Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Act 2024
24FNotice to give information etc.
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(a) the investigating Commissioner for a conduct issue has reasonable grounds to believe that a person has information, or a document or thing, that is relevant to:
(i) a preliminary inquiry mentioned in section 24CG in relation to the issue; or
(ii) the investigation of the issue under Subdivision C of Division 3; or
(iii) the preparation of a report under Subdivision D of Division 3 on the issue; or
(b) a review panel dealing with an application for review under Division 4 has reasonable grounds to believe that a person has information, or a document or thing, that is relevant to the review.
Notice to give information etc.
(2) The Commissioner or panel may, by written notice given to the person, require the person to:
(a) give any such information to the Commissioner or panel; or
(b) produce any such document or thing to the Commissioner or panel; or
(c) attend an interview with the Commissioner or panel, including to make a statement or answer questions.
Note: This does not affect the law relating to parliamentary privileges and immunities (see section 67).
(3) The notice must:
(a) if the notice requires the person to give information or produce a document or thing—specify:
(i) the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and
(ii) the manner in which the person is required to comply with the notice; and
(b) if the notice requires the person to attend an interview—specify:
(i) a time and place at which the person is to attend; and
(ii) the nature of the matter to which the interview will relate; and
(c) in any case—state the effect of sections 24FA (when compliance with notice is not required) and 24FB (offence—failure to comply with notice to give information etc.) of this Act, and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).
Person may notify Commissioner or panel if unable to attend interview
(4) If:
(a) the notice requires the person to attend an interview; and
(b) there is a reason why it is not reasonably practicable for the person to do so;
the person may, within 7 days after receiving the notice, notify the Commissioner or panel of the reason.
Note: A person commits an offence if the person fails to comply with a requirement of a notice under this section unless it is not reasonably practicable for the person to do so (see section 24FB).
24FA When compliance with notice is not required
(1) A person (the recipient) is not required to comply with a requirement of a notice given to the recipient under section 24F if subsection (2) or (3) of this section applies.
Information etc. relating to support services
(2) This subsection applies if the requirement relates to information, a document or a thing obtained or brought into existence in the course of, or for the purposes of, providing a service under section 15 (support function).
Information etc. relating to informant’s identity
(3) This subsection applies if:
(a) the requirement relates to information, a document or a thing given by a person (the informant), whether directly or indirectly:
(i) to another person who works in a professional capacity as a journalist; and
(ii) in the normal course of the journalist’s work as a journalist; and
(b) the journalist reasonably believes that the informant has provided the information on the express or implied understanding that the informant’s identity would not be disclosed; and
(c) compliance with the requirement would disclose the identity of the informant or enable that identity to be ascertained; and
(d) the recipient is:
(i) the journalist; or
(ii) the journalist’s employer; or
(iii) assisting the journalist and employed or engaged by the journalist’s employer; or
(iv) assisting the journalist in the recipient’s professional capacity.
(4) If the journalist is a staff member of a Commonwealth entity, the reference in subsection (3) to the journalist’s employer is taken to include a reference to:
(a) if the accountable authority (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the entity is a single person—that person; or
(b) if the accountable authority (within the meaning of that Act) of the entity is a governing body or other group of persons:
(i) the chief executive officer (however described) of the entity (unless subparagraph (ii) applies); or
(ii) if the PWSS rules prescribe another person as the head of the entity—that other person.
(5) For the purposes of subsection (4), the following are staff members of a Commonwealth entity:
(a) an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the entity;
(b) an individual who is employed by, or engaged in assisting:
(i) the entity; or
(ii) a staff member of the entity on behalf of the entity or the Commonwealth.
24FB Offence—failure to comply with notice to give information etc.
(1) A person commits an offence if:
(a) the person is required to give information, produce a document or thing or attend an interview in accordance with a notice given to the person under section 24F; and
(b) the person fails to comply with the requirement.
Penalty: 30 penalty units.
(2) Subsection (1) does not apply if it is not reasonably practicable for the person to comply with the requirement.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
24FC Interviews
Conduct of interview
(1) If a person (the interviewee) is required under section 24F to attend an interview with an investigating Commissioner or review panel, the interview must take place in private.
(2) The Commissioner or panel may conduct the interview in such manner as the Commissioner or panel thinks fit.
(3) Subject to subsection (8), the following are entitled to be present at the interview:
(a) a support person for the interviewee;
(b) a legal practitioner engaged by the interviewee.
Note: A support person for the interviewee may be approved under subsection (4) of this section or subsection 24FI(2) (see the definition of that term in section 5).
Support persons
(4) On application by the interviewee, the Commissioner or panel must, in writing, approve a person as a support person for the interviewee if satisfied that the presence of the person at the interview would not prejudice any process, or any action, taken in accordance with Division 3 or 4.
(5) An approval under subsection (4) is not a legislative instrument.
Legal practitioners
(6) If a legal practitioner engaged by the interviewee is present during the interview, the Commissioner or panel must:
(a) allow the interviewee to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and
(b) allow the legal practitioner to give advice to the interviewee.
Directions about conduct that unreasonably interferes with interview
(7) If:
(a) a person mentioned in subsection (3) is present during the interview; and
(b) the Commissioner or panel is of the opinion that the person is engaging in conduct that unreasonably interferes with the interview;
the Commissioner or panel may direct the person to cease engaging in the conduct.
(8) A person who fails to comply with a direction under subsection (7) is no longer entitled to be present during the interview.
24FD Retaining documents and things
(1) This section applies if a document or thing is produced to an investigating Commissioner or review panel under section 24F.
(2) The Commissioner or panel:
(a) may make copies of the document or thing, or take extracts from the document; and
(b) may retain possession of the document or thing for such period as is necessary for the purposes of the performance of the Commissioner’s or panel’s functions.
(3) While the Commissioner or panel retains the document or thing, the Commissioner or panel must allow a person who would otherwise be entitled to inspect the document or view the thing:
(a) to do so at all reasonable times; and
(b) to copy the document or thing.
(4) Subsection (3) does not apply if:
(a) possession of the document or thing by the person could constitute an offence; or
(b) inspecting or copying the document or thing (as the case requires) would compromise or damage the document or thing; or
(c) the Commissioner or panel is satisfied that allowing the person to inspect the document or view the thing would prejudice the performance of the Commissioner’s or panel’s functions.
24FE When documents and things must be returned
(1) This section applies if an investigating Commissioner or review panel is satisfied that a document or thing produced to the Commissioner or panel under section 24F is not required (or is no longer required) for the purposes of the performance of the Commissioner’s or panel’s functions.
(2) The Commissioner or panel must take reasonable steps to return the document or thing to the person from whom it was received, or to the owner if that person is not entitled to possess it.
(3) However, the Commissioner or panel does not have to take those steps if:
(a) possession of the document or thing by the person could constitute an offence; or
(b) the document or thing may otherwise be retained, destroyed or disposed of under a law of the Commonwealth or a State or a Territory, or a court/tribunal order; or
(c) the document or thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
24FF Privilege against self‑incrimination and legal professional privilege not abrogated
Self‑incrimination
(1) Nothing in this Subdivision affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information or the production of the document might tend to incriminate the person.
Legal professional privilege
(2) Nothing in this Subdivision affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
Other legislation not affected
(3) The fact that this section is included in this Subdivision does not imply that the privilege against self‑incrimination or legal professional privilege is abrogated in:
(a) any other provision of this Act; or
(b) any other Act.
Subdivision B—Confidentiality notices
24FG Application of Subdivision
This Subdivision applies to information that:
(a) relates to any process, or any action, taken in accordance with Division 3, 4 or 5 in relation to a conduct issue that was or is before the IPSC; and
(b) has not been lawfully made available to the public.
24FH Confidentiality notices
Confidentiality notices
(1) The responsible Commissioner or Commissioners may, by written notice given to a person (the recipient), impose such conditions on:
(a) the making of a record of the information by the recipient or other persons; and
(b) the disclosure of the information by the recipient or other persons;
as the responsible Commissioner or Commissioners considers appropriate to do any or all of the following:
(c) prevent prejudice to:
(i) any process, or any action, taken in accordance with Division 3, 4 or 5; or
(ii) the fair trial of any person or the impartial adjudication of a matter; or
(iii) the proper enforcement of the law;
(d) protect the identity of:
(i) a complainant, respondent or any other person affected by the conduct issue; or
(ii) any person who has given, or who the responsible Commissioner or Commissioners reasonably believe may give, information to the responsible Commissioner or Commissioners in connection with the conduct issue;
(e) prevent unreasonable detriment to a complainant, respondent or any other person affected by the conduct issue;
(f) prevent the publication of sensitive information.
(2) A notice under subsection (1) must:
(a) set out the effect of sections 24FI (disclosures etc. to which confidentiality notices do not apply) and 24FJ (offence—failure to comply with confidentiality notice); and
(b) specify the period for which a condition is in force.
Period of notice
(3) The period specified in the notice must end:
(a) if paragraph (b) does not apply—no later than the end of the day on which the conduct issue is concluded; or
(b) if the responsible Commissioner or Commissioners are satisfied that it is appropriate for the period to end at a later time in order to do any or all of the things mentioned in paragraphs (1)(c) to (f)—that later time.
(4) For the purposes of paragraph (3)(a), a conduct issue is concluded:
(a) if a decision on the issue is made under section 24CY and an application under section 24DA for review of the decision is made within the period specified in paragraph 24DA(4)(c)—when that application is finally determined; or
(b) if a decision on the issue is made under section 24CY and an application under section 24DA for review of the decision is not made within the period specified in paragraph 24DA(4)(c)—when that period ends; or
(c) otherwise—when the issue is dealt with in accordance with section 24CF.
24FI Disclosures etc. to which confidentiality notices do not apply
(1) A condition imposed on a person (the recipient) under subsection 24FH(1) does not apply to:
(a) the making of a record or disclosure:
(i) that is required or authorised by or under this Act, another law of the Commonwealth, a law of a State or Territory or a court/tribunal order; or
(ii) that is required by or under, or for the purpose of obtaining advice in relation to, a contract of insurance; or
(iii) that is required by or under, or for the purpose of obtaining advice in relation to, a policy of insurance issued by the Commonwealth; or
(iv) to protect life or safety; or
(b) the making of a disclosure:
(i) to the PWSS for the purpose of a service provided under section 15 (support function) to the recipient; or
(ii) by the recipient to the recipient’s employer, or to a person who supervises or manages the recipient, if the disclosure is of information that does not reveal the conduct issue; or
(iii) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to a conduct issue, or a process or action taken in accordance with Division 3, 4 or 5; or
(iv) to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling); or
(v) by the recipient to a support person for the recipient.
Note: A support person for the recipient may be approved under subsection 24FC(4) or subsection (2) of this section (see the definition of that term in section 5).
(2) On application by the recipient, the responsible Commissioner or Commissioners must, in writing, approve a person as a support person for the recipient if satisfied that:
(a) the recipient intends to make the disclosure to the person for the purpose of seeking support from the person; and
(b) the making of the disclosure to the person would not prejudice any process, or any action, taken in accordance with Division 3, 4 or 5.
(3) An approval under subsection (2) is not a legislative instrument.
24FJ Offence—failure to comply with confidentiality notice
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct breaches a condition under subsection 24FH(1).
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
Subdivision C—Secrecy of information
24FK Unauthorised disclosure of information
(1) A person who is or was an entrusted person commits an offence if:
(a) the person (whether directly or indirectly and whether while, or after ceasing to be, an entrusted person):
(i) makes a record of any information; or
(ii) discloses any information; and
(b) the person obtained the information in the course of or for the purposes of:
(i) performing functions or duties, or exercising powers, under this Part; or
(ii) assisting another person to perform functions or duties, or exercise powers, under this Part.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(2) Subsection (1) does not apply if the making of the record, or the disclosing of the information, is authorised by sections 24FL to 24FR.
24FL Disclosure etc. for purposes connected with functions and powers
The person may make a record of, or disclose, information (including personal information) if:
(a) the person makes the record, or discloses the information, for purposes connected with the performance or exercise of functions or powers under this Act or another Act; and
(b) the information does not relate to a conduct issue involving conduct that may constitute a serious offence against another person.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).
24FM Disclosure etc. of information relating to serious offences
(1) This section applies if the information relates to a conduct issue involving conduct that may constitute a serious offence against another person (the potential victim).
(2) The person may make a record of the information (including personal information) for purposes connected with the performance or exercise of functions or powers under this Act or another Act.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) The person may disclose the information (including personal information) if the disclosure is:
(a) other than to the Australian Federal Police or the police force or police service of a State or Territory; and
(b) for purposes connected with the performance or exercise of functions or powers under this Act or another Act.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(4) The person may disclose the information (including personal information) to the Australian Federal Police, or the police force or police service of a State or Territory, if any of the following applies:
(a) the potential victim consents to the disclosure;
(b) the disclosure is for the purposes of deciding how to deal with the conduct issue;
(c) the disclosure is required by or under another law of the Commonwealth, a law of a State or a Territory, or a court/tribunal order.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
24FN Disclosure etc. required or authorised by law
(1) The person may make a record of, or disclose, information (including personal information) if the making of the record or the disclosure is required or authorised under this Act or another Act.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(2) To avoid doubt, and without limiting subsection (1), the disclosure of information is authorised under this Act if:
(a) the investigating Commissioner refers a conduct issue to another person in accordance with this Act; and
(b) the information is disclosed as part of the referral; and
(c) the investigating Commissioner is satisfied that the disclosure is necessary to enable the other person to take appropriate action in relation to the issue.
24FO Disclosure etc. to protect life, health or safety
The person may make a record of, or disclose, information (including personal information) if the person reasonably believes that it is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).
24FP Disclosure etc. of publicly available information
The person may make a record of, or disclose, information (including personal information) if the information has already been lawfully made available to the public.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).
24FQ Disclosure etc. to comply with requirement to produce
The person may make a record of, or disclose, information (including personal information) to a court, tribunal, authority or person that has the power to require the production of documents or the answering of questions.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).
24FR Disclosure to employers
Disclosure with consent
(1) The person may disclose information (including personal information) that relates to a conduct complaint or conduct issue referral if:
(a) the disclosure is to the employer of:
(b) the complainant has consented to the disclosure; and
(c) the disclosure is in accordance with that consent.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Disclosure for work health and safety reasons
(2) The person may disclose information (including personal information) that relates to a conduct complaint or conduct issue referral if:
(a) the disclosure is to the employer of:
(b) the person is satisfied that the information is relevant to a duty or obligation of the employer under a work health and safety law.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Section 24F - Parliamentary Workplace Support Service Amendment (Independent Parliamentary Standards Commission) Act 2024 - Notice to give information etc. | Zoe