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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PUBLIC INTEREST DISCLOSURE BILL 2013
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for the Public Service and Integrity,
the Hon Mark Dreyfus QC MP)
Public Interest Disclosure Bill 2013
Outline
The proposed government amendments to the Public Interest Disclosure Bill 2013 will
improve the operation of the Bill and clarify certain provisions. The proposed amendments
would substantially implement recommendations made by the Senate Legal and
Constitutional Affairs Legislation Committee report in its inquiry into the Bill (`the Senate
Committee report'), and have also been informed by submissions made to the inquiries into
the Bill by the Senate Committee and by the House of Representatives Standing Committee
on Social Policy and Legal Affairs.
The proposed government amendments are described below.
Criteria for a public interest disclosure
Omitting as a criterion to qualify for a protected `internal disclosure', `external
disclosure' or an `emergency disclosure', the ground that a disclosure not be contrary
to a designated publication restriction, and instead providing that the immunity
protections in clause 10 of the Bill would not apply where a discloser knows that the
disclosure contravenes the designated publication restriction and does not have a
reasonable excuse for that contravention. This amendment would address one of the
matters referred to in the Senate Committee report at recommendation 7.
Amending a criterion to qualify for a protected `internal disclosure' and `external
disclosure' so that it is a requirement that the information tends to show, or the
discloser believes on reasonable grounds that the information tends to show, one or
more instances of disclosable conduct.
Amending certain other criteria to qualify for a protected `external disclosure' in
clause 26(1) of the Bill so that:
o one of the following grounds would need to be met, either the discloser believes
on reasonable grounds that the Part 3 investigation was inadequate, or a response
to any investigation was inadequate, or a Part 3 investigation has not been
completed within the required time limit (implementing in part recommendation 2
of the Senate Committee report); and
o the criterion in paragraph (f) would become, `no more information is publicly
disclosed than is reasonably necessary to identify one or more instances of
disclosable conduct' (omitting the reference to `in the public interest').
Adding factors to the list of factors in clause 26(3) which sets out matters a discloser
is required to consider for the purposes of the public interest test criterion for a
protected `external disclosure', including factors favouring disclosure. This
amendment would implement in part recommendation 2 of the Senate Committee
report.
Protection of disclosers
Amending subclause 11(1) of the Bill so that the immunity protections in clause 10 of
the Bill would be lost only if the discloser `knowingly' makes a statement that is false
or misleading. This amendment would implement recommendation 4 of the Senate
Committee report.
2
Increasing the penalty for the offences of taking a reprisal or threatening to take a
reprisal against a person who has made a disclosure to 2 years imprisonment or 120
penalty units or both.
Clarifying that the `workplace right' protections in Part 3-1 of the Fair Work Act 2009
referred to in clause 22 of the Bill apply to the making of a public interest disclosure
by a public official who is an employee within the meaning of Part 3-1 of the Fair
Work Act. Other amendments would combine the provisions dealing with the
interaction between the Bill and the Fair Work Act into a stand-alone subdivision in
Part 2 to assist with readability.
Clarifying that a person may make an application to the Federal Court or Federal
Circuit Court for compensation, reinstatement, injunction or other orders under
clauses 14, 15 and 16 even if a prosecution in relation to the reprisal has not been
brought or cannot be brought for the purposes of the offences of taking a reprisal, or
threatening to take a reprisal, at clause 19.
Providing that an applicant to a proceeding arising under clauses 14, 15 or 16 may
only be ordered to pay the costs of the other party if the court is satisfied that the
applicant instituted the proceedings vexatiously or without reasonable cause, or if the
court is satisfied that the applicant's unreasonable act or omission caused the other
party to incur costs.
Providing that the consent of the discloser is needed for an authorised officer to give a
principal officer the name and contact details of the discloser when the authorised
officer is allocating a disclosure to the principal officer of an agency (clause 44(1)(d)).
Oversight by the Ombudsman or the Inspector-General of Intelligence and Security
Requiring the Ombudsman or the IGIS (if the disclosure relates to an intelligence
agency) to give reasons when notifying the discloser of a decision they have made to
extend the period for an agency to investigate a disclosure.
Requiring an authorised officer of an agency to give certain details about a disclosure
to the Ombudsman or the IGIS (if the agency is an intelligence agency) when the
officer makes a decision about which agency will handle the disclosure (referred to in
the Bill as an allocation decision). This would mean that the Ombudsman and the
IGIS would receive notices about all disclosures as they are being handled by
agencies.
Requiring a principal officer of an agency to notify the Ombudsman or the IGIS (if
the agency is an intelligence agency) of a decision not to investigate a disclosure and
to give reasons for that decision.
Adding notes to the Bill to refer to the remedy for a discloser who is dissatisfied with
the handling of a disclosure by an agency to complain to the Ombudsman or the IGIS
(if the agency is an intelligence agency).
Other proposed amendments
Providing for a discloser to qualify for protection for the purposes of an `internal
disclosure' if the discloser makes a disclosure to a supervisor and meets other criteria.
This amendment would implement in large part recommendation 1 of the Senate
Committee report.
3
Removing some grounds on which a principal officer of an agency may decide not to
investigate a disclosure. This amendment would address a matter referred to in the
Senate Committee report at recommendation 7.
Requiring the principal officer of an agency to inform a discloser of the progress of an
investigation as soon as reasonably practicable after an extension or further extension
for an investigation is approved by the Ombudsman or the Inspector-General of
Intelligence and Security.
Clarifying obligations on principal officers, the Ombudsman and the IGIS to give
certain notices about the handling of a disclosure by replacing the concept of giving
notice `if the discloser is readily contactable' with the concept that the obligation
would not apply if contacting the discloser is not reasonably practicable.
Amending a secrecy offence in the Bill (clause 65(2)) so that the disclosure or use of
protected information would be permitted for the purposes of the Bill or for the
purposes of, or in connection with, taking action in response to a disclosure
investigation.
Confirming that a judicial officer or a member of a Royal Commission cannot be
deemed to be a public official for the purposes of clause 70 of the Bill.
Clarifying that a tribunal for the purposes of clause 32 (exclusion of conduct
connected with tribunals) means a tribunal established under a law of the
Commonwealth.
Enabling the Minister, under the PID rules, to prescribe a statutory officeholder to be
a tribunal for the purposes of clause 32 with the effect that their tribunal-like conduct
could not be the subject of a public interest disclosure. The amendment is proposed
because some statutory office holders may perform tribunal-like functions, such as the
Australian Information Commissioner's function to review decisions under Part VII
of the Freedom of Information Act 1982.
Removing clause 81 dealing with parliamentary privilege. This amendment would
implement recommendation 5 of the Senate Committee report.
Providing for the Minister to cause a review to be undertaken of the operation of the
Act to start 2 years after the commencement of the Act and to be completed within
6 months, with a copy of the report to be tabled in the Parliament. This amendment
would implement recommendation 6 of the Senate Committee report.
Financial Impact Statement
Ongoing funding has been provided to the Office of the Commonwealth Ombudsman and the
Office of the Inspector-General of Intelligence and Security for their roles under the proposed
scheme.
Agencies are to absorb costs associated with establishing processes for handling and
investigating public interest disclosures.
To the extent any of the proposed amendments would give rise to resource implications these
costs would be absorbed by agencies.
4
List of abbreviations
Bill Public Interest Disclosure Bill 2013
Fair Work Act Fair Work Act 2009
ICCPR International Covenant on Civil and Political Rights
IGIS Inspector-General of Intelligence and Security
5
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Public Interest Disclosure Bill 2013
The proposed amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
The purposes of the proposed government amendments are set out in the Outline above.
Human rights implications
Right to freedom of opinion and expression
The right to freedom of opinion and expression is contained in articles 19 and 20 of the
International Covenant on Civil and Political Rights (ICCPR). Article 19(2) of the ICCPR
provides that everyone shall have the right to freedom of expression and that this right
includes the freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of their choice. This right may be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary on limited grounds, including for the
respect of the rights or reputations of others.
The objects of the Bill include encouraging and facilitating the making of public interest
disclosures by public officials and ensuring that public officials who make such disclosures
are protected from adverse consequences. In providing this protection for disclosers this Bill
engages the right to freedom of expression. The emphasis of the scheme is on disclosures of
wrongdoing being reported to and investigated within government. This is consistent with
observations made by the European Court of Human Rights when considering article 10 of
the European Convention on Human Rights 1950, which is similar to Article 19 of the
ICCPR. The Court found that the right to freedom of expression applied in the workplaces of
civil servants, and also commented that as employees owe their employer a `duty of loyalty,
reserve and discretion', disclosures should first be made to the person's superior or other
competent authority and `[i]t is only where this is clearly impracticable that the information
could, as a last resort, be disclosed to the public' (Guja v Moldova [2008] ECHR 144).
Broadly speaking, in addition to giving protections for disclosures reported internally, the Bill
will also give protections for an `external disclosure' where an agency has inadequately
handled a public interest disclosure that has previously been reported internally and where
certain other criteria are met. The Bill will also give protection where criteria are met for an
`emergency disclosure' or for a `legal practitioner disclosure'.
Amendments proposed to the Bill will amend some criteria to qualify for a protected
disclosure and therefore engage the right to freedom of opinion and expression. These
include the following.
The requirement that a disclosure not be contrary to a `designated publication restriction'
would be omitted as a criterion to qualify for a protected `internal disclosure', `external
disclosure' or an `emergency disclosure'. A different approach is taken, so that instead
the immunity protections in clause 10 of the Bill would not apply where a discloser
6
knows that the disclosure contravenes the designated publication restriction and does not
have a reasonable excuse for that contravention (amendments (7), (23), (24) and (33)).
The requirement to qualify for an `external disclosure' that an investigation or response
to an investigation be inadequate would be satisfied if the discloser believes on
reasonable grounds that the Part 3 investigation was inadequate, or the discloser believes
on reasonable grounds that a response to any investigation was inadequate, or if a Part 3
investigation has not been completed within the required time limit. The tests for
determining inadequacy in clauses 37, 38 and 39 would be omitted (amendments (3),
(21), (25) and (32)).
Other proposed amendments serve to enhance protections for disclosers who make qualifying
public interest disclosure and thereby engage the right to freedom of opinion and expression,
in particular:
amending subclause 11(1) of the Bill so that the immunity protections in clause 10 of the
Bill would be lost only if the discloser `knowingly' makes a statement that is false or
misleading (amendment (6));
increasing the penalty for the offences in clause 19 of taking a reprisal or threatening to
take a reprisal against a person who has made a disclosure to 2 years imprisonment or
120 penalty units or both (which is increased from 6 months or 30 penalty units or both)
(amendments (9) and (10)); and
providing that an applicant to a proceeding arising under clauses 14, 15 or 16 may only
be ordered to pay the costs of the other party if the court is satisfied that the applicant
instituted the proceedings vexatiously or without reasonable cause, or if the court is
satisfied that the applicant's unreasonable act or omission caused the other party to incur
costs (amendment (8)).
Right to privacy
The prohibition on interference with privacy and attacks on reputation is contained in Article
17 of the ICCPR. The right to privacy may be subject to permissible limitations. In order for
an interference with the right to privacy to be permissible, the interference must be authorised
by law, be for a reason consistent with the ICCPR and be reasonable in the particular
circumstances. Reasonableness, in this context, incorporates notions of proportionality,
appropriateness and necessity.
In response to inquiries by the Parliamentary Joint Committee on Human Rights about the
scope of exceptions to the secrecy offence in clause 65(2), proposed amendments will omit as
exceptions where the use or disclosure of protected information is for the purpose of another
Commonwealth law, or is in connection with the exercise of Commonwealth executive
power. Amendment (65) will insert a more specific exception so that the offence would not
apply if the disclosure or use of protected information is for the purpose of, or in connection
with, taking action in response to a disclosure investigation. The effect of these changes are
that the secrecy offence would not apply if the disclosure or use of protected information is
for the purposes of the Bill, or for the purposes of, or in connection with, taking action in
response to a disclosure investigation.
Amendment (38) promotes the right to privacy of those persons who make a public interest
disclosure by requiring an authorised officer when allocating a disclosure for investigation to
obtain the discloser's consent before providing a principal officer with the discloser's name
and contact details.
7
Right to work and rights in work
The right to work and rights in work are contained in articles 6(1), 7 and 8(1)(a) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). The rights
encompass the right not to be unjustly deprived of work, or be subject to unfair dismissal.
A number of the proposed amendments enhance protections for a discloser and thereby serve
to enhance these rights. These amendments are:
amending subclause 11(1) of the Bill so that the immunity protections in clause 10 of the
Bill would be lost only if the discloser `knowingly' makes a statement that is false or
misleading (amendment (6));
increasing the penalty for the offences in clause 19 of taking a reprisal or threatening to
take a reprisal against a person who has made a disclosure to 2 years imprisonment or
120 penalty units or both (from 6 months or 30 penalty units or both) (amendments (9)
and (10));
providing that an applicant to a proceeding arising under clauses 14, 15 or 16 may only
be ordered to pay the costs of the other party if the court is satisfied that the applicant
instituted the proceedings vexatiously or without reasonable cause, or if the court is
satisfied that the applicant's unreasonable act or omission caused the other party to incur
costs (amendment (8)); and
clarifying that a person may make an application to the Federal Court or Federal Circuit
Court for compensation, reinstatement, injunction or other orders under clauses 14, 15
and 16 even if a prosecution in relation to the reprisal has not been brought or cannot be
brought for the purposes of the offences of taking a reprisal, or threatening to take a
reprisal, at clause 19 (amendment (11)).
Several amendments enhance the right to work and the rights in work by strengthening the
oversight measures in the Bill, in particular:
requiring the Ombudsman or the IGIS (if the disclosure relates to an intelligence agency)
to give reasons when notifying the discloser of a decision they have made to extend the
period for an agency to investigate a disclosure (amendment (53));
requiring an authorised officer of an agency to give certain details about a disclosure to
the Ombudsman or the IGIS (if the agency is an intelligence agency) when the officer
makes a decision about which agency will handle the disclosure (referred to in the Bill as
an allocation decision). This would mean that the Ombudsman and the IGIS would
receive notices about all disclosures as they are being handled by agencies (amendment
(39)); and
requiring a principal officer of an agency to notify the Ombudsman or the IGIS (if the
agency is an intelligence agency) of a decision not to investigate a disclosure and to give
reasons for that decision (amendment (53)).
Conclusion
The amendments proposed to the Bill are compatible with human rights and serve to promote
the right to privacy, the right to work and rights in work and the right to freedom of opinion
and expression in so far as the amendments would operate to simplify criteria to qualify for
protected disclosures.
8
Public Interest Disclosure Bill 2013
Notes on amendments
Amendments (1), (4), (27-30) and (68) [Commonwealth tribunals]
Amendment (1) clarifies that a `tribunal', for the purposes of clause 32 which provides that
certain conduct connected with a tribunal is not `disclosable conduct', means a body
established as a tribunal by or under a law of the Commonwealth. Amendment (1) also
enables the Minister, under the PID rules, to prescribe a statutory officeholder to be a tribunal
for the purposes of clause 32 with the effect that their tribunal-like conduct could not be the
subject of a public interest disclosure. The amendment is proposed because some statutory
officeholders may perform tribunal-like functions, such as the Australian Information
Commissioner's function to review decisions under Part VII of the Freedom of Information
Act 1982.
Amendments (4), (27-30) and (68) are consequential to amendment (1) to replace references
to `tribunal' with references to `Commonwealth tribunal'.
Amendments (2), (7), (17-19), (23-24), (33-34), (55), (59), (69) and (71) [designated
publication restrictions]
Amendments (19), (23) and (24) would remove as a criterion to qualify for a protected
`internal disclosure', `external disclosure' or an `emergency disclosure', the ground that a
disclosure not be contrary to a designated publication restriction.
Amendment (7), is complementary to those amendments, and would insert clause 11A, which
has the effect that the immunity protections in clause 10 of the Bill would not apply where a
discloser knows that the disclosure contravenes a `designated publication restriction' and
does not have a reasonable excuse for that contravention.
Amendment (2), which inserts into the definitions clause the provisions which constitute a
`designated publication restriction' for the purposes of clause 11A(2), are the same provisions
listed in the Bill at clause 40. Clause 40 would be omitted by amendment (34).
Amendments (17-18), (33), (59), (69) and (71) are consequential to the above amendments
and would update a simplified outline (17-18), a subdivision heading (33) and update clause
references ((59), (69) and (71)).
Clause 51(5) permits the principal officer of an agency to delete certain material from a copy
of a report of an investigation to be given to a discloser. Amendment (55) would amend that
clause to add, as a further ground for deletion, any material the inclusion of which would
contravene a `designated publication restriction'.
Amendment (5), (16), (19), (31), (35-37), (60), (62), (70) [disclosure to supervisors]
The effect of amendment (19), in so far as it amends the middle column of table item 1 in
clause 26(1), is that for the purposes of an `internal disclosure' a disclosure may be made to a
supervisor as well as to an authorised internal recipient. Amendments (16), (35), (36) and
(60) are consequential to this amendment and update three simplified outlines. Amendment
(31) adds a note to clause 34 which defines who is an `authorised internal recipient'.
Amendment (37) is also consequential to amendment (19) and updates clause 43 which
9
places an obligation on an authorised officer to allocate the handling of disclosures to one or
more agencies.
Amendment (5) defines a supervisor to mean a person who is a public official who supervises
or manages the person making a disclosure.
Amendment (62) complements amendment (19), and inserts a new clause 60A that would
require a supervisor, where they have reasonable grounds to believe that information
disclosed by a public official concerns, or could concern, disclosable conduct to give the
information to an authorised officer of the agency to which the supervisor belongs.
Amendment (70) is consequential to the above amendments and would amend clause 78(1) to
protect a supervisor from liability for acts or omissions done in good faith in performing
obligations under the Bill. Under existing clause 78(1), protection of this kind applies to
principal officers, their delegates and authorised officers when performing functions or
exercising powers under the Bill.
Amendment (6) [false or misleading statements]
This amendment would amend clause 11 of the Bill so that the immunity protections in
clause 10 of the Bill would be lost if the discloser `knowingly' makes a statement that is false
or misleading.
Amendment (8) [Interaction with the Fair Work Act 2009; costs]
Amendment (8) would omit clause 18 of the Bill (interaction with remedies under the Fair
Work Act) and substitute a new clause 18 that provides that an applicant to a proceeding
arising under clauses 14, 15 or 16 may only be ordered to pay the costs of the other party if
the court is satisfied that the applicant instituted the proceedings vexatiously or without
reasonable cause, or if the court is satisfied that the applicant's unreasonable act or omission
caused the other party to incur costs. The provision would also apply to an appeal. For a
respondent party, it is intended that the Federal Court of Australia or Federal Circuit Court of
Australia could exercise its ordinary jurisdiction to award costs, which could include that a
respondent party pay the costs of an applicant party if the respondent party is unsuccessful in
defending the claim against it.
Existing clause 18, dealing with the interaction with remedies under the Fair Work Act and
the Bill, is preserved by amendment (14) as clause 22A.
Amendments (9-10) [penalties for reprisals]
These amendments would amend the offences in clause 19 to increase the penalty for taking a
reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years
imprisonment or 120 penalty units or both. This is a change from 6 months imprisonment or
30 penalty units or both. The amended penalty is comparable to a similar offence of
victimisation in section 220 of the Law Enforcement Integrity Commissioner Act 2006.
Amendment (11) [interaction between civil remedies and offences]
Amendment (11) inserts a new clause 19A clarifying that a person may make an application
for compensation, reinstatement, injunction or other orders under clauses 14, 15 and 16 even
if a prosecution for an offence under clause 19 in relation to the reprisal or threat has not been
brought or cannot be brought. The provision is expressed to avoid doubt on the interaction
between the offences in clause 19 and the civil remedies in the Bill.
10
Amendments (8), (12), (14-15) [interaction with the Fair Work Act 2009]
The effect of these amendments is to combine the provisions dealing with the interaction
between the Bill and the Fair Work Act into a stand-alone Subdivision D in Part 2. These
amendments are to assist with readability.
Amendment (13) [meaning of employee]
This amendment clarifies that the `workplace right' protections in Part 3-1 of the Fair Work
Act referred to in clause 22 of the Bill apply to the making of a public interest disclosure by a
public official who is an employee within the meaning of Part 3-1 of the Fair Work Act.
Amendments (19-20) [disclosure without belief of disclosable conduct]
Amendment (19), in so far as it amends the third column of table item 1 in clause 26(1),
would amend paragraph (a) of the further requirements to qualify for a protected `internal
disclosure' so that the requirement would be that the information tends to show, or the
discloser believes on reasonable grounds that the information tends to show, one or more
instances of disclosable conduct.
Amendment (20) makes the same amendment in the context of the requirement at paragraph
(a) to qualify for a protected `external disclosure' at table item 2 in clause 26(1).
Amendments (3), (21), (25) and (32) [inadequate investigations]
Amendment (21) omits, from the further requirements for an `external disclosure' in the third
column of table item 2 in clause 26(1), the criteria in paragraphs (c) and (d), and substitutes
the criteria that any of the following apply:
a disclosure investigation relating to the internal disclosure was conducted under Part 3,
and the discloser believes on reasonable grounds that the investigation was inadequate; or
a disclosure investigation relating to the internal disclosure was conducted (whether or
not under Part 3), and the discloser believes on reasonable grounds that the response to
the investigation was inadequate; or
the Bill requires an investigation relating to the internal disclosure to be conducted under
Part 3, and that investigation has not been completed within the time limit under
section 52.
Amendments (3) and (32) are consequential amendment to amendment (21), omitting the
definition of inadequate and the grounds in clauses 37 to 39, which include objectively based
criteria, of when an investigation or response is taken to be inadequate.
Amendment (25) preserves the principle in clauses 38(2) and 39(2) that a response to a
disclosure investigation is taken not to be inadequate to the extent that the response involves
action that has been, is being, or is to be taken by the Minister, or a Presiding Officer. The
scheme does not apply to conduct of a Minister or Members of Parliament.
Amendment (22) [external disclosures]
This amendment amends paragraph (f) of the further requirements for a protected `external
disclosure' in table item 2 of clause 26(1), so that the requirement would become, `no more
information is publicly disclosed than is reasonably necessary to identify one or more
instances of disclosable conduct', in place of the current reference to `in the public interest'.
11
Amendment (26) [public interest test]
Amendment 26 adds factors to the list of factors in clause 26(3) which sets out matters a
discloser is required to consider for the purposes of the public interest test criterion for a
protected `external disclosure'. The additional factors add balance to the list of factors and
include factors that would favour disclosure of information. Some of these additional factors
reflect objects outlined in clause 6.
Amendments (36), (43) and (61) [complaints to Ombudsman and IGIS]
These amendments add notes, respectively, to clause 42 (simplified outline on allocating the
handling of disclosures), clause 46 (simplified outline on the obligation to investigate
disclosures) and clause 58 (simplified outline on additional obligations and functions) to refer
to the remedy for a discloser who is dissatisfied with the handling of a disclosure by an
agency to complain to the Ombudsman or the IGIS (if the matter relates to an intelligence
agency). The placement of the notes is not intended to limit the capacity for a discloser to
complain to the Ombudsman or the IGIS at any point in the handling of a disclosure they
have made.
Amendment (38) and (46) [notification of allocation decision]
Amendment (38) would amend paragraph 44(1)(d) so that an authorised officer would give
details of a discloser's name and contact details to a principal officer who will be handling a
disclosure if the discloser consents to the principal officer being informed. Amendment (46)
is consequential upon this change.
Amendment (39) [notification of allocation decision]
This amendment inserts a new subclause (1A) in clause 44, and would place an obligation on
an authorised officer of an agency to give certain details about a disclosure to the
Ombudsman or the IGIS (if the agency is an intelligence agency) when the authorised officer
makes a decision about which agency will handle the disclosure. This would mean that the
Ombudsman and the IGIS would receive notices about all disclosures as they are being
allocated by agencies. The matters that the authorised officer would need to notify are the
same matters that an authorised officer needs to give to a principal officer who is being
allocated the disclosure in clause 44(1).
Amendments (40-42), (47-50), (52) (54) (56-57) [contacting the discloser]
These amendments (other than amendment (50)) clarify obligations on principal officers, the
Ombudsman and the IGIS to give certain notices about the handling of a disclosure by
replacing the concept of giving notice `if the discloser is readily contactable' with the concept
that the obligation does not apply if contacting the discloser is not reasonably practicable.
Clause 50 requires a principal officer to notify a discloser about a decision to investigate or
not investigate. Amendment (50) will add a time frame so that these notices must be given as
soon as reasonably practicable.
Amendments (44-45) [discretion not to investigate]
Amendment (44) would omit paragraph 48(1)(b) as a ground on which a principal officer
may decide not to investigate a disclosure. That ground is that if the information disclosed
does not tend to show any instance of disclosable conduct.
12
Amendment (45) would omit the concepts of `misconceived or lacking in substance' as
grounds on which a principal officer may decide not to investigate from paragraph 48(1)(d).
It would remain a ground not to investigate if the disclosure is frivolous or vexatious.
Amendments (51) and (58)
To assist with readability, the obligation on a principal officer to notify a discloser of the
estimated duration of an investigation is moved from clause 55 (which will be omitted by
amendment (58)) to clause 50 (amendment (51)).
Amendment (53) [notification of decision not to investigate]
This amendment adds a new clause 50A, which would require a principal officer of an
agency to notify the Ombudsman or the IGIS (if the agency is an intelligence agency) of a
decision not to investigate a disclosure and to give reasons for that decision.
Amendment (57) [reasons for extending period for completion, informing the discloser of
progress]
Under clause 52(5) the Ombudsman or the IGIS is required to notify a discloser of a decision
by them to extend the time period that an agency has for undertaking an investigation.
Amendment (57) will require the Ombudsman or the IGIS (if the agency is an intelligence
agency) to give reasons for their decision when giving that notice to a discloser (paragraph
52(5)(a)).
Paragraph 52(5)(b) will insert an additional notification obligation on a principal officer of an
agency to inform a discloser of the progress of an investigation as soon as reasonably
practicable after an extension or further extension for an investigation is approved by the
Ombudsman or the Inspector-General of Intelligence and Security.
Amendments (63-66) [Secrecy]
Clause 65(1) makes it an offence if a person discloses or uses information obtained by them
in the course of conducting an investigation or in connection with the performance of a
function or exercise of a power under the Bill (referred to as `protected information'). The
offence does not apply if an exception applies. These amendments are relevant to the
exceptions and would remove references to authorising use or disclosure for the purpose of
`another law of the Commonwealth' or for the purpose of `the exercise of the executive
power of the Commonwealth' in paragraphs 65(2)(a)-(d) (amendments (63-65)).
Amendment (65) would substitute a new paragraph 65(2)(c) providing for the disclosure or
use of protected information for the purpose of, or in connection with, taking action in
response to a disclosure investigation. Authorisation for that purpose could apply for
example to disclosure to police or to the Law Enforcement Integrity Commissioner.
Amendment (66) would omit subclause 65(4) which is consequential to amendments (63-65).
Amendment (67) [judicial officers etc. not to be public officials]
This amendment confirms that a judicial officer or a member of a Royal Commission cannot
be deemed to be a public official for the purposes of the Bill.
Amendment (72) [law relating to parliamentary privilege]
Amendment (72) would omit clause 81. This would implement a recommendation of the
Senate Legal and Constitutional Affairs Legislation Committee report on the Bill.
13
Amendment (73) [Review of operation of Act]
Amendment (73) would require the responsible Minister to cause a review of the operation of
the Bill, when enacted, to be undertaken two years after commencement. The review must be
completed within six months and a copy of the report would be required to be tabled in the
Parliament by the Minister.
14
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