Defence Intelligence Organisation; or

(e) the Defence Signals Directorate; or

(f) the Office of National Assessments.

intelligence information has the meaning given by section 41.

internal disclosure means a public interest disclosure that:

Introduction Part 1

Definitions Division 4

Section 8

Public Interest Disclosure Bill 2013 No. , 2013 9

(a) is covered by item 1 of the table in subsection 26(1); or

(b) is an allegation made in conjunction with such a disclosure.

international organisation means an organisation:

(a) of which Australia and one or more foreign countries are

members; or

(b) that is constituted by a person or persons representing

Australia and a person or persons representing one or more

foreign countries.

investigate, in relation to a disclosure, has the meaning given by

subsections 47(2) to (4).

investigative agency means:

(a) the Ombudsman; or

(b) the IGIS; or

investigative agency for the purposes of this Act.

judicial officer has the meaning given by subsection 32(2).

legal professional privilege includes privilege under Division 1 of

Part 3.10 of the Evidence Act 1995 or under a corresponding law of

a State or Territory.

member of the staff of the chief executive officer of a court or

tribunal has the meaning given by subsection 32(3).

official of a registered industrial organisation means a person

who holds an office (within the meaning of the Fair Work Act

2009) in an organisation registered, or an association recognised,

under the Fair Work (Registered Organisations) Act 2009.

Ombudsman means the Commonwealth Ombudsman.

PID rules (short for Public Interest Disclosure Rules) means the

rules made by the Minister under section 83.

position, in relation to a public official, includes office or situation.

Part 1 Introduction

Division 4 Definitions

Section 8

10 Public Interest Disclosure Bill 2013 No. , 2013

prescribed authority has the meaning given by section 72.

principal officer, in relation to an agency, has the meaning given

by section 73.

public interest disclosure has the meaning given by Subdivision A

of Division 2 of Part 2.

public official has the meaning given by Subdivision A of

Division 3 of Part 4.

recipient, in relation to a disclosure of information, means the

person to whom the information is disclosed.

relates: section 35 sets out when conduct relates to an agency.

Royal Commission has the meaning given by the Royal

Commissions Act 1902.

sensitive law enforcement information has the meaning given by

subsection 41(2).

separate investigative power has the meaning given by

subsection 49(2).

Statutory Agency has the same meaning as in the Public Service

Act 1999.

statutory officeholder has the meaning given by subsection 69(2).

suspected disclosable conduct has the meaning given by

subparagraph 43(3)(a)(i).

takes a reprisal has the meaning given by section 13.

Protection of disclosers Part 2

Protections Division 1

Section 9

Public Interest Disclosure Bill 2013 No. , 2013 11

Part 2--Protection of disclosers

Division 1--Protections

9 Simplified outline

The following is a simplified outline of this Division:

An individual is not subject to any civil, criminal or administrative

liability for making a public interest disclosure.

It is an offence to take a reprisal, or to threaten to take a reprisal,

against a person because of a public interest disclosure (including a

proposed or a suspected public interest disclosure).

The Federal Court or Federal Circuit Court may make orders for

civil remedies (including compensation, injunctions and

reinstatement of employment) if a reprisal is taken against a person

because of a public interest disclosure (including a proposed or a

suspected public interest disclosure).

It is an offence to disclose the identity of an individual who makes

a public interest disclosure.

Note 1:

Division 2 sets out the kinds of public interest disclosures.

Note 2:

The principal officer of an agency has a duty to protect a public

official who belongs to the agency from detriment that relates to a

public interest disclosure made by the public official (see section 59).

Subdivision A--Immunity from liability

10 Protection of disclosers

(1) If an individual makes a public interest disclosure:

(a) the individual is not subject to any civil, criminal or

administrative liability (including disciplinary action) for

making the public interest disclosure; and

Part 2 Protection of disclosers

Division 1 Protections

Section 11

12 Public Interest Disclosure Bill 2013 No. , 2013

(b) no contractual or other remedy may be enforced, and no

contractual or other right may be exercised, against the

individual on the basis of the public interest disclosure.

(2) Without limiting subsection (1):

(a) the individual has absolute privilege in proceedings for

defamation in respect of the public interest disclosure; and

(b) a contract to which the individual is a party must not be

terminated on the basis that the public interest disclosure

constitutes a breach of the contract.

11 Liability for false or misleading statements etc. unaffected

(1) Section 10 does not apply to civil, criminal or administrative

liability (including disciplinary action) for making a statement that

is false or misleading.

(2) Without limiting subsection (1) of this section, section 10 does not

apply to liability for an offence against section 137.1, 137.2, 144.1

or 145.1 of the Criminal Code.

12 Discloser's liability for own conduct not affected

To avoid doubt, whether the individual's disclosure of his or her

own conduct is a public interest disclosure does not affect his or

her liability for the conduct.

Subdivision B--Protection from reprisals

13 What constitutes taking a reprisal

(1) A person (the first person) takes a reprisal against another person

(the second person) if:

(a)

the first person causes (by act or omission) any detriment to

the second person; and

(b)

when the act or omission occurs, the first person believes or

suspects that the second person or any other person made,

may have made or proposes to make a public interest

disclosure; and

Protection of disclosers Part 2

Protections Division 1

Section 14

Public Interest Disclosure Bill 2013 No. , 2013 13

the act or omission.

(2) Detriment includes any disadvantage, including (without

limitation) any of the following:

(a) dismissal of an employee;

(b) injury of an employee in his or her employment;

(d) discrimination between an employee and other employees of

the same employer.

(3) Despite subsection (1), a person does not take a reprisal against

another person to the extent that the person takes administrative

action that is reasonable to protect the other person from detriment.

14 Compensation

(1) If the Federal Court or Federal Circuit Court is satisfied, on the

application of a person (the applicant), that another person (the

respondent) took or threatened to take, or is taking or threatening

to take, a reprisal against the applicant, the Court may:

(a) in any case--make an order requiring the respondent to

compensate the applicant for loss, damage or injury as a

result of the reprisal or threat; or

(b) if the Court is satisfied that the respondent took or threatened

to take, or is taking or threatening to take, the reprisal in

connection with the respondent's position as an employee:

(i) make an order requiring the respondent to compensate

the applicant for a part of loss, damage or injury as a

result of the reprisal or threat, and make another order

requiring the respondent's employer to compensate the

applicant for a part of loss, damage or injury as a result

of the reprisal or threat; or

(ii) make an order requiring the respondent and the

respondent's employer jointly to compensate the

applicant for loss, damage or injury as a result of the

reprisal or threat; or

Part 2 Protection of disclosers

Division 1 Protections

Section 15

14 Public Interest Disclosure Bill 2013 No. , 2013

(iii) make an order requiring the respondent's employer to

compensate the applicant for loss, damage or injury as a

result of the reprisal or threat.

(2) The Federal Court or Federal Circuit Court must not make an order

under paragraph (1)(b) if the respondent's employer establishes

that it took reasonable precautions, and exercised due diligence, to

avoid the reprisal or threat.

(3) If the Federal Court or Federal Circuit Court makes an order under

subparagraph (1)(b)(ii), the respondent and the respondent's

employer are jointly and severally liable to pay the compensation

concerned.

15 Injunctions, apologies and other orders

(1) If the Federal Court or Federal Circuit Court is satisfied, on the

application of a person (the applicant), that another person (the

respondent) took or threatened to take, or is taking or threatening

to take, a reprisal against the applicant, the Court may make any or

all of the following orders:

(a) an order granting an injunction, on such terms as the Court

thinks appropriate:

(i)

restraining the respondent from taking, or threatening to

take, the reprisal; or

(ii)

if the reprisal or threat involves refusing or failing to do

something--requiring the respondent to do that thing;

(b) an order requiring the respondent to apologise to the

applicant for taking, or threatening to take, the reprisal;

(2) If the Federal Court or Federal Circuit Court has power under

subsection (1) to grant an injunction restraining a person from

engaging in particular conduct, or requiring a person to do

anything, the Court may make any other orders (including granting

an injunction) that it thinks appropriate against any other person

who has:

(a) aided, abetted, counselled or procured the conduct against the

applicant; or

Protection of disclosers Part 2

Protections Division 1

Section 16

Public Interest Disclosure Bill 2013 No. , 2013 15

(b) induced the conduct against the applicant, whether through

threats or promises or otherwise; or

in or a party to the conduct against the applicant; or

(d) conspired with others to effect the conduct against the

applicant.

16 Reinstatement

If the Federal Court or Federal Circuit Court is satisfied, on the

application of a person (the applicant), that:

(a) another person (the respondent) has taken, or is taking, a

reprisal against the applicant; and

(b) the applicant is or was employed in a particular position with

the respondent; and

respondent terminating, or purporting to terminate, the

applicant's employment;

the Court may order that the applicant be reinstated in that position

or a position at a comparable level.

17 Multiple orders

The Federal Court or Federal Circuit Court may make orders under

sections 14, 15 and 16 in respect of the same conduct.

18 Interaction with remedies under the Fair Work Act 2009

(1) A person is not entitled to make an application to the Federal Court

or Federal Circuit Court for an order under section 14, 15 or 16 of

this Act in relation to particular conduct if another application has

been made:

(a) under section 539 of the Fair Work Act 2009 in relation to a

contravention of section 340 or 772 of that Act constituted by

the same conduct; or

(b) under section 394 of the Fair Work Act 2009 in relation to

the same conduct.

(2) A person is not entitled to apply under:

Part 2 Protection of disclosers

Division 1 Protections

Section 19

16 Public Interest Disclosure Bill 2013 No. , 2013

(a) section 539 of the Fair Work Act 2009 for an order in relation

to a contravention of section 340 or 772 of that Act

constituted by particular conduct; or

(b) section 394 of the Fair Work Act 2009 for an order in relation

to particular conduct;

if another application has been made for an order under section 14,

15 or 16 of this Act in relation to the same conduct.

(3)

This section does not apply if the other application mentioned in

subsection (1) or (2) has been discontinued or has failed for want

of jurisdiction.

19 Offences

Taking a reprisal

(1)

A person commits an offence if the person takes a reprisal against

another person.

Penalty:

Imprisonment for 6 months or 30 penalty units, or both.

(2) In a prosecution for an offence against subsection (1), it is not

necessary to prove that the other person made, may have made or

intended to make a public interest disclosure.

Threatening to take a reprisal

(3)

A person (the first person) commits an offence if:

(a)

the first person makes a threat to another person (the second

person) to take a reprisal against the second person or a third

person; and

(b)

the first person:

(i)

intends the second person to fear that the threat will be

carried out; or

(ii)

is reckless as to the second person fearing that the threat

will be carried out.

Penalty:

Imprisonment for 6 months or 30 penalty units, or both.

(4)

For the purposes of subsection (3), the threat may be:

(a)

express or implied; or

Protection of disclosers Part 2

Protections Division 1

Section 20

Public Interest Disclosure Bill 2013 No. , 2013 17

(b)

conditional or unconditional.

(5)

In a prosecution for an offence under subsection (3), it is not

necessary to prove that the person threatened actually feared that

the threat would be carried out.

Subdivision C--Protecting the identity of disclosers

20 Use or disclosure of identifying information

Disclosure of identifying information

(1) A person (the first person) commits an offence if:

(a) another person (the second person) has made a public

interest disclosure; and

(b) the first person discloses information (identifying

information) that:

(i) was obtained by any person in that person's capacity as

a public official; and

(ii) is likely to enable the identification of the second person

as a person who has made a public interest disclosure;

and

(c)

the disclosure is to a person other than the second person.

Penalty:

Imprisonment for 6 months or 30 penalty units, or both.

Use of identifying information

(2) A person (the first person) commits an offence if the person uses

identifying information.

Penalty:

Imprisonment for 6 months or 30 penalty units, or both.

Exceptions

(3) Subsections (1) and (2) do not apply if one or more of the

following applies:

(a) the disclosure or use of the identifying information is for the

purposes of this Act;

Part 2 Protection of disclosers

Division 1 Protections

Section 21

18 Public Interest Disclosure Bill 2013 No. , 2013

(b) the disclosure or use of the identifying information is in

connection with the performance of a function conferred on

the Ombudsman by section 5A of the Ombudsman Act 1976;

connection with the performance of a function conferred on

the IGIS by section 8A of the Inspector-General of

Intelligence and Security Act 1986;

(d) the disclosure or use of the identifying information is for the

purposes of:

(i) a law of the Commonwealth; or

(ii) a prescribed law of a State or a Territory;

(e) the person who is the second person in relation to the

identifying information has consented to the disclosure or use

of the identifying information;

(f) the identifying information has previously been lawfully

published.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

21 Identifying information not to be disclosed etc. to courts or

tribunals

A person who is, or has been, a public official is not to be required:

(a)

to disclose to a court or tribunal identifying information that

the person has obtained; or

(b)

to produce to a court or tribunal a document containing

identifying information that the person has obtained;

except where it is necessary to do so for the purposes of giving

effect to this Act.

Subdivision D--Miscellaneous

22 Interaction with protections under Part 3-1 of the Fair Work Act

2009

Without limiting the operation of the Fair Work Act 2009, Part 3-1

of that Act applies in relation to the making of a public interest

Protection of disclosers Part 2

Protections Division 1

Section 23

Public Interest Disclosure Bill 2013 No. , 2013 19

disclosure by a public official who is an employee as if, for the

purposes of that Act:

(a) this Act were a workplace law; and

(b) making that disclosure were a process or proceeding under a

workplace law.

23 Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings)

instituted against an individual in a court, the individual makes a

claim (relevant to the proceedings) that, because of section 10, the

individual is not subject to any civil, criminal or administrative

liability for making a particular public interest disclosure:

(a) the individual bears the onus of adducing or pointing to

evidence that suggests a reasonable possibility that the claim

is made out; and

(b) if the individual discharges that onus--the party instituting

the primary proceedings against the individual bears the onus

of proving that the claim is not made out; and

and

(d) the court must adjourn the primary proceedings until the

claim has been dealt with; and

(e) none of the following:

(i) any admission made by the individual in the separate

proceedings;

(ii) any information given by the individual in the separate

proceedings;

(iii) any other evidence adduced by the individual in the

separate proceedings;

is admissible in evidence against the individual except in

proceedings in respect of the falsity of the admission,

information or evidence; and

(f) if the individual or another person gives evidence in the

separate proceedings in support of the claim--giving that

evidence does not amount to a waiver of privilege for the

purposes of the primary proceedings or any other

proceedings.

Part 2 Protection of disclosers

Division 1 Protections

Section 24

20 Public Interest Disclosure Bill 2013 No. , 2013

(2) To avoid doubt, a right under section 126H of the Evidence Act

1995 not to be compelled to give evidence is a privilege for the

purposes of paragraph (1)(f) of this section.

24 Protections have effect despite other Commonwealth laws

Section 10, 14, 15 or 16 has effect despite any other provision of a

law of the Commonwealth, unless:

(a) the provision is enacted after the commencement of this

section; and

(b) the provision is expressed to have effect despite this Part or

that section.

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 25

Public Interest Disclosure Bill 2013 No. , 2013 21

Division 2--Public interest disclosures

25 Simplified outline

The following is a simplified outline of this Division:

The protections in Division 1 apply to public interest disclosures.

Broadly speaking, a public interest disclosure is a disclosure of

information, by a public official, that is:

•

a disclosure within the government, to an authorised internal

recipient, concerning suspected or probable illegal conduct or

other wrongdoing (referred to as "disclosable conduct"); or

•

a disclosure to anybody, if an internal disclosure of the

information has not been adequately dealt with, and if wider

disclosure satisfies public interest requirements; or

•

a disclosure to anybody if there is substantial and imminent

danger to health or safety; or

•

a disclosure to an Australian legal practitioner for purposes

connected with the above matters.

However, there are limitations to take into account designated

publication restrictions and the need to protect intelligence

information.

Note 1:

Disclosable conduct, authorised internal recipient, designated

publication restriction and intelligence information are defined in

Subdivisions B, C and E.

Note 2:

Public official is defined in Subdivision A of Division 3 of Part 4.

Subdivision A--Public interest disclosures

26 Meaning of public interest disclosure

(1) A disclosure of information is a public interest disclosure if:

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 26

22 Public Interest Disclosure Bill 2013 No. , 2013

(a) the disclosure is made by a person (the discloser) who is, or

has been, a public official; and

(b) the recipient of the information is a person of the kind

referred to in column 2 of an item of the following table; and

are met:

Public interest disclosures

Item

Column 1

Type of

disclosure

Column 2

Recipient

Column 3

Further requirements

Internal

disclosure

An authorised

internal

recipient

(a) The discloser believes on reasonable

grounds that the information may

concern one or more instances of

disclosable conduct.

(b) The disclosure is not contrary to a

designated publication restriction.

External

disclosure

Any person

other than a

foreign public

official

(a) The discloser believes on reasonable

grounds that the information may

concern one or more instances of

disclosable conduct.

(b) On a previous occasion, the discloser

made an internal disclosure of

information that consisted of, or

included, the information now

disclosed.

(i) a disclosure investigation

relating to the internal disclosure

has been completed;

(ii) this Act requires an

investigation to be conducted

under Part 3, and that

investigation has not been

completed within the time limit

under section 52.

(d) Either or both of the following applies:

(i) if the disclosure investigation

was an investigation under

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 26

Public Interest Disclosure Bill 2013 No. , 2013 23

Public interest disclosures

Item

Column 1

Type of

disclosure

Column 2

Recipient

Column 3

Further requirements

Part 3--the investigation was

inadequate;

(ii) in any case--the response to the

investigation was inadequate.

(e) The disclosure is not, on balance,

contrary to the public interest.

(f) No more information is publicly

disclosed than is reasonably necessary

in the public interest.

(g) The disclosure is not contrary to a

designated publication restriction.

(h) The information does not consist of, or

include, intelligence information.

(i) None of the conduct with which the

disclosure is concerned relates to an

intelligence agency.

Emergency

disclosure

Any person

other than a

foreign public

official

(a) The discloser believes on reasonable

grounds that the information concerns a

substantial and imminent danger to the

health or safety of one or more persons.

(b) The extent of the information disclosed

is no greater than is necessary to alert

the recipient to the substantial and

imminent danger.

an internal disclosure of the same

information, there are exceptional

circumstances justifying the discloser's

failure to make such an internal

disclosure.

(d) If the discloser has previously made an

internal disclosure of the same

information, there are exceptional

circumstances justifying this disclosure

being made before a disclosure

investigation of the internal disclosure

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 26

24 Public Interest Disclosure Bill 2013 No. , 2013

Public interest disclosures

Item

Column 1

Type of

disclosure

Column 2

Recipient

Column 3

Further requirements

is completed.

(e) The disclosure is not contrary to a

designated publication restriction.

(f) The information does not consist of, or

include, intelligence information.

Legal

practitioner

disclosure

An Australian

legal

practitioner

(a) The disclosure is made for the purpose

of obtaining legal advice, or

professional assistance, from the

recipient in relation to the discloser

having made, or proposing to make, a

public interest disclosure.

(b) If the discloser knew, or ought

reasonably to have known, that any of

the information has a national security

or other protective security

classification, the recipient holds the

appropriate level of security clearance.

include, intelligence information.

(2) However, a disclosure made before the commencement of this

section is not a public interest disclosure.

(3)

In determining, for the purposes of item 2 of the table in

subsection (1), whether a disclosure is not, on balance, contrary to

the public interest, regard must be had to the following:

(a)

any risk that the disclosure could cause damage to any of the

following:

(i)

the security of the Commonwealth;

(ii)

the defence of the Commonwealth;

(iii)

the international relations of the Commonwealth;

(iv)

the relations between the Commonwealth and a State;

(v)

the relations between the Commonwealth and the

Australian Capital Territory;

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 27

Public Interest Disclosure Bill 2013 No. , 2013 25

(vi)

the relations between the Commonwealth and the

Northern Territory;

(vii)

the relations between the Commonwealth and Norfolk

Island;

(b)

if any of the information disclosed in the disclosure is

Cabinet information--the principle that Cabinet information

should remain confidential unless it is already lawfully

publicly available;

(c)

if any of the information disclosed in the disclosure was

communicated in confidence by or on behalf of:

(i)

a foreign government; or

(ii)

an authority of a foreign government; or

(iii)

an international organisation;

the principle that such information should remain

confidential unless that government, authority or

organisation, as the case may be, consents to the disclosure of

the information;

(d) any risk that the disclosure could prejudice the proper

administration of justice;

(e) the principle that legal professional privilege should be

maintained;

(f)

any other relevant matters.

27 Associated allegations

An allegation is a public interest disclosure if:

(a) it is made by a person who makes a disclosure of information

that is a public interest disclosure under section 26; and

(b) it is made to the recipient of that disclosure in conjunction

with that disclosure; and

concerns one or more instances of disclosable conduct.

28 How a public interest disclosure may be made

(1) A public interest disclosure may be made orally or in writing.

(2) A public interest disclosure may be made anonymously.

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 29

26 Public Interest Disclosure Bill 2013 No. , 2013

(3) A public interest disclosure may be made without the discloser

asserting that the disclosure is made for the purposes of this Act.

Subdivision B--Disclosable conduct

29 Meaning of disclosable conduct

(1) Disclosable conduct is conduct of a kind mentioned in the

following table that is conduct:

(a) engaged in by an agency; or

(b) engaged in by a public official, in connection with his or her

position as a public official; or

Commonwealth contract, in connection with entering into, or

giving effect to, that contract:

Disclosable conduct

Item

Kinds of disclosable conduct

Conduct that contravenes a law of the Commonwealth, a State or a

Territory.

Conduct, in a foreign country, that contravenes a law that:

(a) is in force in the foreign country; and

(b) is applicable to the agency, public official or contracted service provider;

and

Conduct that:

(a) perverts, or is engaged in for the purpose of perverting, or attempting to

pervert, the course of justice; or

(b) involves, or is engaged in for the purpose of, corruption of any other

kind.

Conduct that constitutes maladministration, including conduct that:

(a) is based, in whole or in part, on improper motives; or

(b) is unreasonable, unjust or oppressive; or

Conduct that is an abuse of public trust.

Conduct that is:

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 29

Public Interest Disclosure Bill 2013 No. , 2013 27

Disclosable conduct

Item

Kinds of disclosable conduct

(a) fabrication, falsification, plagiarism, or deception, in relation to:

(i) proposing scientific research; or

(ii) carrying out scientific research; or

(iii) reporting the results of scientific research; or

(b) misconduct relating to scientific analysis, scientific evaluation or the

giving of scientific advice.

Conduct that results in the wastage of:

(a) public money (within the meaning of the Financial Management and

Accountability Act 1997); or

(b) public property (within the meaning of that Act); or

(d) property of a prescribed authority.

Conduct that:

(a) unreasonably results in a danger to the health or safety of one or more

persons; or

(b) unreasonably results in, or increases, a risk of danger to the health or

safety of one or more persons.

Conduct that:

(a) results in a danger to the environment; or

(b) results in, or increases, a risk of danger to the environment.

Conduct of a kind prescribed by the PID rules.

(2) Without limiting subsection (1), the following are also disclosable

conduct:

(a) conduct engaged in by a public official that involves, or is

engaged in for the purpose of, the public official abusing his

or her position as a public official;

(b) conduct engaged in by a public official that could, if proved,

give reasonable grounds for disciplinary action against the

public official.

(3) For the purposes of this section, it is immaterial:

(a) whether conduct occurred before or after the commencement

of this section; or

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 30

28 Public Interest Disclosure Bill 2013 No. , 2013

(b) if an agency has engaged in conduct--whether the agency

has ceased to exist after the conduct occurred; or

public official has ceased to be a public official after the

conduct occurred; or

(d) if a contracted service provider has engaged in conduct--

whether the contracted service provider has ceased to be a

contracted service provider after the conduct occurred.

30 Officers or employees of a contracted service provider

(1) For the purposes of this Act, if an individual is a public official

because the individual:

(a) is an officer or employee of a contracted service provider for

a Commonwealth contract; and

(b) provides services for the purposes (whether direct or indirect)

of the Commonwealth contract;

the individual does not engage in conduct in connection with his or

her position as such a public official unless the conduct is in

connection with entering into, or giving effect to, the contract.

(2) A contracted service provider for a Commonwealth contract is:

(a) a person who:

(i) is a party to the Commonwealth contract; and

(ii) is responsible for the provision of goods or services

under the Commonwealth contract; or

(b) a person who:

(i) is a party to a contract (the subcontract) with a person

who is a contracted service provider for the

Commonwealth contract under paragraph (a) (or under a

previous application of this paragraph); or

(ii) who is responsible under the subcontract for the

provision of goods or services for the purposes (whether

direct or indirect) of the Commonwealth contract.

(3) A Commonwealth contract is a contract:

(a) to which the Commonwealth or a prescribed authority is a

party; and

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 31

Public Interest Disclosure Bill 2013 No. , 2013 29

(b) under which goods or services are to be, or were to be,

provided:

(i) to the Commonwealth or a prescribed authority; or

(ii) for or on behalf of the Commonwealth or a prescribed

authority, and in connection with the performance of its

functions or the exercise of its powers.

31 Disagreements with government policies etc.

To avoid doubt, conduct is not disclosable conduct if it relates only

to:

(a) a policy or proposed policy of the Commonwealth

Government; or

(b) action that has been, is being, or is proposed to be, taken by:

(i) a Minister; or

(ii) the Speaker of the House of Representatives; or

(iii) the President of the Senate; or

expenditure relating to such a policy or proposed policy, or

such action or proposed action;

with which a person disagrees.

32 Conduct connected with courts or tribunals

(1) Despite section 29, conduct is not disclosable conduct if it is:

(a) conduct of a judicial officer; or

(b) conduct of:

(i) the chief executive officer of a court; or

(ii) a member of the staff of the chief executive officer of a

court;

when exercising a power of the court, performing a function

of a judicial nature or exercising a power of a judicial nature;

(i) a member of a tribunal; or

(ii) the chief executive officer of a tribunal; or

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 33

30 Public Interest Disclosure Bill 2013 No. , 2013

(iii) a member of the staff of the chief executive officer of a

tribunal;

when exercising a power of the tribunal; or

(d) any other conduct of, or relating to, a court or tribunal, unless

the conduct:

(i) is of an administrative nature; and

(ii) does not relate to the management or hearing of matters

before the court or tribunal.

(2) Judicial officer means:

(a) a Justice of the High Court; or

(b)

a Judge or Justice of a court created by the Parliament; or

Territory.

(3) Member of the staff of the chief executive officer of a court or

tribunal means:

(a) an officer of the court or tribunal (other than the chief

executive officer); or

(b) a member of the staff of the registry or registries of the court

or tribunal; or

available to the court or tribunal; or

(d) a person prescribed by the PID rules to be a member of the

staff of the court or tribunal for the purposes of this Act.

For this purpose, a judicial officer of the court, or a member of the

tribunal, is not taken to be an officer of the court or tribunal.

Note:

For declaration by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

33 Conduct connected with intelligence agencies

Despite section 29, conduct is not disclosable conduct if it is:

(a) conduct that an intelligence agency engages in in the proper

performance of its functions or the proper exercise of its

powers; or

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 34

Public Interest Disclosure Bill 2013 No. , 2013 31

(b) conduct that a public official who belongs to an intelligence

agency engages in for the purposes of the proper performance

of its functions or the proper exercise of its powers.

Subdivision C--Internal disclosures: authorised internal

recipients

34 Meaning of authorised internal recipient

The following table sets out who is an authorised internal

recipient of a disclosure of information that the discloser believes

on reasonable grounds may concern one or more instances of

disclosable conduct:

Authorised internal recipients

Item

Column 1

If the conduct with

which the disclosure is

concerned relates to:

Column 2

An authorised officer of any of the following

agencies is an authorised internal recipient of

the disclosure:

an agency (other than an

intelligence agency, the

Ombudsman or the IGIS)

(a) in any case--that agency;

(b) the agency to which the discloser belongs, or

last belonged;

grounds that it would be appropriate for the

disclosure to be investigated by the

Ombudsman--the Ombudsman;

(d) if an investigative agency (other than the

Ombudsman or the IGIS) has the power to

investigate the disclosure otherwise than

under this Act--the investigative agency.

an intelligence agency

(a) in any case--the intelligence agency;

(b) if the discloser believes on reasonable

grounds that it would be appropriate for the

disclosure to be investigated by the IGIS--

the IGIS;

information, and an investigative agency

(other than the Ombudsman or the IGIS) has

the power to investigate the disclosure

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 35

32 Public Interest Disclosure Bill 2013 No. , 2013

Authorised internal recipients

Item

Column 1

If the conduct with

which the disclosure is

concerned relates to:

Column 2

An authorised officer of any of the following

agencies is an authorised internal recipient of

the disclosure:

otherwise than under this Act--the

investigative agency.

the Ombudsman

the Ombudsman.

the IGIS

the IGIS.

Note:

For authorised officer, see section 36.

35 When conduct relates to an agency

(1) Conduct relates to an agency if the agency, or a public official

belonging to the agency at the time of the conduct, engages in the

conduct.

(2) Despite subsection (1), if:

(a) an agency (the subsidiary agency) is established by or under

a law of the Commonwealth for the purpose of assisting, or

performing functions connected with, another agency (the

parent agency); and

(b) the subsidiary agency is an unincorporated body that is a

board, council, committee, sub-committee or other body;

conduct that would, apart from this subsection, relate to the

subsidiary agency is instead taken, for the purposes of this Act, to

relate to the parent agency.

(3) Despite subsections (1) and (2), if an agency ceases to exist,

conduct that occurred before the cessation and that would, apart

from this subsection, relate to the agency is instead taken, for the

purposes of this Act, to relate to another agency if:

(a) the other agency acquired all of the functions of the agency

that ceased to exist; or

(b) the other agency acquired some of those functions, and the

conduct most closely relates to the functions the other agency

acquired; or

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 36

Public Interest Disclosure Bill 2013 No. , 2013 33

other agency replaces the agency that ceased to exist.

It is immaterial whether the cessation occurred before or after the

commencement of this section.

36 Meaning of authorised officer

An authorised officer, of an agency, is:

(a)

the principal officer of the agency; or

(b)

a public official who:

(i)

belongs to the agency; and

(ii)

is appointed, in writing, by the principal officer of the

agency as an authorised officer for the purposes of this

Act.

Subdivision D--External disclosures: inadequate investigations

and responses to investigations

37 When investigations under Part 3 are inadequate

An investigation under Part 3 is inadequate if and only if:

(a) the investigation has not been completed within the time limit

under section 52; or

(b) there has been a failure to obtain, in the course of conducting

the investigation, information that is reasonably available,

relevant and materially significant; or

that no reasonable person could have reached them on the

basis of the information obtained in the course of conducting

the investigation; or

(d) the report of the investigation does not set out findings or

recommendations that could reasonably be expected to have

been made on the basis of the information obtained in the

course of conducting the investigation.

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 38

34 Public Interest Disclosure Bill 2013 No. , 2013

38 When responses to investigations under Part 3 are inadequate

(1) A response to an investigation under Part 3 is inadequate if and

only if:

(a) the report of the investigation sets out recommendations that

action be taken; and

(b) a reasonable period has passed since the preparation of the

report; and

(i)

no reasonable person would consider that the action that

has been, is being, or is to be, taken in response to the

recommendations is adequate; or

(ii)

no action has been, is being, or is to be, taken in

response to the recommendations.

(2) However, a response to an investigation under Part 3 is taken, for

the purposes of this Act, not to be inadequate to the extent that the

response involves action that has been, is being, or is to be taken

by:

(a) a Minister; or

(b) the Speaker of the House of Representatives; or

39 When responses to other disclosure investigations are inadequate

(1) A response to a disclosure investigation that is not an investigation

under Part 3 is inadequate if and only if no reasonable person

would consider that the action that has been, is being, or is to be,

taken in response to the investigation is adequate.

(2) However, a response to such an investigation is taken, for the

purposes of this Act, not to be inadequate to the extent that the

response involves action that has been, is being, or is to be taken

by:

(a) a Minister; or

(b) the Speaker of the House of Representatives; or

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 40

Public Interest Disclosure Bill 2013 No. , 2013 35

Subdivision E--Miscellaneous

40 Meaning of designated publication restriction

Each of the following is a designated publication restriction:

(a) section 121 of the Family Law Act 1975;

(b) section 91X of the Migration Act 1958;

Collection) Act 1988;

(d) a non-publication order (within the meaning of Part XAA of

the Judiciary Act 1903) of any court;

(e) a suppression order (within the meaning of Part XAA of the

Judiciary Act 1903) of any court;

(f) an order under section 31 or 38L of the National Security

Information (Criminal and Civil Proceedings) Act 2004;

(g) an order under section 28 of the Witness Protection Act 1994;

(h) an order under subsection 35(2) of the Administrative

Appeals Tribunal Act 1975;

(i) a direction under section 35AA of the Administrative Appeals

Tribunal Act 1975;

(j) a direction under subsection 25A(9) of the Australian Crime

Commission Act 2002;

(k) section 29B of the Australian Crime Commission Act 2002;

(l) a direction under section 90 of the Law Enforcement Integrity

Commissioner Act 2006;

(m) section 92 of the Law Enforcement Integrity Commissioner

Act 2006.

41 Meaning of intelligence information

(1) Each of the following is intelligence information:

(a)

information that has originated with, or has been received

from, an intelligence agency;

(b)

information that is about, or that might reveal:

(i)

a source of information referred to in paragraph (a); or

(ii)

the technologies or methods used, proposed to be used,

or being developed for use, by an intelligence agency to

Part 2 Protection of disclosers

Division 2 Public interest disclosures

Section 41

36 Public Interest Disclosure Bill 2013 No. , 2013

collect, analyse, secure or otherwise deal with,

information referred to in paragraph (a); or

(iii)

operations that have been, are being, or are proposed to

be, undertaken by an intelligence agency;

(c)

information:

(i)

that

has been received by a public official from an

authority of a foreign government, being an authority

that has functions similar to the functions of an

intelligence agency; and

(ii)

that is about, or that might reveal, a matter

communicated by that authority in confidence;

(d)

information that has originated with, or has been received

from, the Defence Department and that is about, or that might

reveal:

(i)

the collection, reporting, or analysis of operational

intelligence; or

(ii)

a program under which a foreign government provides

restricted access to technology;

(e)

information that includes a summary of, or an extract from,

information referred to in paragraph (a), (b), (c) or (d);

(f)

information:

(i)

that

identifies a person as being, or having been, an

agent or member of the staff (however described) of the

Australian Secret Intelligence Service or the Australian

Security Intelligence Organisation (other than a person

referred to in subsection (3)); or

(ii)

from which the identity of a person who is, or has been,

such an agent or member of staff (however described)

could reasonably be inferred; or

(iii) that could reasonably lead to the identity of such an

agent or member of staff (however described) being

established;

(g) sensitive law enforcement information.

(2) Sensitive law enforcement information means information the

disclosure of which is reasonably likely to prejudice Australia's

law enforcement interests, including Australia's interests in the

following:

Protection of disclosers Part 2

Public interest disclosures Division 2

Section 41

Public Interest Disclosure Bill 2013 No. , 2013 37

(a) avoiding disruption to national and international efforts

relating to law enforcement, criminal intelligence, criminal

investigation, foreign intelligence, security intelligence or the

integrity of law enforcement agencies;

(b) protecting the technologies and methods used to collect,

analyse, secure or otherwise deal with, criminal intelligence,

foreign intelligence, security intelligence or intelligence

relating to the integrity of law enforcement agencies;

(i) informants or witnesses, or persons associated with

informants or witnesses; or

(ii) persons involved in the protection and safety of

informants or witnesses;

(d) ensuring that intelligence and law enforcement agencies are

not discouraged from giving information to a nation's

government and government agencies.

(3) Paragraph (1)(f) does not apply to:

(a) the Director-General of ASIS, or a person who has been

determined by the Director-General of ASIS under this

paragraph; or

(b) the Director-General of Security, or a person who has been

determined by the Director-General of Security under this

paragraph.

Part 3 Investigations

Division 1 Allocating the handling of disclosures

Section 42

38 Public Interest Disclosure Bill 2013 No. , 2013

Part 3--Investigations

Division 1--Allocating the handling of disclosures

42 Simplified outline

The following is a simplified outline of this Division:

If a disclosure is made to an authorised officer of an agency, he or

she allocates the handling of the disclosure to one or more

agencies.

Note:

In order for a disclosure to be an internal disclosure (one of the types

of public interest disclosure), the disclosure must be made to an

authorised officer.

43 Authorised officer to allocate the handling of the disclosure

(1) If a person (the discloser) discloses information to an authorised

officer of an agency (the recipient agency), the authorised officer

must allocate the handling of the disclosure to one or more

agencies (which may be or include the recipient agency).

Note:

For the assistance that authorised officers must give to disclosers, see

section 60.

(2) However, subsection (1) does not apply if the authorised officer is

satisfied, on reasonable grounds, that there is no reasonable basis

on which the disclosure could be considered to be an internal

disclosure.

Note:

The requirements for an internal disclosure are set out in item 1 of the

table in subsection 26(1).

(3) In deciding the allocation, the authorised officer must have regard

to:

(a) the principle that an agency should not handle the disclosure

unless any of the following apply:

(i) in any case--some or all of the disclosable conduct with

which the information may be concerned (suspected

disclosable conduct) relates to the agency;

Investigations Part 3

Allocating the handling of disclosures Division 1

Section 44

Public Interest Disclosure Bill 2013 No. , 2013 39

(ii) if the agency is the Ombudsman--some or all of the

suspected disclosable conduct relates to an agency other

than an intelligence agency or the IGIS;

(iii) if the agency is the IGIS--some or all of the suspected

disclosable conduct relates to an intelligence agency;

(iv) if the agency is an investigative agency (other than the

Ombudsman or the IGIS)--the investigative agency has

power to investigate the disclosure otherwise than under

this Act; and

(b) such other matters (if any) as the authorised officer considers

relevant.

(4) For the purposes of deciding the allocation, the authorised officer

may obtain information from such persons, and make such

inquiries, as the authorised officer thinks fit.

(5) The authorised officer must use his or her best endeavours to

decide the allocation within 14 days after the disclosure is made to

the authorised officer.

(6) The authorised officer must not allocate the disclosure to an agency

(other than the recipient agency) unless an authorised officer of

that agency has consented to the allocation.

44 Giving notice of the allocation decision

(1) The authorised officer must inform the principal officer of each

agency to which the handling of the disclosure is allocated of:

(a) the allocation to the agency; and

(b) the information that was disclosed; and

(d) if the discloser's name and contact details are known to the

authorised officer--the discloser's name and contact details.

(2) The authorised officer must inform the discloser of the allocation if

the discloser is readily contactable.

(3)

If, because of subsection 43(2), the authorised officer does not

allocate the disclosure, the authorised officer must, if the discloser

is readily contactable, inform the discloser of:

Part 3 Investigations

Division 1 Allocating the handling of disclosures

Section 45

40 Public Interest Disclosure Bill 2013 No. , 2013

(a) the reasons why the disclosure has not been allocated to an

agency; and

(b) any other courses of action that might be available to the

discloser under other laws of the Commonwealth.

45 Subsequent allocations

(1) The authorised officer may, after making a decision under

section 43 or this section (the original decision) allocating the

handling of the disclosure to one or more agencies, decide to

allocate the handling of the disclosure to one or more other

agencies.

(2) Subsections 43(3) to (6) and section 44 apply in relation to a

decision under this section in the same way that they apply in

relation to the original decision.

Investigations Part 3

The obligation to investigate disclosures Division 2

Section 46

Public Interest Disclosure Bill 2013 No. , 2013 41

Division 2--The obligation to investigate disclosures

46 Simplified outline

The following is a simplified outline of this Division:

The principal officer of the allocated agency must investigate the

disclosure, and prepare a report, within a set time and in

accordance with the requirements of this Division.

The principal officer may decide not to investigate in particular

circumstances in which an investigation is unjustified, or if the

agency is an investigative agency that can investigate without

using this Act.

47 Principal officer must investigate disclosures

(1) The principal officer of an agency must investigate a disclosure if

the handling of the disclosure is allocated to the agency under

Division 1.

(2) Investigate, in relation to a disclosure, means investigate (or

reinvestigate) whether there are one or more instances of

disclosable conduct. The disclosable conduct may relate to:

(a) the information that is disclosed; or

(b) information obtained in the course of the investigation.

(3) For the purposes of subsection (2), an investigation (or

reinvestigation) may include consideration of whether a different

investigation (or reinvestigation) should be conducted:

(a) by the agency; or

(b) by another body;

under another law of the Commonwealth.

(4)

For the purposes of subsection (3), procedures established under a

law of the Commonwealth (other than this Act) are taken to be a

law of the Commonwealth.

Part 3 Investigations

Division 2 The obligation to investigate disclosures

Section 48

42 Public Interest Disclosure Bill 2013 No. , 2013

48 Discretion not to investigate

(1) Despite section 47, the principal officer of the agency may decide

not to investigate the disclosure, or (if the investigation has started)

not to investigate the disclosure further, if:

(a) the discloser is not, and has not been, a public official; or

(b) the information that is disclosed does not tend to show any

instance of disclosable conduct; or

disclosable conduct; or

(d) the disclosure is frivolous, vexatious, misconceived or

lacking in substance; or

(e) the information is the same, or substantially the same, as

information the disclosure of which has been, or is being,

investigated as a disclosure investigation; or

(f) the information concerns disclosable conduct that is the

same, or substantially the same, as disclosable conduct that is

being investigated under:

(i)

a law of the Commonwealth other than this Act; or

(ii)

the executive power of the Commonwealth;

and it would be inappropriate to conduct another

investigation at the same time; or

(g) the information concerns disclosable conduct that is the

same, or substantially the same, as disclosable conduct that

has been investigated under:

(i)

a law of the Commonwealth other than this Act; or

(ii)

the executive power of the Commonwealth;

and the principal officer is reasonably satisfied that there are

no further matters concerning the disclosure that warrant

investigation; or

(h) the discloser has informed the principal officer of an agency

that the discloser does not wish the investigation of the

internal disclosure to be pursued, and the principal officer is

reasonably satisfied that there are no matters concerning the

disclosure that warrant investigation; or

(i) it is impracticable for the disclosure to be investigated:

(i) because the discloser has not disclosed his or her name

and contact details; or

Investigations Part 3

The obligation to investigate disclosures Division 2

Section 49

Public Interest Disclosure Bill 2013 No. , 2013 43

(ii) because the discloser refuses or fails, or is unable, to

give, for the purposes of the investigation, such

information or assistance as the person who is or will be

conducting the investigation asks the discloser to give;

(iii) because of the age of the information.

(2) If the principal officer decides not to investigate the disclosure, or

not to investigate it further, this Act does not, by implication,

prevent the information from being investigated otherwise than

under this Act.

(3)

For the purposes of subparagraph (1)(f)(i) or (g)(i), procedures

established under a law of the Commonwealth (other than this Act)

are taken to be a law of the Commonwealth.

49 Investigative agency using separate investigative powers

(1) Despite section 47, if the agency is an investigative agency that has

a separate investigative power in relation to the disclosure, the

principal officer of the agency may decide:

(a) to investigate the disclosure under that separate investigative

power; and

(b) not to investigate the disclosure, or (if the investigation has

started) not to investigate the disclosure further, under this

Act.

(2) A separate investigative power, in relation to the disclosure, is a

power that an investigative agency has, otherwise than under this

Act, to investigate the disclosure.

Note 1:

Under the Ombudsman Act 1976, the Ombudsman has power to

investigate a disclosure allocated to the Ombudsman.

Note 2:

Under the Inspector-General of Intelligence and Security Act 1986,

the IGIS has power to investigate a disclosure allocated to the IGIS.

(3) On completing its investigation of the disclosure under its separate

investigative power, the investigative agency must inform:

(a) the principal officers of each of the agencies to which any of

the suspected disclosable conduct relates; and

(b) if the discloser is readily contactable--the discloser;

Part 3 Investigations

Division 2 The obligation to investigate disclosures

Section 50

44 Public Interest Disclosure Bill 2013 No. , 2013

that the investigation is complete.

50 Notification to discloser

(1)

If the discloser is readily contactable, the principal officer of the

agency must inform the discloser of the following (whichever is

applicable):

(a) that the principal officer is required to investigate the

disclosure;

(b) that the principal officer has decided under section 48 or 49

not to investigate the disclosure under this Division, or not to

investigate the disclosure further.

(2) If paragraph (1)(b) applies, the principal officer must inform the

discloser of:

(a) the reasons for the decision; and

(b) other courses of action that might be available to the

discloser under other laws of the Commonwealth.

(3) Despite paragraph (2)(a), the principal officer may delete from the

reasons given to the discloser any reasons that would, if contained

in a document, cause the document:

(a) to be exempt for the purposes of Part IV of the Freedom of

Information Act 1982; or

(b) to have, or be required to have, a national security or other

protective security classification; or

(4) The discloser may be informed of a matter under this section in the

same document as the discloser is informed of a matter under

subsection 44(2).

51 Report of investigation

(1) On completing an investigation under this Division, the principal

officer of the agency must prepare a report of the investigation.

(2)

The report must set out:

(a)

the matters considered in the course of the investigation; and

(b)

the duration of the investigation; and

Investigations Part 3

The obligation to investigate disclosures Division 2

Section 52

Public Interest Disclosure Bill 2013 No. , 2013 45

(c)

the principal officer's findings (if any); and

(d)

the action (if any) that has been, is being, or is recommended

to be, taken; and

(e) any claims made about, and any evidence of, detrimental

action taken against the discloser, and the agency's response

to those claims and that evidence.

Note 1:

For the purposes of paragraph (d), the report might include, for

example, a recommendation that an investigation be conducted, under

procedures established under subsection 15(3) of the Public Service

Act 1999, into whether an APS employee has breached the Code of

Conduct under that Act.

Note 2:

See also section 54 (adoption of findings of another investigation).

(3) In preparing the report, the principal officer must comply with any

standards in force under section 74.

(4)

If the discloser is readily contactable, the principal officer must,

within a reasonable time after preparing the report, give a copy of

the report under subsection (2) to the discloser.

(5) However, the principal officer may delete from the copy given to

the discloser any material:

(a) that is likely to enable the identification of the discloser or

another person; or

(b) the inclusion of which would:

(i) result in the copy being a document that is exempt for

the purposes of Part IV of the Freedom of Information

Act 1982; or

(ii) result in the copy being a document having, or being

required to have, a national security or other protective

security classification; or

(iii) result in the copy containing intelligence information.

52 Time limit for investigations under this Division

(1) An investigation under this Division must be completed within 90

days after the relevant disclosure was allocated to the agency

concerned.

Part 3 Investigations

Division 2 The obligation to investigate disclosures

Section 53

46 Public Interest Disclosure Bill 2013 No. , 2013

(2) The investigation is completed when the principal officer has

prepared the report of the investigation.

(3) If the agency is not the IGIS or an intelligence agency, the

Ombudsman may extend, or further extend, the 90-day period by

such additional period (which may exceed 90 days) as the

Ombudsman considers appropriate:

(a) on the Ombudsman's own initiative; or

(b) if the agency is not the Ombudsman--on application made

by the principal officer of the agency; or

(4) If the agency is the IGIS or an intelligence agency, the IGIS may

extend, or further extend, the 90-day period by such additional

period (which may exceed 90 days) as the IGIS considers

appropriate:

(a) on the IGIS's own initiative; or

(b) if the agency is not the IGIS--on application made by the

principal officer of the agency; or

(5)

If the 90-day period is extended, or further extended, the

Ombudsman or the IGIS, as the case may be, must inform the

discloser of the extension or further extension if the discloser is

readily contactable.

(6) Failure to complete the investigation within the time limit under

this section does not affect the validity of the investigation.

53 Conduct of investigations under this Division

(1)

An investigation under this Division by the principal officer of an

agency is to be conducted as the person thinks fit.

(2)

The principal officer may, for the purposes of the investigation,

obtain information from such persons, and make such inquiries, as

the principal officer thinks fit.

(3) Despite subsections (1) and (2), in conducting the investigation, the

principal officer must comply with any standards in force under

section 74.

Investigations Part 3

The obligation to investigate disclosures Division 2

Section 54

Public Interest Disclosure Bill 2013 No. , 2013 47

(4) Despite subsections (1) and (2), the principal officer must act in

accordance with the Commonwealth Fraud Control Guidelines in

force under regulations made for the purposes of section 64 of the

Financial Management and Accountability Act 1997, to the extent

that:

(a) the investigation relates to one or more instances of fraud

against the Commonwealth (within the meaning of those

Guidelines); and

(b) those Guidelines are not inconsistent with this Act (apart

from subsections (1) and (2)).

(5) Despite subsections (1) and (2):

(a) to the extent that the investigation relates to an alleged breach

of the Code of Conduct (within the meaning of the

Parliamentary Service Act 1999), the principal officer must

comply with the procedures established under

subsection 15(3) of that Act; and

(b) to the extent that the investigation relates to an alleged breach

of the Code of Conduct (within the meaning of the Public

Service Act 1999), the principal officer must comply with the

procedures established under subsection 15(3) of that Act.

54 Adoption of findings of another investigation

(1) The principal officer conducting an investigation under this

Division may, for the purposes of the investigation, adopt a finding

set out in the report of:

(a) an investigation or inquiry under:

(i)

a law of the Commonwealth other than this Act; or

(ii)

the executive power of the Commonwealth; or

(b) another investigation under this Part;

conducted by the principal officer or any other person.

(2)

For the purposes of subparagraph (1)(a)(i), procedures established

under a law of the Commonwealth (other than this Act) are taken

to be a law of the Commonwealth.

Investigations Part 3

Miscellaneous Division 3

Section 56

Public Interest Disclosure Bill 2013 No. , 2013 49

Division 3--Miscellaneous

56 Disclosure to a member of an Australian police force

(1) If, in the course of a disclosure investigation relating to a

disclosure, the person conducting the investigation suspects on

reasonable grounds that some or all of:

(a) the information disclosed, or

(b) any other information obtained in the course of the

investigation;

is evidence of the commission of an offence against a law of the

Commonwealth, a State or a Territory, the person may disclose the

information, to the extent that it is such evidence, to a member of

an Australian police force that is responsible for the investigation

of the offence.

(2) However, if the offence is punishable by imprisonment for life or

by imprisonment for a period of at least 2 years, the person must so

notify such a member.

(3) This section does not, by implication, limit a person's power to

notify a matter to a member of an Australian police force.

57 Protection of witnesses etc.

(1) A person is not subject to any criminal or civil liability because the

person (voluntarily or otherwise) gives information, produces a

document or answers a question if:

(a) the person does so when requested to do so by a person

conducting a disclosure investigation; and

(b) the information, document or answer is relevant to the

investigation.

Note:

The first person may be the person whose disclosure gave rise to the

disclosure investigation.

(2) This section does not apply to liability for an offence against

section 137.1, 137.2, 144.1 or 145.1 of the Criminal Code that

relates to the information, document or answer, as the case may be.

Administrative matters Part 4

Additional obligations and functions Division 1

Section 58

Public Interest Disclosure Bill 2013 No. , 2013 51

Part 4--Administrative matters

Division 1--Additional obligations and functions

58 Simplified outline

The following is a simplified outline of this Division:

This Division promotes the operation of this Act by imposing

additional obligations on principal officers, authorised officers and

public officials, and by conferring additional functions on the

Ombudsman and the IGIS.

59 Additional obligations of principal officers

(1) The principal officer of an agency must establish procedures for

facilitating and dealing with public interest disclosures relating to

the agency. The procedures must include:

(a) assessing risks that reprisals may be taken against the persons

who make those disclosures; and

(b) providing for confidentiality of investigative processes.

The procedures must comply with the standards made under

paragraph 74(1)(a).

(2) Procedures established under subsection (1) are not legislative

instruments.

(3) The principal officer of an agency must take reasonable steps:

(a) to protect public officials who belong to the agency from

detriment, or threats of detriment, relating to public interest

disclosures by those public officials; and

(b) to ensure that the number of authorised officers of the agency

is sufficient to ensure that they are readily accessible by

public officials who belong to the agency; and

aware of the identity of each authorised officer of the agency.

Part 4 Administrative matters

Division 1 Additional obligations and functions

Section 60

52 Public Interest Disclosure Bill 2013 No. , 2013

(4) The principal officer of an agency must ensure that appropriate

action is taken in response to recommendations in a report under

section 51, or any other matters raised in such a report, that relate

to the agency.

60 Additional obligations of authorised officers

If:

(a) an individual discloses, or proposes to disclose, information

to an authorised officer of an agency; and

(b) the authorised officer has reasonable grounds to believe that:

(i) the information concerns, or could concern, disclosable

conduct; and

(ii) the individual may be unaware of what this Act requires

in order for the disclosure to be an internal disclosure;

the authorised officer must:

an internal disclosure for the purposes of this Act; and

(d) explain what this Act requires in order for the disclosure to

be an internal disclosure; and

(e) advise the individual of any orders or directions of which the

authorised officer is aware that are designated publication

restrictions that may affect disclosure of the information.

61 Additional obligations of public officials

(1) A public official must use his or her best endeavours to assist the

principal officer of an agency in the conduct of an investigation

under Part 3.

(2) A public official must use his or her best endeavours to assist the

Ombudsman in the performance of the Ombudsman's functions

under this Act.

(3) A public official must use his or her best endeavours to assist the

IGIS in the performance of the IGIS's functions under this Act.

Administrative matters Part 4

Additional obligations and functions Division 1

Section 62

Public Interest Disclosure Bill 2013 No. , 2013 53

62 Additional functions of the Ombudsman

The functions of the Ombudsman include:

(a)

assisting:

(i)

principal officers of agencies (other than intelligence

agencies or the IGIS); and

(ii)

authorised officers of agencies (other than intelligence

agencies or the IGIS); and

(iii)

public officials who belong to agencies (other than

intelligence agencies or the IGIS); and

(iv)

former public officials who belonged to agencies (other

than intelligence agencies or the IGIS);

in relation to the operation of this Act; and

(b)

conducting educational and awareness programs relating to

this Act, to the extent to which this Act relates to:

(i)

agencies (other than intelligence agencies or the IGIS);

and

(ii)

public officials who belong to agencies (other than

intelligence agencies or the IGIS); and

(iii)

former public officials who belonged to agencies (other

than intelligence agencies or the IGIS); and

(c)

assisting the IGIS in relation to the performance of the

functions conferred on the IGIS by this Act.

Note:

Section 5A of the Ombudsman Act 1976 extends the Ombudsman's

functions to cover disclosures of information that have been, or are

required to be, allocated under section 43 of this Act (whether or not

they are allocated to the Ombudsman), if the disclosable conduct with

which the information is concerned relates to an agency other than an

intelligence agency or the IGIS.

63 Additional functions of the IGIS

The functions of the IGIS include:

(a)

assisting:

(i)

principal officers of intelligence agencies; and

(ii)

authorised officers of intelligence agencies or the IGIS;

and

(iii)

public officials who belong to intelligence agencies or

the IGIS; and

Part 4 Administrative matters

Division 1 Additional obligations and functions

Section 63

54 Public Interest Disclosure Bill 2013 No. , 2013

(iv)

former public officials who belonged to intelligence

agencies or the IGIS;

in relation to the operation of this Act; and

(b)

conducting educational and awareness programs relating to

this Act, to the extent to which this Act relates to:

(i)

intelligence agencies; and

(ii)

public officials who belong to intelligence agencies; and

(iii)

former public officials who belonged to intelligence

agencies; and

(c)

assisting the Ombudsman in relation to the performance of

the functions conferred on the Ombudsman by this Act.

Note:

Section 8A of the Inspector-General of Intelligence and Security Act

1986 extends the IGIS's functions to cover disclosures of information

allocated under section 43 of this Act (whether or not they are

allocated to the IGIS), if the disclosable conduct with which the

information is concerned relates to an intelligence agency.

Administrative matters Part 4

Treatment of information Division 2

Section 64

Public Interest Disclosure Bill 2013 No. , 2013 55

Division 2--Treatment of information

64 Simplified outline

The following is a simplified outline of this Division:

This Division creates offences relating to the inappropriate use or

disclosure of information obtained through processes connected

with this Act.

65 Secrecy--general

(1)

A person commits an offence if:

(a)

the person has information (protected information) that the

person obtained:

(i) in the course of conducting a disclosure investigation; or

(ii) in connection with the performance of a function, or the

exercise of a power, by the person under this Act; and

(b)

the person:

(i)

discloses the information to another person; or

(ii)

uses the information.

Penalty:

Imprisonment for 2 years or 120 penalty units, or both.

(2) Subsection (1) does not apply if:

(a) the disclosure or use is for the purposes of this Act or another

law of the Commonwealth; or

(b) the disclosure or use is for the purposes of, or in connection

with, the performance of a function, or the exercise of a

power, of the person under this Act or another law of the

Commonwealth; or

with, the exercise of the executive power of the

Commonwealth; or

(d) the disclosure or use is in connection with giving another

person (the second person) access to information for the

purposes of, or in connection with:

Part 4 Administrative matters

Division 2 Treatment of information

Section 66

56 Public Interest Disclosure Bill 2013 No. , 2013

(i) the performance of a function, or the exercise of a

power, of the second person under this Act or another

law of the Commonwealth; or

(ii) the exercise of the executive power of the

Commonwealth; or

(e) the protected information has previously been lawfully

published, and is not intelligence information; or

(f) the protected information is intelligence information that has

previously been lawfully published, and the disclosure or use

occurs with the consent of the principal officer of the agency

referred to in section 66 as the source agency for the

intelligence information.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3)

Except where it is necessary to do so for the purposes of giving

effect to this Act or another law of the Commonwealth, a person is

not to be required:

(a)

to produce to a court or tribunal a document containing

protected information; or

(b)

to disclose protected information to a court or tribunal.

(4)

For the purposes of this section, procedures established under a law

of the Commonwealth (other than this Act) are taken to be a law of

the Commonwealth.

66 Source agencies for intelligence information

For the purposes of paragraph 65(2)(f), if the information referred

to in that paragraph is intelligence information because of a

provision referred to in column 1 of an item of the following table,

the source agency for the intelligence information is the agency set

out in column 2 of that item:

Administrative matters Part 4

Treatment of information Division 2

Section 67

Public Interest Disclosure Bill 2013 No. , 2013 57

Source agencies for particular kinds of intelligence information

Item

Column 1

Provision in the

definition of intelligence

information

Column 2

Source agency for the intelligence

information

Paragraph 41(1)(a)

The intelligence agency with which the

information originated, or from which it was

received.

Subparagraph 41(1)(b)(i)

The intelligence agency that is, under item 1

of this table, the source agency for the

information referred to in that subparagraph.

Subparagraph 41(1)(b)(ii)

or (iii)

The intelligence agency referred to in that

subparagraph in relation to the information.

Paragraph 41(1)(c)

The agency to which the public official

referred to in that paragraph belongs.

Paragraph 41(1)(d)

The Defence Department.

Paragraph 41(1)(e)

The agency that is, under item 1, 2, 3, 4 or 5 of

this table, the source agency for the

information to which that paragraph applies.

Paragraph 41(1)(f)

The agency to which the agent or member of

the staff referred to in that paragraph belongs.

Paragraph 41(1)(g)

The agency with which the information

originated, or from which it was received.

67 Secrecy--legal practitioners

(1)

A person commits an offence if:

(a) the person has obtained information in the person's capacity

as the recipient of a public interest disclosure covered by

item 4 of the table in subsection 26(1) (a legal practitioner

disclosure); and

(b)

the person:

(i)

discloses the information to another person; or

(ii)

uses the information.

Penalty:

Imprisonment for 2 years or 120 penalty units, or both.

Part 4 Administrative matters

Division 2 Treatment of information

Section 67

58 Public Interest Disclosure Bill 2013 No. , 2013

(2) Subsection (1) does not apply if:

(a) the disclosure or use is for the purpose of providing legal

advice, or professional assistance, relating to a public interest

disclosure (other than a legal practitioner disclosure) made,

or proposed to be made, by the person who made the legal

practitioner disclosure referred to in paragraph (1)(a); or

(b)

the information has previously been lawfully published.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

Administrative matters Part 4

Officials and agencies Division 3

Section 68

Public Interest Disclosure Bill 2013 No. , 2013 59

Division 3--Officials and agencies

68 Simplified outline

The following is a simplified outline of this Division:

This Division defines the key concepts of public official, agency,

prescribed authority and principal officer.

Subdivision A--Public officials

69 Public officials

(1) For the purposes of this Act:

(a)

a public official means an individual mentioned in column 1

of an item of the following table; and

(b)

the public official belongs to the agency mentioned in

column 2 of the item.

Public officials and the agencies to which they belong

Item

Column 1

Public official

Column 2

Agency to which the public

official belongs

A Secretary of a Department.

The Department.

An APS employee in a Department.

The Department.

A Head of an Executive Agency.

The Executive Agency.

An APS employee in an Executive

Agency.

The Executive Agency.

A principal officer of a prescribed

authority.

The prescribed authority.

A member of the staff of a prescribed

authority (including an APS employee in

the prescribed authority).

The prescribed authority.

An individual who constitutes a prescribed

authority.

The prescribed authority.

Part 4 Administrative matters

Division 3 Officials and agencies

Section 69

60 Public Interest Disclosure Bill 2013 No. , 2013

Public officials and the agencies to which they belong

Item

Column 1

Public official

Column 2

Agency to which the public

official belongs

A member of a prescribed authority (other

than a court).

The prescribed authority.

A director of a Commonwealth company.

The Commonwealth company.

A member of the Defence Force.

The Defence Department.

An AFP appointee (within the meaning of

the Australian Federal Police Act 1979).

The Australian Federal Police.

A Parliamentary Service employee (within

the meaning of the Parliamentary Service

Act 1999).

The Department in which the

Parliamentary service

employee is employed.

An individual who:

(a) is employed by the Commonwealth

otherwise than as an APS employee;

and

(b) performs duties for a Department,

Executive Agency or prescribed

authority.

The Department, Executive

Agency or prescribed

authority.

A statutory officeholder, other than an

individual covered by any of the above

items.

Whichever of the following

agencies is applicable:

(a) if the statutory officeholder

is a deputy (however

described) of the principal

officer of an agency--that

agency;

(b) if the statutory officeholder

performs the duties of his

or her office as duties of

his or her employment as

an officer of or under an

agency--that agency;

ascertained in accordance

with the PID rules.

An individual who is a contracted service

provider for a Commonwealth contract.

Whichever of the following

agencies is applicable:

Administrative matters Part 4

Officials and agencies Division 3

Section 69

Public Interest Disclosure Bill 2013 No. , 2013 61

Public officials and the agencies to which they belong

Item

Column 1

Public official

Column 2

Agency to which the public

official belongs

(a) if the relevant services are

to be, or were to be,

provided wholly or

principally for the benefit

of an agency, or of a party

to a contract with an

agency--that agency;

(b) otherwise--the agency

ascertained in accordance

with the PID rules.

An individual who:

(a) is an officer or employee of a

contracted service provider for a

Commonwealth contract; and

(b) provides services for the purposes

(whether direct or indirect) of the

Commonwealth contract.

Whichever of the following

agencies is applicable:

(a) if the relevant services are

to be, or were to be,

provided wholly or

principally for the benefit

of an agency, or of a party

to a contract with an

agency--that agency;

(b) otherwise--the agency

ascertained in accordance

with the PID rules.

An individual (other than a statutory

officeholder, a judicial officer or an

official of a registered industrial

organisation) who exercises powers, or

performs functions, conferred on the

individual by or under a law of the

Commonwealth, other than:

(a) the Corporations (Aboriginal and

Torres Strait Islander) Act 2006; or

(b) the Australian Capital Territory

(Self-Government) Act 1988; or

(d) the Norfolk Island Act 1979; or

The Department administered

by the Minister administering

that law.

Part 4 Administrative matters

Division 3 Officials and agencies

Section 69

62 Public Interest Disclosure Bill 2013 No. , 2013

Public officials and the agencies to which they belong

Item

Column 1

Public official

Column 2

Agency to which the public

official belongs

(e) the Northern Territory

(Self-Government) Act 1978; or

(f) a provision prescribed by the PID rules.

An individual (other than a judicial

officer) who exercises powers, or performs

functions, conferred on the individual

under a law in force in the Territory of

Christmas Island (whether the law is a law

of the Commonwealth or a law of the

Territory).

The Department administered

by the Minister administering

the Christmas Island Act

1958.

An individual (other than a judicial

officer) who exercises powers, or performs

functions, conferred on the individual

under a law in force in the Territory of

Cocos (Keeling) Islands (whether the law

is a law of the Commonwealth or a law of

the Territory).

The Department administered

by the Minister administering

the Cocos (Keeling) Islands

Act 1955.

The Registrar, or a Deputy Registrar, of

Aboriginal and Torres Strait Islander

Corporations.

The Department administered

by the Minister administering

the Corporations (Aboriginal

and Torres Strait Islander) Act

2006.

(2) A statutory officeholder means an individual (other than a judicial

officer or an official of a registered industrial organisation) who

holds or performs the duties of an office established by or under a

law of the Commonwealth, other than:

(a) the Corporations (Aboriginal and Torres Strait Islander) Act

2006; or

(b) the Australian Capital Territory (Self-Government) Act 1988;

(d) the Norfolk Island Act 1979 (except section 51D of that Act);

Administrative matters Part 4

Officials and agencies Division 3

Section 70

Public Interest Disclosure Bill 2013 No. , 2013 63

(e) the Northern Territory (Self-Government) Act 1978.

(3) For the purposes of item 6 of the table in subsection (1):

(a) a person who is a member of the staff referred to in

subsection 31(1) of the Ombudsman Act 1976 is taken to be a

member of the staff of the Ombudsman; and

(b) a person who is a member of the staff referred to in

subsection 32(1) of the Inspector-General of Intelligence and

Security Act 1986 is taken to be a member of the staff of the

IGIS; and

Enforcement Integrity is taken to be a member of the staff of

the Integrity Commissioner.

(4) To avoid doubt, a judicial officer, or a member of a Royal

Commission, is not a public official for the purposes of this Act.

70 Individuals taken to be public officials

(1)

If:

(a)

an authorised officer of an agency believes, on reasonable

grounds, that an individual has information that concerns

disclosable conduct; and

(b)

apart from this subsection, the individual was not a public

official when the individual obtained the information; and

(c)

the individual has disclosed, or proposes to disclose, the

information to the authorised officer;

the authorised officer may, by written notice given to the

individual, determine that this Act has effect, and is taken always

to have had effect, in relation to the disclosure of the information

by the individual, as if the individual had been a public official

when the person obtained the information.

(2) The authorised officer may make the determination:

(a) on a request being made to the authorised officer by the

individual; or

(b) on the authorised officer's own initiative.

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64 Public Interest Disclosure Bill 2013 No. , 2013

(3) If the individual requests an authorised officer of an agency to

make the determination, the authorised officer must, after

considering the request:

(a) make the determination, and inform the individual

accordingly; or

(b) refuse to make the determination, and inform the individual

of the refusal and the reasons for the refusal.

(4)

A determination under this section is not a legislative instrument.

Subdivision B--Agencies and prescribed authorities

71 Meaning of agency

For the purposes of this Act, agency means:

(a)

a Department; or

(b)

an Executive Agency; or

(c)

a prescribed authority.

72 Meaning of prescribed authority

Prescribed authorities

(1)

For the purposes of this Act, prescribed authority means:

(a) a Statutory Agency; or

(b) a Commonwealth authority (within the meaning of the

Commonwealth Authorities and Companies Act 1997); or

(c)

a Commonwealth company; or

(d)

the Australian Federal Police; or

(e)

the Australian Security Intelligence Organisation; or

(f)

the Australian Secret Intelligence Service; or

(g)

the Defence Imagery and Geospatial Organisation; or

(h)

the Defence Intelligence Organisation; or

(i)

the Defence Signals Directorate; or

(j)

the Office of National Assessments; or

(k) the Australian Prudential Regulation Authority; or

(l)

the High Court or any court created by the Parliament; or

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(m) the Office of Official Secretary to the Governor-General; or

(n)

the Ombudsman; or

(o)

the IGIS; or

(p) any body that:

(i) is established by a law of the Commonwealth; and

(ii) is prescribed by the PID rules; or

(q)

subject to subsection (2), the person holding, or performing

the duties of, an office that:

(i) is established by a law of the Commonwealth; and

(ii) is prescribed by the PID rules.

Exceptions

(2)

For the purposes of this Act, a person is not a prescribed authority

because he or she holds, or performs the duties of:

(a)

an office the duties of which he or she performs as duties of

his or her employment as an officer of a Department or as an

officer of or under a prescribed authority; or

(b)

an office of member of a body; or

purposes of a prescribed authority.

(3) For the purposes of this Act, a Royal Commission is not a

prescribed authority.

Intelligence agencies

(4) For the purposes of this Act, each of the following is taken to be a

prescribed authority in its own right, and not to be part of the

Defence Department:

(a) the Defence Imagery and Geospatial Organisation;

(b) the Defence Intelligence Organisation;

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66 Public Interest Disclosure Bill 2013 No. , 2013

Subdivision C--Principal officers

73 Meaning of principal officer

(1)

For the purposes of this Act, the principal officer of an agency

mentioned in column 1 of an item in the following table is the

person specified in column 2 of the item.

Principal officers of agencies

Item

Column 1

Agency

Column 2

Principal officer

A Department.

The Secretary of the Department.

An Executive Agency.

The Head of the Executive Agency.

A prescribed authority of a

kind mentioned in

paragraph 72(1)(a), (b), (c),

(e), (f), (g), (h), (i), (j), (k) or

(p).

Whichever of the following individuals is

applicable:

(a) the chief executive officer (however

described) of the prescribed authority;

(b) if another individual is ascertained in

accordance with the PID rules--that

other individual.

The Australian Federal Police.

The Commissioner of Police (within the

meaning of the Australian Federal Police

Act 1979).

The High Court or any court

created by the Parliament.

The chief executive officer of the court.

The Office of Official

Secretary to the

Governor-General

The Official Secretary to the

Governor-General.

The Ombudsman.

The IGIS.

A prescribed authority that is

constituted by an individual.

The individual.

(2) For the purposes of this Act:

(a) the Chief Executive and Principal Registrar of the High Court

is the chief executive officer of the High Court; and

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(b) the Registrar of the Federal Court is the chief executive

officer of the Federal Court; and

and the Federal Circuit Court is:

(i) the chief executive officer of the Family Court of

Australia; and

(ii) the chief executive officer of the Federal Circuit Court;

and

(d) the PID rules may provide that the chief executive officer of

another specified court is the person holding, or performing

the duties of, a specified office; and

(e) the Registrar of the Administrative Appeals Tribunal is the

chief executive officer of the Administrative Appeals

Tribunal; and

(f) the PID rules may provide that the chief executive officer of

another specified tribunal is the person holding, or

performing the duties of, a specified office.

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68 Public Interest Disclosure Bill 2013 No. , 2013

Part 5--Miscellaneous

74 Ombudsman may determine standards

(1)

The Ombudsman may, by legislative instrument, determine

standards relating to the following:

(a) procedures, to be complied with by the principal officers of

agencies, for dealing with internal disclosures and possible

internal disclosures;

(b) the conduct of investigations under this Act;

under this Act;

(d) the giving of information and assistance under

subsection 76(3), and the keeping of records for the purposes

of that subsection.

(2)

Before determining a standard, the Ombudsman must consult the

IGIS.

(3)

The Ombudsman must ensure that standards are in force under

each of paragraphs (1)(a), (b) and (c) at all times after the

commencement of this section.

75 Restriction on the application of secrecy provisions

(1) A provision of a law of the Commonwealth that prohibits the

disclosure, recording or use of information does not apply to the

disclosure, recording or use of information if:

(a) the disclosure, recording or use is in connection with the

conduct of a disclosure investigation; or

(b) the disclosure, recording or use is for the purposes of the

performance of the functions, or the exercise of the powers,

conferred on a person by Part 3 or section 61; or

person access to information for the purposes of, or in

connection with, the performance of the functions, or the

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Public Interest Disclosure Bill 2013 No. , 2013 69

exercise of the powers, conferred on the person by Part 3 or

section 61;

and the disclosure, recording or use is not contrary to a designated

publication restriction.

Note:

For designated publication restriction, see section 40.

(2) However, this section does not apply if:

(a)

the provision is enacted after the commencement of this

section; and

(b)

the provision is expressed to have effect despite this section.

76 Annual report

(1)

The Ombudsman must, as soon as practicable after the end of each

financial year, prepare and give to the Minister, for presentation to

Parliament, a report on the operation of this Act during that

financial year.

Note:

See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

(2) The report must include:

(a) in relation to each agency, statements of the following:

(i) the number of public interest disclosures received by

authorised officers of the agency during the financial

year;

(ii) the kinds of disclosable conduct to which those

disclosures relate;

(iii) the number of disclosure investigations that the

principal officer of the agency conducted during the

financial year;

(iv) the actions that the principal officer of the agency has

taken during the financial year in response to

recommendations in reports relating to those disclosure

investigations; and

(b) a statement of the number and nature of the complaints made

to the Ombudsman during the financial year about the

conduct of agencies in relation to public interest disclosures;

and

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70 Public Interest Disclosure Bill 2013 No. , 2013

functions under section 62; and

(d) information about the IGIS's performance of its functions

under section 63.

(3)

The principal officer of an agency must give the Ombudsman such

information and assistance as the Ombudsman reasonably requires

in relation to the preparation of a report under this section.

(4) Despite subsection (3), the principal officer may delete from a

document given to the Ombudsman under that section any

material:

(a) that is likely to enable the identification of a person who has

made a public interest disclosure or another person; or

(b) the inclusion of which would:

(i) result in the document being a document that is exempt

for the purposes of Part IV of the Freedom of

Information Act 1982; or

(ii) result in the document being a document having, or

being required to have, a national security or other

protective security classification.

(5) A report under this section in relation to a financial year may be

included in a report under section 19 of the Ombudsman Act 1976

relating to the operations of the Ombudsman during that year.

77 Delegations

Principal officers

(1)

The principal officer of an agency (other than the IGIS or the

Ombudsman) may, by writing, delegate any or all of his or her

functions or powers under this Act to a public official who belongs

to the agency.

Ombudsman

(2)

The Ombudsman may, by writing, delegate any or all of his or her

functions or powers under this Act to:

(a)

a Deputy Commonwealth Ombudsman; or

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Public Interest Disclosure Bill 2013 No. , 2013 71

(b)

a member of staff mentioned in section 31 of the

Ombudsman Act 1976.

IGIS

(3)

The IGIS may, by writing, delegate any or all of his or her

functions or powers under this Act to a member of staff mentioned

in section 32 of the Inspector-General of Intelligence and Security

Act 1986.

78 Liability for acts and omissions

(1) The principal officer of an agency or a delegate of the principal

officer, or an authorised officer of an agency, is not liable to any

criminal or civil proceedings, or any disciplinary action (including

any action that involves imposing any detriment), for or in relation

to an act or matter done, or omitted to be done, in good faith:

(a) in the performance, or purported performance, of any

function conferred on the person by this Act; or

(b) in the exercise, or purported exercise, of any power conferred

on the person by this Act.

(2) This section does not apply to a breach of a designated publication

restriction.

Note:

For designated publication restriction, see section 40.

(3) This section does not affect any rights conferred by the

Administrative Decisions (Judicial Review) Act 1977 to apply to a

court, or any other rights to seek a review by a court or tribunal, in

relation to:

(a) a decision; or

(b) conduct engaged in for the purpose of making a decision; or

(4) An expression used in subsection (3) has the same meaning as in

section 10 of the Administrative Decisions (Judicial Review) Act

1977.

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Section 79

72 Public Interest Disclosure Bill 2013 No. , 2013

79 Concurrent operation of State and Territory laws

This Act is not intended to exclude or limit the operation of a law

of a State or Territory that is capable of operating concurrently

with this Act.

80 Law relating to legal professional privilege not affected

This Act does not affect the law relating to legal professional

privilege.

81 Law relating to parliamentary privilege not affected

(1) This Act does not affect the powers, privileges and immunities of:

(a) the Senate; and

(b) the House of Representatives; and

(d) the committees of each House of the Parliament;

under section 49 of the Constitution.

(2) This Act does not affect the powers, privileges and immunities

conferred by, or arising under, the Parliamentary Privileges Act

1987.

82 Other investigative powers etc. not affected

(1) This Act does not, by implication, limit the investigative powers

conferred on an agency or a public official by a law of the

Commonwealth other than this Act.

(2) This Act does not detract from any obligations imposed on an

agency or a public official by a law of the Commonwealth other

than this Act.

83 The PID rules

The Minister may, by legislative instrument, make rules

prescribing matters:

(a)

required or permitted by this Act to be prescribed; or

Commonwealth of Australia Bills

PUBLIC INTEREST DISCLOSURE BILL 2013