Public Interest Disclosure Act 2013

Overview

The Public Interest Disclosure Act 2013 was enacted to provide a comprehensive framework to facilitate the disclosure and investigation of wrongdoing and maladministration within the Commonwealth public sector. Enacted by the Parliament of Australia, this Act aims to promote integrity and accountability, and to protect public officials and former public officials who make disclosures from adverse consequences. The Act ensures that such disclosures are properly investigated and addressed. The Act covers five types of public interest disclosures, including internal and external disclosures, emergency disclosures, legal practitioner disclosures, and disclosures concerning the National Anti-Corruption Commission. It defines disclosable conduct, which encompasses illegal or corrupt conduct, wastage of money or property, unreasonable danger or risk to health and safety, and danger or increased risk to the environment. The Act also provides immunity from liability for disclosers and witnesses, protection from reprisals, and mechanisms for the investigation and handling of disclosures, including the allocation of disclosures to appropriate agencies and the obligations of principal officers to investigate. The Act further outlines the roles of the Ombudsman and the Inspector-General of Intelligence and Security in reviewing the handling of disclosures and making recommendations.

Scope and Application

The Public Interest Disclosure Act 2013 applies to all Commonwealth agencies, prescribed authorities, and public officials, including current and former public servants, members of the Defence Force, employees of the Australian Federal Police, and other individuals who exercise powers or perform functions under Commonwealth law. The Act extends to the external Territories and actions taken outside Australia. Its primary purpose is to facilitate the disclosure and investigation of wrongdoing and maladministration within the Commonwealth public sector. The Act provides various forms of protection to individuals who make public interest disclosures, such as immunity from liability, protection from reprisals, and measures to safeguard the identity of disclosers. The Act also outlines the process for allocating and investigating disclosures, the duties of principal officers, and the role of the Ombudsman and the Inspector-General of Intelligence and Security (IGIS) in reviewing and recommending actions related to disclosures. Notably, the Act explicitly excludes certain conduct, such as disagreements with government policies and conduct related to the proper performance of intelligence functions, from being classified as disclosable conduct. Furthermore, the Act does not limit or affect other Commonwealth laws, including those relating to legal professional privilege and investigative powers. The Act is complemented by subordinate instruments, such as the Public Interest Disclosure Rules, which prescribe matters necessary for the operation of the Act. The Act is not intended to exclude or limit the operation of State and Territory laws and includes provisions for the concurrent operation of such laws. The Act mandates the Ombudsman to prepare annual and six-monthly reports on its operation, and the Minister is required to review the Act's operation and prepare a report on the review.

Key Provisions

• The Public Interest Disclosure Act 2013 provides a legal framework for public officials and former public officials to disclose allegations of misconduct within the Commonwealth public sector. Key provisions include the protection of individuals who make public interest disclosures and those who assist in investigations, as well as the processes for handling and investigating such disclosures. Section 10 ensures that individuals who make disclosures are immune from civil, criminal, or administrative liability related to the disclosure itself, while Section 11 clarifies that this immunity does not extend to liability arising from knowingly false or misleading statements. Section 12A provides similar immunity for witnesses who assist in investigations, except in cases of knowingly false or misleading statements. Reprisals against disclosers and witnesses are prohibited under Section 13, with the Federal Court or Federal Circuit and Family Court of Australia empowered to grant civil remedies such as compensation, injunctions, and reinstatement under Sections 14, 15, and 16. It is also an offence to disclose identifying information of disclosers, with penalties set out in Section 19, which include imprisonment for up to two years or 120 penalty units, or both.
• The Act imposes obligations on agencies and their officers to investigate disclosures of disclosable conduct. An authorised officer of an agency must allocate a disclosure to one or more agencies within 14 days of receipt, as outlined in Section 43. The principal officer of the allocated agency is then required to investigate the disclosure and report the findings, unless the disclosure is determined to be frivolous or vexatious, or if the conduct has already been investigated under another law or power, as per Section 47. Failure to investigate within the specified timeframe does not invalidate the investigation. Section 48 allows the principal officer discretion not to investigate if certain conditions are met, such as the discloser not being a public official or if the conduct is not serious. Notifications about the decision to investigate or not, and reasons for such decisions, must be provided to the discloser and, if applicable, the Ombudsman or Inspector-General of Intelligence and Security (IGIS), as per Sections 50 and 50A.
• The Act also outlines the roles of the Ombudsman and the IGIS in reviewing the handling and investigation of disclosures. Under Section 55, these entities can make recommendations to principal officers regarding the allocation and investigation of disclosures. Additionally, Section 56 allows for the disclosure of information to a member of an Australian police force if a serious offence is suspected during an investigation, while Section 57, which previously allowed for the delegation of functions to a person who is not a public official, has been repealed.
• The Act imposes civil and criminal penalties for breaches. For instance, taking reprisals against a person because of a public interest disclosure is an offence under Section 19, with penalties including imprisonment for up to two years or 120 penalty units, or both. Similarly, disclosing or using identifying information of disclosers without appropriate authorisation is an offence under Section 20, carrying a penalty of imprisonment for up to six months or 30 penalty units, or both. These penalties are designed to deter reprisals and protect the confidentiality of disclosers. The Act also provides for the Ombudsman to determine standards relating to the conduct of investigations and the preparation of reports, as mentioned in Section 74. Furthermore, Section 78 stipulates that officers and officials performing their duties under the Act in good faith are not liable for any acts or omissions, except in cases of breaching designated publication restrictions.

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