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Note: This table relates only to the provisions of this Act as originally enacted.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.

5 Extension to things outside Australia

This Act extends to acts, omissions, matters and things outside Australia.

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 former public officials; and (c) to ensure that public officials, and former public officials, who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and (d) to ensure that disclosures by public officials, and former public officials, are properly investigated and dealt with.

Division 3—Overview

7 Simplified outline of this Act

General

This Act provides a framework for current and former public officials to disclose allegations of misconduct (“disclosable conduct”) in the Commonwealth public sector.

Agencies are required to investigate disclosures of potential disclosable conduct.

Protection from reprisals is provided for current and former public officials making disclosures, and persons providing assistance in disclosure investigations and reviews.

What is a public interest disclosure?

A public interest disclosure is a disclosure of information relating to disclosable conduct alleged to have occurred within a Commonwealth agency (for relevant agencies, see sections 71 and 72).

There are 5 kinds of public interest disclosure (see section 26), which are as follows:

(a) an internal disclosure (disclosed within an agency);

(b) an external disclosure (disclosed outside Government);

(c) an emergency disclosure;

(d) a legal practitioner disclosure;

(e) a NACC disclosure.

What is disclosable conduct?

Disclosable conduct, broadly speaking, includes conduct that:

(a) is illegal or corrupt; or

(b) results in a wastage of money or property; or

(c) results in unreasonable danger or risk to health and safety; or

(d) results in danger, or an increased risk of danger, to the environment.

See section 29 for more detail relating to disclosable conduct.

Personal work‑related conduct (for example, bullying or harassment) is not generally disclosable conduct. However, personal work‑related conduct may be treated as disclosable conduct in some circumstances. See subsection 29(2A) and section 29A for more detail relating to personal work‑related conduct.

Investigation of internal disclosures

Generally, this Act provides for a disclosure of disclosable conduct to be first investigated internally, as an internal disclosure.

Internal disclosures may be made by public officials (and former public officials) to supervisors and authorised officers of Commonwealth agencies, including, in appropriate cases, an authorised officer of the Ombudsman and the IGIS.

Part 3 deals with the allocation of the handling of internal disclosures to appropriate agencies, and their investigation by the principal officers of those agencies. Investigative agencies may instead use their own investigative powers to investigate disclosures.

If an authorised officer or principal officer of an agency considers that the conduct disclosed would be more appropriately investigated under another law or power, the officer must take reasonable steps to refer the conduct, or to facilitate its referral, for investigation under the other law or power.

Notice of decisions related to the allocation and investigation of disclosures must be given to the relevant discloser and:

(a) the Ombudsman; or

(b) the IGIS, for disclosures related to intelligence agencies, or ACIC or the Australian Federal Police in relation to that agency’s intelligence functions.

The Ombudsman and the IGIS may also make recommendations to principal officers relating to the allocation and investigation of disclosures.

Administrative support for the investigation and review of internal disclosures

Part 4 provides for the following:

(a) obligations of principal officers, authorised officers and supervisors of public officials to facilitate and support the making of internal disclosures;

(b) functions of the Ombudsman and the IGIS to facilitate and support the operation of this Act;

(c) the sharing of information between relevant agencies, the Ombudsman and the IGIS to facilitate the investigation and review of internal disclosures;

(d) the public officials, agencies and principal officers covered by this Act;

(e) how this Act deals with disclosures in relation to agencies that are affected by machinery of government changes.

Protection of disclosers and witnesses

The protection provisions in Division 1 of Part 2 relate to all forms of public interest disclosure (whether internal, external, emergency, legal practitioner or NACC disclosure). They deal with the protection of disclosers, and witnesses (that is, persons providing assistance in disclosure investigations and reviews), from reprisals by providing for the following:

(a) immunity from liability that is related to disclosures and such assistance;

(b) criminal offences for such reprisals, and for disclosing the identity of disclosers;

(c) civil remedies for reprisals related to disclosures.

Other matters

Part 5 deals with additional matters related to the administration of this Act, including regular reports to Parliament by the Ombudsman.

7A Role of the Ombudsman under the Ombudsman Act 1976

(1) A complaint may be made to the Ombudsman under the Ombudsman Act 1976 about the handling by an agency of a disclosure under this Act, including complaints about the following matters: (a) whether the disclosure has been handled reasonably; (b) the allocation of the disclosure (including any delay or failure to allocate the disclosure); (c) the investigation of the disclosure (including any delay or failure to investigate the disclosure); (d) compliance with this Act by the agency or any of its officers, including its principal officer (including any failure to comply with this Act); (e) any other matter relating to the handling of the disclosure. (2) Subsection (1) does not apply in relation to: (a) the IGIS; or (b) an intelligence agency; or (c) ACIC or the Australian Federal Police if the disclosure relates to the intelligence functions of that agency. (3) This section does not limit section 5 or 5A of the Ombudsman Act 1976.

Note: Section 5 of the Ombudsman Act 1976 sets out the functions of the Ombudsman under that Act. Section 5A of that Act has the effect of providing that those functions extend to investigating complaints relating to the handling of disclosures under this Act.

7B Role of the IGIS under the Inspector‑General of Intelligence and Security Act 1986

(1) A complaint may be made to the IGIS under the Inspector‑General of Intelligence and Security Act 1986 about the handling of a disclosure under this Act by: (a) an intelligence agency; or (b) ACIC or the Australian Federal Police if the disclosure relates to the intelligence functions of that agency. (2) Without limitation, the complaint may relate to any of the following matters: (a) whether the disclosure has been handled reasonably; (b) the allocation of the disclosure (including any delay or failure to allocate the disclosure); (c) the investigation of the disclosure (including any delay or failure to investigate the disclosure); (d) compliance with this Act by the agency or any of its officers, including its principal officer (including any failure to comply with this Act); (e) any other matter relating to the handling of the disclosure. (3) This section does not limit section 8 or 8A of the Inspector‑General of Intelligence and Security Act 1986.

Note: Section 8 of the Inspector‑General of Intelligence and Security Act 1986 sets out the functions of the Inspector‑General of Intelligence and Security under that Act. Section 8A of that Act has the effect of providing that those functions extend to investigating complaints relating to the handling of disclosures under this Act.

Division 4—Definitions

8 Definitions

In this Act:

ACIC means the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.

affected agency, in relation to a machinery of government change: see section 73A.

agency has the meaning given by section 71.

allocation, in relation to a disclosure:

(a) means the allocation of the handling of the disclosure under section 43; and
(b) includes the reallocation of the handling of the disclosure as decided under section 45.

Example: One situation in which a disclosure may be reallocated under section 45 is in response to a recommendation by the Ombudsman or the IGIS under section 55.

another law or power means:

(a) a law of the Commonwealth (including procedures under such a law), other than this Act; or
(b) the executive power of the Commonwealth.

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.

change time, in relation to a machinery of government change: see section 73A.

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

Commonwealth company has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

Commonwealth contract has the meaning given by subsections 30(3) and (

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