Public Interest Disclosure Act 2013 (Cth)

Public Interest Disclosure Act 2013 No. 133, 2013 Compilation No. 19 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 About this compilation This compilation This is a compilation of the Public Interest Disclosure Act 2013 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Introduction Division 1—Preliminary matters 1 Short title 2 Commencement 3 Crown to be bound 4 Extension to external Territories 5 Extension to things outside Australia Division 2—Objects 6 Objects Division 3—Overview 7 Simplified outline of this Act 7A Role of the Ombudsman under the Ombudsman Act 1976 7B Role of the IGIS under the Inspector‑General of Intelligence and Security Act 1986 Division 4—Definitions 8 Definitions Part 2—Protection of disclosers and witnesses Division 1—Protections 9 Simplified outline Subdivision A—Immunity from liability 10 Protection of disclosers 11 Liability for false or misleading statements etc. unaffected 11A Designated publication restrictions 12 Discloser's liability for own conduct not affected 12A Witnesses—immunity from liability etc. 12B Witnesses—exceptions to immunities Subdivision B—Protection from reprisals 13 What constitutes taking a reprisal 14 Compensation 15 Injunctions, apologies and other orders 16 Reinstatement 17 Multiple orders 18 Costs only if proceedings instituted vexatiously etc. 19 Reprisals in relation to disclosures—offences 19A Interaction between civil remedies and offences Subdivision C—Protecting the identity of disclosers 20 Disclosure or use of identifying information 21 Identifying information not to be disclosed etc. to courts or tribunals Subdivision D—Interaction with the Fair Work Act 2009 22 Interaction with protections under Part 3‑1 of the Fair Work Act 2009 22A Interaction with remedies under the Fair Work Act 2009 Subdivision E—Miscellaneous 23 Claims for protection 24 Protections have effect despite other Commonwealth laws Division 2—Public interest disclosures 25 Simplified outline Subdivision A—Public interest disclosures 26 Meaning of public interest disclosure 27 Associated allegations 28 How a public interest disclosure may be made Subdivision B—Disclosable conduct 29 Meaning of disclosable conduct 29A Meaning of personal work‑related conduct 30 Officers or employees of a contracted service provider 31 Disagreements with government policies etc. 32 Conduct connected with courts or Commonwealth tribunals 33 Conduct connected with intelligence agencies Subdivision C—Internal disclosures: authorised internal recipients 34 Meaning of authorised internal recipient 35 When conduct relates to an agency 36 Meaning of authorised officer Subdivision D—Intelligence information 41 Meaning of intelligence information Part 3—Investigations Division 1—Allocating the handling of disclosures 42 Simplified outline 43 Allocation of disclosure—decision by authorised officer 44 Allocation of disclosure—notice of decision to allocate 44A Allocation of disclosure—decision not to allocate 44B Non‑allocation of disclosure subject to stop action direction under the NACC Act 45 Reallocation of disclosures 45A Conduct related to intelligence agencies and agencies with intelligence functions—notice to the IGIS Division 2—The obligation to investigate disclosures 46 Simplified outline 47 Principal officer must investigate disclosures 48 Discretion not to investigate 49 Investigative agency using separate investigative powers 50 Notification to discloser 50AA Decision not to investigate—referral for investigation under another law or power 50A Notification to Ombudsman or IGIS about investigation 51 Report of investigation 52 Time limit for investigations under this Division 53 Conduct of investigations under this Division 54 Adoption of findings of another investigation Division 3—Miscellaneous 55 The Ombudsman and the IGIS—recommendations 56 Disclosure to a member of an Australian police force Part 4—Administrative matters Division 1—Additional obligations and functions 58 Simplified outline 59 Additional obligations of principal officers 60 Additional obligations of authorised officers 60A Additional obligations of supervisors 61 Additional obligations of public officials 62 Additional functions of the Ombudsman 63 Additional functions of the IGIS Division 2—Treatment of information 64 Simplified outline of this Division 65 Sharing information and documents between agencies 67 Secrecy—legal practitioners Division 3—Officials and agencies 68 Simplified outline Subdivision A—Public officials 69 Public officials 70 Individuals taken to be public officials Subdivision B—Agencies and prescribed authorities 71 Meaning of agency 72 Meaning of prescribed authority Subdivision C—Principal officers 73 Meaning of principal officer Subdivision D—Machinery of government changes 73A Scope of Subdivision 73B Machinery of government changes—conduct relating to affected agency 73C Machinery of government changes—disclosures made before change 73D Machinery of government changes—information transfer Part 5—Miscellaneous 74 Ombudsman may determine standards 75 Restriction on the application of secrecy provisions 76 Annual reports by the Ombudsman 76A Six‑monthly reports by the Ombudsman 77 Delegations 78 Liability for acts and omissions 79 Concurrent operation of State and Territory laws 80 Law relating to legal professional privilege not affected 82 Other investigative powers etc. not affected 82A Review of operation of Act 83 The PID rules Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes Part 1—Introduction Division 1—Preliminary matters 1 Short title This Act may be cited as the Public Interest Disclosure Act 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. 15 July 2013 2. Sections 3 to 83 A single day to be fixed by Proclamation. 15 January 2014 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. 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 (4). Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. Commonwealth tribunal means: (a) a body established as a tribunal by or under a law of the Commonwealth; or (b) a statutory officeholder prescribed by the PID rules for the purposes of this paragraph. completed, in relation to an investigation under Division 2 of Part 3, has the meaning given by subsection 52(2). contracted service provider has the meaning given by subsection 30(2). corruption issue has the same meaning as in the National Anti‑Corruption Commission Act 2022. 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 Defence Force Cadets. Department means: (a) a Department of State (including the Defence Department), excluding any part that is itself a Commonwealth entity; or (b) a Department of the Parliament that is established under the Parliamentary Service Act 1999. designated publication restriction means any of the following: (a) section 121 of the Family Law Act 1975; (b) section 91X of the Migration Act 1958; (c) section 110X of the Child Support (Registration and 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, 38J 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 70(1) or (2) or 157(3) of the Administrative Review Tribunal Act 2024; (ia) section 21C of the Australian Crime Commission Act 2002; (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) section 98 or 101, or subsection 233(3), of the National Anti‑Corruption Commission Act 2022. detriment has a meaning affected by section 13. 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 Division 2 of 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. emergency disclosure means a public interest disclosure covered by item 3 of the table in subsection 26(1). engage in conduct means: (a) do an act; or (b) omit to do an act. examiner of ACIC has the meaning given by the Australian Crime Commission Act 2002. external disclosure means a public interest disclosure covered by item 2 of the table in subsection 26(1). 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 (c) a territory outside Australia that is to some extent 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. 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 (c) the Australian Geospatial‑Intelligence Organisation; or (d) the Defence Intelligence Organisation; or (e) the Australian Signals Directorate; or (f) the Office of National Intelligence. intelligence function, in relation to ACIC or the Australian Federal Police, has the meaning given by the Inspector‑General of Intelligence and Security Act 1986. intelligence information has the meaning given by section 41. internal disclosure means a public interest disclosure that: (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) and (3). investigative agency means: (a) the Ombudsman; or (b) the IGIS; or (c) an agency that is prescribed by the PID rules to be an investigative agency for the purposes of this Act. judicial officer has the meaning given by subsection 32(2). legal practitioner disclosure means a public interest disclosure covered by item 4 of the table in subsection 26(1). 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. machinery of government change: see section 73A. member of the staff of the chief executive officer of a court or Commonwealth tribunal has the meaning given by subsection 32(3). NACC disclosure has the same meaning as in the National Anti‑Corruption Commission Act 2022. new agency, in relation to a machinery of government change: see section 73A. 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. personal work‑related conduct: see section 29A. 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. prescribed authority has the meaning given by section 72. principal officer, in relation to an agency, has the meaning given by section 73. provides assistance: for when a person provides assistance in relation to a disclosure, see section 12A (Witnesses—immunity from liability etc.). 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. reprisal: see the definition of takes a reprisal in section 13. 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 officeholder has the meaning given by subsection 69(2). stop action direction under the NACC Act means a direction under subsection 43(1) of the National Anti‑Corruption Commission Act 2022 (including as applied by section 211 of that Act) to stop taking action in relation to a corruption issue or a NACC corruption issue. supervisor, in relation to a person who makes a disclosure, is a public official who supervises or manages the person making the disclosure. takes a reprisal has the meaning given by section 13. transferred function, in relation to a machinery of government change: see section 73A. Part 2—Protection of disclosers and witnesses 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 or providing assistance in relation to a public interest disclosure. It is an offence 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 and Family Court of Australia (Division 2) 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 and the authorised officers of an agency have a duty to protect a person who is, or has been, a public official belonging to the agency from reprisals relating to a public interest disclosure (see subsections 59(9) and 60(2)). 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 (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 knowingly 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. 11A Designated publication restrictions Section 10 does not apply to civil, criminal or administrative liability (including disciplinary action) for making a disclosure that contravenes a designated publication restriction if the person making the disclosure: (a) knows that the disclosure contravenes the designated publication restriction; and (b) does not have a reasonable excuse for that contravention. 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. 12A Witnesses—immunity from liability etc. Scope (1) This section applies to an individual (the witness) who provides assistance in relation to a public interest disclosure (other than the individual who makes the disclosure), subject to section 12B. Meaning of provides assistance (2) A person provides assistance in relation to a public interest disclosure if the person gives information or produces a document or other thing, or answers a question, that the person considers on reasonable grounds to be relevant to: (a) the making of a decision in relation to the allocation of a disclosure under section 43; or (b) a disclosure investigation or a proposed disclosure investigation; or (c) a review or proposed review by the Ombudsman or the IGIS, under subsection 55(3), about the handling of a disclosure. Immunity from civil, criminal or administrative action (3) The witness is not subject to any civil, criminal or administrative liability (including disciplinary action) because of the assistance provided. Immunity from enforcement of remedies or rights (4) No contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the witness on the basis of the assistance provided. Absolute privilege (5) Without limiting subsections (3) and (4): (a) the witness has absolute privilege in proceedings for defamation in respect of the assistance provided; and (b) a contract to which the witness is a party must not be terminated on the basis that the assistance provided constitutes a breach of the contract. 12B Witnesses—exceptions to immunities Scope (1) This section applies to an individual (the witness) who provides assistance in relation to a public interest disclosure (other than the individual who makes the disclosure). False or misleading statements etc.