33Detrimental action offence

#### 33 Detrimental action offence 33 Detrimental action offence > > (1) A person must not take detrimental action against another person if— > > > > > (a) the person suspects, believes or is aware, when taking the detrimental action, that the other person or a third person— > > > > > > > (i) has made, may have made, may make or proposes to make a public interest disclosure, or > > > > > > > (ii) is, has been or may be investigating, or proposes to investigate, serious wrongdoing, whether or not the investigation relates to or arises from the making of a voluntary public interest disclosure or constitutes dealing with a voluntary public interest disclosure, and > > > > > (b) the suspicion, belief or awareness is a contributing factor to the taking of the detrimental action. > > > > Maximum penalty—200 penalty units or imprisonment for 5 years, or both. > > > > Note. > > > > It is not a detrimental action offence to take reasonable management action in relation to a public official. See section 31(2). > > > (2) The fact the suspicion or belief was mistaken is not a defence to a prosecution for a detrimental action offence. > > > (3) A detrimental action offence is an indictable offence. > > > (4) In a prosecution for a detrimental action offence, the accused bears the onus of proving, in relation to detrimental action established by the prosecution to have been taken by the accused— > > > > > (a) the accused did not have the suspicion, belief or awareness mentioned in subsection (1)(a), or > > > > > (b) if the accused had the suspicion, belief or awareness—the suspicion, belief or awareness was not a contributing factor to the taking of the detrimental action. > > > (5) It is a defence to a prosecution for a detrimental action offence that the detrimental action constituted appropriate corrective action in accordance with section 66. > > > (6) Proceedings for a detrimental action offence may be instituted at any time within 3 years after the offence is alleged to have been committed. > > > (7) A person who has been convicted or acquitted of a detrimental action offence is not liable to be convicted of an offence against the following provisions on the same, or substantially the same, facts relied on as evidence of commission of the detrimental action offence— > > > > > (a) the [Independent Commission Against Corruption Act 1988](/view/html/inforce/current/act-1988-035), section 79I, > > > > > (b) the [Ombudsman Act 1974](/view/html/inforce/current/act-1974-068), section 31R, > > > > > (c) the [Law Enforcement Conduct Commission Act 2016](/view/html/inforce/current/act-2016-061), section 97H, > > > > > (d) the [Police Act 1990](/view/html/inforce/current/act-1990-047), section 206. > > > (8) A person who has been convicted or acquitted of an offence against a provision mentioned in subsection (7) is not liable to be convicted of a detrimental action offence on the same, or substantially the same, facts relied on as evidence of commission of the offence of which the person was convicted or acquitted. > > Note. > > See also the [Government Sector Employment Act 2013](/view/html/inforce/current/act-2013-040), section 69(1), definition of misconduct.