Public Interest Disclosures Act 2002
An Act to encourage and facilitate disclosures of improper conduct by public officers and public bodies, to protect persons making those disclosures and others from reprisals, to provide for the matters disclosed to be properly investigated and dealt with and for other purposes
[Royal Assent 25 June 2002]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Public Interest Disclosures Act 2002 .
This Act commences on a day to be proclaimed.
(1) In this Act, unless the contrary intention appears –agency means a State Service Agency and includes the police force;contractor means a person who at any time has entered into a contract with a public body for the supply of goods or services to, or on behalf of, the public body;corrupt conduct means –(a) conduct of a person (whether or not a public officer) that adversely affects, or could adversely affect, either directly or indirectly, the honest performance of a public officer's or public body's functions; or(b) conduct of a public officer that amounts to the performance of any of his or her functions as a public officer dishonestly or with inappropriate partiality; or(c) conduct of a public officer, a former public officer or a public body that amounts to a breach of public trust; or(d) conduct of a public officer, a former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their functions as such (whether for the benefit of that person or body or otherwise); or(e) a conspiracy or attempt to engage in conduct referred to in paragraph (a) , (b) , (c) or (d) ;councillor has the same meaning as in the Local Government Act 1993 ;detrimental action includes –(a) action causing injury, loss or damage; and(b) intimidation or harassment; and(c) discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including the taking of disciplinary action; and(d) threats of detrimental action;disclosed matter means a matter disclosed in a disclosure determined under Part 5 or 8 to be a public interest disclosure;improper conduct means –(a) corrupt conduct; or(b) a substantial mismanagement of public resources; or(c) conduct involving substantial risk to public health or safety; or(d) conduct involving substantial risk to the environment –that would, if proved, constitute –(e) a criminal offence; or(f) reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public officer who was, or is, engaged in that conduct;police force has the same meaning as in the Police Regulation Act 1898 and includes the Commissioner of Police, Deputy Commissioner of Police and Assistant Commissioners of Police;protected disclosure has the meaning given to it by section 14 ;public body means –but does not include a body specified in section 4(1) ;(a) an agency; or(b) the general manager of a council, but only in relation to an employee of that council; or(c) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose; or(d) a body whose members, or a majority of whose members, are appointed by the Governor or a Minister of the Crown; or(e) a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ; or(f) a State-owned company –public officer means –but does not include a person specified in section 4(2) ;(a) a member of Parliament; or(b) a councillor; or(c) a member, officer or employee of a public body; or(d) a member of the governing body of a public body; or(e) an employee of a council; or(f) the holder of an office established by or under an Act to which the right to appoint is vested in the Governor or a Minister –relevant Minister means –(a) in relation to a public body, the Minister responsible for the public body; or(b) in relation to a public officer, the Minister responsible for that public officer;State-owned company means a company incorporated under the Corporations Act that is controlled by the Crown, a Government Business Enterprise or a statutory authority or another company that is so controlled;statutory authority means a body or authority, whether incorporated or not, that is established or constituted by or under an Act or under the Royal Prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority but does not include an agency.(2) For the purposes of this Act, the general manager of a council is taken to be the chief executive officer of a public body in relation to an employee of that council.
4. Exclusion of certain persons and bodies
(1) The following bodies are not public bodies for the purposes of this Act:(a) a court;(b) the Tasmanian Industrial Commission;(c) a tribunal;(d) a body prescribed by regulation made under this Act.(2) The following persons are not public officers for the purposes of this Act:(a) a judge of the Supreme Court;(b) the Master of the Supreme Court;(c) a magistrate;(d) the Director of Public Prosecutions;(e) the Auditor-General;(f) the Ombudsman;(g) the State Service Commissioner;(h) an officer appointed under the Parliamentary Privilege Act 1898 .
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - Disclosures of improper conduct and detrimental action
6. Disclosures about improper conduct or detrimental action
(1) A public officer who believes on reasonable grounds that another public officer or a public body –may disclose that improper conduct or detrimental action in accordance with this Part.(a) has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or(b) has taken, is taking or proposes to take detrimental action in contravention of section 19 –(2) A contractor who believes on reasonable grounds that the public body with which the contractor has entered into a contract –may disclose that improper conduct or detrimental action in accordance with this Part.(a) has engaged, is engaging or proposes to engage in improper conduct in its capacity as a public body; or(b) has taken, is taking or proposes to take detrimental action in contravention of section 19 –
7. Persons to whom disclosures may be made
(1) Subject to this section, a disclosure under this Part may be made to –(a) the Ombudsman; or(b) if the disclosure relates to a member, officer or employee of a public body other than the police force, that public body or the Ombudsman; or(c) if the disclosure relates to a member, officer or employee of a public body that is a State Service Agency, that public body, the Ombudsman or the State Service Commissioner.(2) A disclosure that relates to a member of the police force, other than the Commissioner of Police, is to be made to the Commissioner of Police.(3) A disclosure that relates to the Commissioner of Police is to be made to the Ombudsman.(4) A disclosure that relates to a member of Parliament is to be made to –(a) the President of the Legislative Council, if the member is a member of the Legislative Council; or(b) the Speaker of the House of Assembly, if the member is a member of the House of Assembly.(5) A disclosure that relates to a councillor is to be made to the Ombudsman.(6) A disclosure –(a) may be made orally or in writing; and(b) is to be made in accordance with prescribed procedure.(7) A disclosure made in relation to a member of Parliament is not to be taken to be a contempt of Parliament.
A person to whom a disclosure may be made under this Part may receive an anonymous disclosure.
9. Disclosure may be made where identity of person not known
A person may make a disclosure under this Part even if the person cannot identify the person or body to whom or to which the disclosure relates.
10. Disclosures cannot be made about past conduct
A person may not make a disclosure under this Part about conduct that has occurred more than 3 years before the commencement of this Act.
11. Legal professional privilege not affected
Nothing in this Act affects the law relating to legal professional privilege.
12. Disclosure to Commissioner of Police taken to be disclosure to public body
A person who makes a disclosure to the Commissioner of Police in accordance with this Part is taken to have made that disclosure to a public body in accordance with this Part and in such a case the Commissioner of Police is taken to be a public body for the purposes of this Act.
PART 3 - Protection
This Part only applies to a protected disclosure.
A protected disclosure is a disclosure made in accordance with Part 2 .
15. Certain further information also protected
(1) Subject to section 24 , if a person who makes a disclosure in accordance with Part 2 provides further information relating to that disclosure to a person or body specified in subsection (2) , that further information is to be treated as if it were a protected disclosure for the purposes of this Part.(2) Subsection (1) applies to further information provided to –(a) the President of the Legislative Council; or(b) the Speaker of the House of Assembly; or(c) the Ombudsman; or(d) the State Service Commissioner; or(e) the Commissioner of Police; or(f) a public body.
A person who makes a protected disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the protected disclosure.
17. Confidentiality provisions do not apply
(1) Without limiting section 16 , a person who makes a protected disclosure does not by doing so –(a) commit an offence under a provision of any other Act that imposes a duty to maintain confidentiality with respect to a matter or any other restriction on the disclosure of information; or(b) breach an obligation by way of oath or rule of law or practice or under an agreement requiring him or her to maintain confidentiality or otherwise restricting the disclosure of information with respect to a matter.(2) Subsection (1) does not apply to a person who makes a disclosure of information to which a protected disclosure relates to a person other than the person to whom the disclosure was originally made.
Despite anything to the contrary in this Part, a person's liability for his or her own conduct is not affected by the person's disclosure of that conduct under this Act.
(1) A person must not take detrimental action against a person in reprisal for a protected disclosure.Penalty: Fine not exceeding 240 penalty units or imprisonment for a term not exceeding 2 years, or both.(2) A person takes detrimental action in reprisal for a protected disclosure if –(a) the person takes or threatens to take the action because –(i) a person has made, or intends to make, a protected disclosure; or(ii) the person believes that a person has made or intends to make the protected disclosure; or(b) the person incites or permits another person to take or threaten to take the action for either of those reasons.(3) In determining whether a person takes detrimental action in reprisal, it is irrelevant whether or not a reason referred to in subsection (2) is the only or dominant reason as long as it is a substantial reason.
20. Proceedings for damages for reprisal
(1) A person who takes detrimental action against a person in reprisal for a protected disclosure is liable in damages to that person.(2) The damages may be recovered in proceedings as for a tort in any court of competent jurisdiction.(3) Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section.(4) The right of a person to bring proceedings for damages does not affect any other right or remedy available to the person arising from the detrimental action.
21. Application for injunction or order
A person who believes that detrimental action has been taken or may be taken against him or her in reprisal for a protected disclosure may apply to the Supreme Court for –(a) an order requiring the person who has taken the detrimental action to remedy that action; or(b) an injunction.
(1) If, on receipt of an application under section 21 , the Supreme Court is satisfied that a person has taken or intends to take detrimental action against a person in reprisal for a protected disclosure, the Court may –(a) order the person who took the detrimental action to remedy that action; or(b) grant an injunction in any terms the Court considers appropriate.(2) The Supreme Court, pending the final determination of an application under section 21 , may –(a) make an interim order in the terms of subsection (1)(a) ; or(b) grant an interim injunction.
23. Offence to reveal confidential information
(1) A person who obtains or receives information in the course of or as a result of a protected disclosure or the investigation of a disclosed matter under this Act must not disclose that information except for the purposes of –(a) the exercise of the functions under this Act of the President of the Legislative Council, the Speaker of the House of Assembly, the Ombudsman, the State Service Commissioner or a public body; or(b) any report or recommendation to be made under this Act; or(c) any report referred to in Part 9 ; or(d) any proceedings in relation to an offence against section 54 or 87 or this section or in relation to section 27 of the Commissions of Inquiry Act 1995 .Penalty: Fine not exceeding 60 penalty units or imprisonment for a term not exceeding 6 months, or both.(2) The Ombudsman or a public body must not in a report or recommendation under this Act or a report referred to in Part 9 disclose particulars likely to lead to the identification of a person who made a protected disclosure.(3) The Ombudsman or a public body must not in a report referred to in Part 9 disclose particulars likely to lead to the identification of a person against whom a protected disclosure is made.
24. Certain further disclosures and further information related to disclosures are not protected disclosures
(1) If the Ombudsman makes a determination under Part 5 that a disclosure is not a public interest disclosure, this Part does not apply to –(a) any further disclosure to the Ombudsman or a public body of the subject matter of that disclosure; or(b) the provision to the Ombudsman or the public body of any further information in relation to the subject matter of the disclosure.(2) If –then, from the end of that period, this Part does not apply to any further disclosure to the Ombudsman, or a public body, of the subject matter of that disclosure or the provision to the Ombudsman, or a public body, of any further information in relation to the subject matter of the disclosure.(a) a public body determines under Part 5 that a disclosure is not a public interest disclosure; and(b) the person who made the disclosure does not, within 28 days of being notified of the determination, request a public body (as the case requires) to refer the disclosure to the Ombudsman for determination –(3) If the Ombudsman makes a determination under Part 8 that a disclosure is not a public interest disclosure, this Part does not apply to –(a) any further disclosure to the Ombudsman, the President of the Legislative Council or the Speaker of the House of Assembly of the subject matter of that disclosure; or(b) the provision to the Ombudsman, the President of the Legislative Council or the Speaker of the House of Assembly of any further information in relation to the subject matter of the disclosure.
25. Certain persons continue to be protected
(1) If a public officer who makes a protected disclosure ceases to be a public officer after making the protected disclosure, the provisions of this Act apply to the public officer in relation to the protected disclosure as if the public officer continued to be a public officer.(2) If a contractor, either before or after making a protected disclosure, ceases to hold or be a party to a contract with the public body, the provisions of this Act apply to the contractor in relation to the protected disclosure as if the contract between the contractor and the public body were still in force.
PART 4 - Disclosure made to State Service Commissioner
26. Action by State Service Commissioner on receipt of disclosure
If a person makes a disclosure to the State Service Commissioner in accordance with Part 2 , the State Service Commissioner may –(a) deal with the disclosure under the State Service Act 2000 ; or(b) refer the disclosure to the Ombudsman or a public body, as the case may require, to be dealt with as if it were a disclosure made to the Ombudsman or public body in accordance with Part 2 .
27. Referral of disclosure to State Service Commissioner
If a person makes a disclosure to the Ombudsman or a public body in accordance with Part 2 and the Ombudsman or public body reasonably suspects that the disclosure relates to an alleged breach by a State Service officer or State Service employee of the Code of Conduct under the State Service Act 2000 , the Ombudsman or public body may refer the disclosure to the State Service Commissioner.
28. Action on referred disclosure by State Service Commissioner
If a disclosure is referred to the State Service Commissioner by the Ombudsman or a public body under section 27 , the State Service Commissioner may –(a) deal with the disclosure under the State Service Act 2000 ; or(b) refer the disclosure to the Ombudsman or public body, as the case may require, to be dealt with as if it were a disclosure made to the Ombudsman or public body in accordance with Part 2 .
(1) If the Ombudsman or a public body refers a disclosure to the State Service Commissioner under this Part, the Ombudsman or public body must, within a reasonable time, notify the person who made the disclosure of that referral.(2) If a disclosure is referred to the State Service Commissioner under section 27 , the State Service Commissioner must, within a reasonable time, notify the referring body and the person who made the disclosure of his or her decision made under section 28 .(3) This section does not apply in respect of a person who made an anonymous disclosure.
PART 5 - Determination of public interest disclosures
Division 1 - Determination by Ombudsman of public interest disclosures
30. Determination by Ombudsman of disclosure as public interest disclosure
(1) If a person makes a disclosure to the Ombudsman in accordance with Part 2 , the Ombudsman must, within a reasonable time after receiving the disclosure, determine whether the disclosure is a public interest disclosure.(2) In making a determination under subsection (1) , the Ombudsman must be satisfied that the disclosure shows or tends to show that a public officer or public body –(a) has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or(b) has taken, is taking or proposes to take detrimental action in contravention of section 19 .(3) This section does not apply to a disclosure that has been referred to the State Service Commissioner under Part 4 and that the State Service Commissioner has decided to deal with under the State Service Act 2000 .
(1) The Ombudsman must, within a reasonable time, notify the person who made the disclosure of the determination under section 30 in respect of the disclosure.(2) This section does not apply in respect of a person who made an anonymous disclosure.
32. Notice of alternative procedure
(1) If the Ombudsman –the Ombudsman must notify the person who made the disclosure of the person's right to have the disclosure dealt with as a complaint under that Act.(a) determines that a disclosure is not a public interest disclosure; and(b) considers that the disclosure could constitute a complaint under the Ombudsman Act 1978 –(2) A person who is given notice under subsection (1) may by notice in writing to the Ombudsman request that the disclosure be dealt with as a complaint under the Ombudsman Act 1978 .(3) A person must make a request under subsection (2) within 28 days of being given notice under subsection (1) .(4) If under this section a person requests that a disclosure be dealt with as a complaint under the Ombudsman Act 1978 , the disclosure is taken to be a complaint made to the Ombudsman under that Act.
Division 2 - Determination by public bodies of public interest disclosures
33. Determination by public body of disclosure as public interest disclosure
(1) If a person makes a disclosure to a public body in accordance with Part 2 , the public body must, within 45 days after receiving the disclosure, determine whether the disclosure is a public interest disclosure.(2) In making a determination under subsection (1) , the public body must be satisfied that the disclosure shows or tends to show that the public officer to whom the disclosure relates –(a) has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a public officer; or(b) has taken, is taking or proposes to take detrimental action in contravention of section 19 .(3) This section does not apply to a disclosure that has been referred to the State Service Commissioner under Part 4 and that the State Service Commissioner has decided to deal with under the State Service Act 2000 .
34. Procedure where public body determines disclosure to be public interest disclosure
(1) If, under section 33 , a public body determines that a disclosure is a public interest disclosure, the public body must, within 14 days –(a) notify the person who made the disclosure of that determination; and(b) notify the Ombudsman of its determination.(2) A public body is not required to notify under this section a person who made an anonymous disclosure.
35. Procedure where public body determines disclosure not to be public interest disclosure
(1) If, under section 33 , a public body determines that a disclosure is not a public interest disclosure, the public body must, within 14 days –(a) notify the person who made the disclosure of that determination; and(b) advise the person that –(i) he or she may request the public body to refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure; and(ii) the person's request must be made within 28 days of the notification.(2) This section does not apply in respect of a person who made an anonymous disclosure.
36. Request for referral to Ombudsman
If a person who is given notice under section 35 requests within the required time that a disclosure be referred to the Ombudsman, the public body must immediately refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure.
37. Determination by Ombudsman
(1) Division 1 applies to a disclosure referred to the Ombudsman under this Division as if the disclosure had been made to the Ombudsman.(2) The Ombudsman must, within a reasonable time, notify the public body that referred the disclosure under this Division of the determination as to whether the disclosure is a public interest disclosure.
PART 6 - Investigation of public interest disclosures by the Ombudsman
Division 1 - Functions of Ombudsman
38. Functions of Ombudsman under this Act
(1) The Ombudsman's functions under this Act are –(a) to determine whether disclosures received or referred to the Ombudsman are public interest disclosures; and(b) to investigate matters disclosed in public interest disclosures; and(c) to prepare and publish guidelines for the procedures to be followed by public bodies in relation to –(i) disclosures under Part 2 ; and(ii) investigations under Part 7 ; and(iii) the protection of persons from reprisals by public bodies or members, officers or employees of public bodies because of protected disclosures; and(d) to monitor investigations by public bodies under Part 7 ; and(e) any other function conferred on the Ombudsman by or under this Act.(2) The Ombudsman may from time to time amend the guidelines prepared and published under subsection (1)(c) .
Division 2 - Requirement to investigate
Subject to this Division, the Ombudsman must investigate every disclosure the Ombudsman has determined is a public interest disclosure.
40. Matters that do not have to be investigated
(1) The Ombudsman may decide not to investigate a disclosed matter –(a) if in the opinion of the Ombudsman the disclosure is trivial, vexatious, misconceived or lacking in substance; or(b) if the subject matter of the disclosure has already been adequately dealt with by the Ombudsman or a public body, statutory authority, Commonwealth statutory authority, commission, court or tribunal; or(c) if the person making the disclosure has commenced proceedings in a commission, court or tribunal in relation to the same matter, and that commission, court or tribunal has power to order remedies similar to those available under this Act; or(d) if the person making the disclosure had knowledge for more than 12 months of the disclosed matter before making the disclosure and failed to give a satisfactory explanation for the delay in making the disclosure.(2) The Ombudsman must –(a) within a reasonable time, notify the person making the disclosure of his or her decision under subsection (1) not to investigate the disclosed matter; and(b) give reasons for that decision.
41. Referral of matters for investigation otherwise than under this Act
The Ombudsman may refer a disclosed matter to the Commissioner of Police, the Auditor-General, a prescribed public body or the holder of a prescribed office to investigate if the Ombudsman considers it appropriate to do so.
42. Referral of public interest disclosures to relevant public body for investigation
(1) Subject to subsection (2) , the Ombudsman may refer a disclosed matter to a public body to investigate if –(a) the matter relates to a member, officer or employee of the public body; and(b) the Ombudsman considers it appropriate to do so.(2) Part 7 applies to the investigation of a matter referred to a public body under this section.(3) Nothing in this section limits the operation of section 41 .
43. Provision of information by Ombudsman
The Ombudsman may give to a person or body to whom or which a matter is referred under this Division for investigation any information that the Ombudsman has in respect of the matter.
If the Ombudsman refers a disclosed matter to a person or body under this Division to investigate, the Ombudsman must give notice of that referral to the person who made the disclosure unless it was an anonymous disclosure.
Division 3 - Investigation by Ombudsman
45. Procedures for investigation
Subject to this Part, the Ombudsman may regulate his or her procedures on an investigation of a disclosed matter in any manner that he or she thinks fit.
(1) Before conducting an investigation of a disclosed matter, the Ombudsman must in writing inform the relevant person or body listed in subsection (2) of his or her intention to do so.(2) For the purposes of subsection (1) , information must be given to –(a) if the disclosed matter relates to a public body or public officer, either the relevant Minister or the chief executive officer of the public body; or(b) if the disclosed matter relates to the mayor of a council, either the relevant Minister or the general manager of the relevant council; or(c) if the disclosed matter relates to a councillor (other than the mayor), the mayor and the general manager of the relevant council; or(d) if the disclosed matter relates to the general manager of a council –(i) the relevant Minister; or(ii) the mayor of that council and a senior officer of that council nominated by that council; or(e) if the disclosed matter relates to any other employee of a council, the mayor and the general manager of the relevant council.
47. Investigation to be private
The investigation by the Ombudsman of a disclosed matter is to be conducted in private.
The Ombudsman is not required to hold a hearing for the purposes of an investigation of a disclosed matter.
(1) Subject to this Part, the Ombudsman may obtain information from any person and in any manner he or she thinks fit for the purposes of an investigation of a disclosed matter.(2) Except as provided by this Act, section 8 and Part 3 of the Commissions of Inquiry Act 1995 apply to an investigation carried out by the Ombudsman as if –(a) the Ombudsman were a Commission established under section 4 of that Act; and(b) the investigation were the inquiry being conducted by that Commission under that Act.(3) For the purpose of an investigation of a disclosed matter, the Ombudsman may take a statutory declaration from any witness or other person.
50. Disclosure of privileged or confidential information to Ombudsman
(1) An obligation to maintain confidentiality or any other restriction on the disclosure of information obtained by or furnished to persons in the service of the Crown or any public body that is imposed by any Act, oath or rule of law or practice, or under an agreement, does not apply to the disclosure of information necessary for the purposes of an investigation by the Ombudsman of a disclosed matter.(2) The Crown is not, in relation to an investigation by the Ombudsman of a disclosed matter, entitled to any privilege in respect of the production of documents or the giving of evidence that is allowed by law in legal proceedings.(3) Subject to subsections (1) and (2) , a person cannot be compelled, for the purposes of an investigation by the Ombudsman of a disclosed matter, to produce any document or give any evidence that the person could not be compelled to produce or give in proceedings before a court.
51. Deliberations of Ministers and Parliamentary committees not to be disclosed
(1) A person is not required or authorised by this Part to furnish any information or answer any question that relates to –(a) any deliberation or decision of the Cabinet; or(b) the deliberations of any committee consisting of members of Parliament if the committee is formed for the purpose of advising Ministers in respect of their deliberations; or(c) any deliberations –(i) of a committee consisting of members of Parliament established by resolution of either the Legislative Council or the House of Assembly, or resolution of both the Legislative Council and the House of Assembly; or(ii) of a Parliamentary Standing Committee established under any Act.(2) A person is not required or authorised by this Part to provide or inspect a document that contains information that is exempt under section 24 of the Freedom of Information Act 1991 .
(1) For the purpose of conducting an investigation of a disclosed matter, the Ombudsman or any officer of the Ombudsman authorised by the Ombudsman for that purpose may at any reasonable time –(a) enter any premises used or occupied by a public body in its capacity as a public body or by a public officer in his or her capacity as a public officer; and(b) inspect those premises or anything for the time being in them or on them.(2) The powers conferred by subsection (1) to enter premises used or occupied by a public body or public officer are not to be exercised unless prior notice of the intention to do so has been given in writing to either the relevant Minister or the chief executive officer of the public body.(3) The premises referred to in this section do not include a private dwelling.
If, in the course of an investigation of a disclosed matter, it appears to the Ombudsman that there may be grounds for making a report adverse to a public body, a public officer or a councillor, the Ombudsman must, before making the report, give an opportunity to comment on the matter to –(a) in the case of a public body or public officer, either the relevant Minister or the chief executive officer of the public body; or(b) in the case of a councillor, either the relevant Minister or the mayor of the relevant council.
A person must not –(a) without lawful excuse, wilfully obstruct, hinder or resist the Ombudsman in the exercise of the Ombudsman's powers under this Part; or(b) without lawful excuse, refuse to or wilfully fail to comply with any lawful requirement of the Ombudsman under this Part; or(c) make a statement the person knows to be false or misleading in a material respect to the Ombudsman in the course of an investigation under this Part; or(d) knowingly mislead or attempt to mislead the Ombudsman in the course of an investigation under this Part.Penalty: Fine not exceeding 240 penalty units or imprisonment for a term of 2 years, or both.
55. Opportunity to be heard before adverse report
The Ombudsman is not, in any report under this Part or Part 8 , to make any comment adverse to any person unless that person has been given an opportunity of being heard in the matter and their defence is fairly set out in the report.
Division 4 - Action on completion of investigation
(1) On the completion of an investigation of a disclosed matter the Ombudsman –(a) must report the findings of the investigation to the relevant person; and(b) may make recommendations as to the action to be taken as a result of the investigation.(2) For the purposes of subsection (1) , the relevant person is –(a) in the case of a public body or public officer, either the relevant Minister or the chief executive officer of the public body; or(b) in the case of the mayor of a council, either the relevant Minister or the general manager of the relevant council; or(c) in the case of a councillor (other than the mayor), the mayor and the general manager of the relevant council; or(d) in the case of the general manager of a council –(i) the relevant Minister; or(ii) the mayor of that council and a senior officer of that council nominated by that council; or(e) in the case of any other employee of a council, the mayor and the general manager of the relevant council.(3) Recommendations under subsection (1) may include –(a) a recommendation that the disclosed matter be referred to an appropriate authority for further consideration; and(b) a recommendation that action be taken to remedy any harm or loss arising from the conduct; and(c) a recommendation that action be taken to prevent the conduct from continuing or occurring in the future.
57. Notice of implementation of recommendation
If the Ombudsman makes a recommendation in a report to a person under section 56 , the Ombudsman may request that person to notify the Ombudsman within a specified time –(a) of the steps that have been, or are proposed to be, taken to give effect to the recommendation; or(b) if no steps have been or are proposed to be taken, the reasons for this.
If it appears to the Ombudsman that insufficient steps have been taken within a reasonable time after making a report and recommendations under section 56 in relation to a public body, public officer or councillor, the Ombudsman, after considering any comments of the relevant Minister, the chief executive officer of the public body or the mayor of the relevant council (as the case requires), may, as the Ombudsman thinks fit, cause to be laid before each House of Parliament a report on any matter to which the report, recommendations and comments (if any) relate.
59. Person who made disclosure to be informed
(1) If the Ombudsman investigates a disclosed matter or takes any other action under this Part in respect of a disclosed matter, the Ombudsman must, within a reasonable time after the completion of the investigation, inform the person who made the disclosure of the result of the investigation or other action.(2) The information may be provided in the manner that the Ombudsman thinks fit.(3) If it appears to the Ombudsman that insufficient steps have been taken within a reasonable time after making a report and recommendations under section 56 , the Ombudsman must inform the person who made the disclosure of the recommendations, making any comments on them that he or she thinks appropriate.(4) The Ombudsman may disclose to the person who made the disclosure any additional information that the Ombudsman thinks appropriate.(5) This section does not apply in respect of a person who made an anonymous disclosure.
PART 7 - Investigation of public interest disclosures by public bodies
Division 1 - Establishment of procedures
60. Public body to establish procedures that comply with guidelines
A public body is to establish procedures that comply with any guidelines referred to in section 38(1)(c) .
61. Availability of procedures
(1) A public body is to make a copy of the procedures established by it available to each member, officer and employee of the public body.(2) A public body is to make the procedures available to the public in such manner as it thinks fit.
(1) The Ombudsman may review the procedures of a public body at any time to ensure that the procedures comply with this Act and the Ombudsman's guidelines.(2) The Ombudsman may review the implementation of the procedures of a public body to ensure that their implementation complies with this Act and the Ombudsman's guidelines.(3) The Ombudsman may make any recommendation to a public body that the Ombudsman thinks fit arising from a review under this section.(4) If it appears to the Ombudsman that insufficient steps have been taken within a reasonable time after making a recommendation under subsection (3) , the Ombudsman may, after considering any comments of the public body, send a copy of the recommendation to the relevant Minister.
Division 2 - Requirement to investigate
Subject to this Division, a public body must investigate –(a) every disclosure that it receives and determines is a public interest disclosure under section 33 ; and(b) every disclosed matter that the Ombudsman has referred to the public body to be investigated under this Part.
64. Matters that do not have to be investigated
A public body may decide not to investigate a disclosed matter referred to in section 63(a) –(a) if in its opinion the disclosure is trivial, vexatious, misconceived or lacking in substance; or(b) if the subject matter of the disclosure has already been adequately dealt with by the Ombudsman or a public body, statutory authority, Commonwealth statutory authority, commission, court or tribunal; or(c) if the person making the disclosure has commenced proceedings in a commission, court or tribunal in relation to the same matter, and that commission, court or tribunal has power to order remedies similar to those available under this Act; or(d) if the person making the disclosure had knowledge for more than 12 months of the disclosed matter before making the disclosure and failed to give a satisfactory explanation for the delay in making the disclosure.
65. Decision by public body not to investigate
(1) If, under section 64 , a public body decides not to investigate a disclosed matter, the public body must, within 14 days –(a) notify the person who made the disclosure of its decision and the reasons for its decision; and(b) advise the person that –(i) he or she may request the public body to refer the disclosure to the Ombudsman for a determination as to whether the disclosed matter is to be investigated; and(ii) the person's request must be made within 28 days of the notification.(2) This section does not apply in respect of a person who made an anonymous disclosure.
66. Request for referral to Ombudsman
If a person who is given notice under section 65 requests within the required time that a disclosed matter be referred to the Ombudsman, the public body must immediately refer the disclosed matter to the Ombudsman for a determination as to whether it is to be investigated.
67. Determination by Ombudsman
(1) Division 2 of Part 6 applies to a disclosed matter referred to the Ombudsman under this Division.(2) The Ombudsman must, within a reasonable time, notify the public body that referred the disclosed matter under this Division of the determination as to whether a disclosed matter should be investigated.
68. Referral to Ombudsman by public body
A public body may refer the investigation of a disclosed matter to the Ombudsman if the public body considers its own investigation is being obstructed.
69. Ombudsman may take over investigation
If the Ombudsman is not satisfied with an investigation of a disclosed matter by a public body under this Part, the Ombudsman may take over the investigation.
70. Provision of information to Ombudsman
If the Ombudsman commences or takes over an investigation of a disclosed matter that a public body was to investigate or has commenced investigating, the public body must give to the Ombudsman in writing any information that it has, and any findings, preliminary or otherwise, that it has made, in respect of the matter.
71. Ombudsman's powers in relation to certain investigations
(1) If an investigation by a public body is referred to the Ombudsman under section 68 or taken over by the Ombudsman under section 69 , the Ombudsman may –(a) commence a new investigation; or(b) complete the investigation; or(c) refer the investigation back to the public body to investigate with recommendations about the future conduct of the investigation; or(d) refer the matter to another public body to investigate.(2) If an investigation is taken over by the Ombudsman under section 69 , the Ombudsman may also inquire into the conduct of the investigation by the public body.(3) Divisions 3 and 4 of Part 6 apply to an investigation commenced, referred to or taken over by the Ombudsman under this Division.
(1) If a public body refers an investigation to the Ombudsman under this Part, the public body must give notice of that referral to the person who made the disclosure unless it was an anonymous disclosure.(2) If the Ombudsman takes over an investigation of a disclosed matter under this Part, the Ombudsman must give notice of that fact to the person who made the disclosure unless it was an anonymous disclosure.
Division 3 - Investigation by public body
73. Investigation to be in accordance with procedures
An investigation under this Part by a public body of a disclosed matter must be in accordance with the procedures established by the public body.
74. Information about progress of investigation
(1) A public body conducting an investigation of a disclosed matter must, at the request of the Ombudsman or person who made the disclosure, give the Ombudsman or the person (as the case requires) reasonable information about the investigation.(2) A public body must give the information within 28 days of receiving the request.(3) A public body is not required to give the information to the person who made the disclosure if –(a) the information requested has already been given to that person; or(b) the giving of the information requested would endanger the safety of any person or prejudice the conduct of the investigation.
Division 4 - Action on investigation
75. Action to be taken by public body
(1) If, on completing an investigation of a disclosed matter, the public body finds that the conduct that was the subject of the investigation has occurred, the public body –(a) must take all reasonable steps to prevent the conduct from continuing or occurring in the future; and(b) may take action to remedy any harm or loss arising from the conduct.(2) The steps to be taken may include –(a) the bringing of disciplinary proceedings against the person responsible for the conduct that was the subject of the investigation; and(b) the referral of the matter to an appropriate authority for further consideration.
(1) On completing an investigation of a disclosed matter, a public body must notify in writing –(a) the Ombudsman of the findings of the investigation and the steps (if any) taken under section 75 ; and(b) the relevant person or body of the steps (if any) taken under section 75 .(2) For the purposes of subsection (1) , a relevant person or body is –(a) in the case of an investigation of a disclosed matter relating to an employee of a council, the council; and(b) in any other case, the relevant Minister.
77. Report to person making disclosure
(1) Within a reasonable time after completing an investigation of a disclosed matter, the public body must inform the person who made the disclosure of the findings of the investigation and the steps (if any) taken under section 75 .(2) This section does not apply in respect of a person who made an anonymous disclosure.
PART 8 - Investigation of disclosures about members of Parliament
78. Referral of disclosure to Ombudsman
If a person makes a disclosure to the President of the Legislative Council or the Speaker of the House of Assembly in accordance with Part 2 , the President or the Speaker may refer the disclosure to the Ombudsman for investigation.
79. Determination of disclosure as public interest disclosure
(1) If the President of the Legislative Council or the Speaker of the House of Assembly refers a disclosure to the Ombudsman under this Part, the Ombudsman must, within a reasonable time after receiving the disclosure, determine whether or not the disclosure is a public interest disclosure.(2) In making a determination under subsection (1) , the Ombudsman must be satisfied that the disclosure shows or tends to show that the member of Parliament to whom the disclosure relates –(a) has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a member of Parliament; or(b) has taken, is taking or proposes to take detrimental action in contravention of section 19 .
The Ombudsman must, within a reasonable time, notify the President of the Legislative Council or the Speaker of the House of Assembly, as the case requires, of the determination under section 79 in respect of the disclosure.
81. Investigation by Ombudsman
The Ombudsman must investigate every disclosure referred to the Ombudsman by the President of the Legislative Council or the Speaker of the House of Assembly that the Ombudsman has determined is a public interest disclosure.
82. Investigations to be conducted in accordance with Division 3 of Part 6
Division 3 of Part 6 , except sections 46 and 53 , applies to an investigation commenced by the Ombudsman under this Part.
On completion of an investigation of a disclosed matter under this Part, the Ombudsman must report the findings of the investigation to the President of the Legislative Council or the Speaker of the House of Assembly (as the case requires).
PART 9 - Annual reports and other reports
84. Annual report by Ombudsman
The Ombudsman must include in the Ombudsman's annual report under section 30 of the Ombudsman Act 1978 –(a) the current guidelines published by the Ombudsman under Part 6 ; and(b) the number and types of disclosures made to the Ombudsman during the year; and(c) the number and types of determinations made by the Ombudsman during the year as to whether disclosures are public interest disclosures; and(d) the number and types of disclosed matters that during the year the Ombudsman has investigated; and(e) the number and types of disclosed matters that during the year the Ombudsman has referred –(i) under section 41 , to the Commissioner of Police, the Auditor-General, a prescribed public body or the holder of a prescribed office to investigate; or(ii) to a public body to investigate under Part 7 ; and(f) the number and types of disclosed matters –(i) that the Ombudsman has declined to investigate during the year; or(ii) that were referred by a public body during the year to the Ombudsman to investigate; and(g) the number and types of disclosures referred to the Ombudsman under this Act by the President of the Legislative Council or the Speaker of the House of Assembly during the year; and(h) the number and types of investigations of disclosed matters taken over by the Ombudsman during the year; and(i) the number and types of investigations of disclosed matters for which the Ombudsman has made a recommendation during the year; and(j) the recommendations made by the Ombudsman during the year in relation to each type of disclosed matter; and(k) the recommendations made by the Ombudsman during the year in relation to the procedures established by a public body under Part 7 ; and(l) the action taken during the year on each recommendation of the Ombudsman under this Act.
85. Other reports by Ombudsman
The Ombudsman may at any time cause a report on any matter arising in relation to a disclosed matter to be laid before each House of Parliament.
86. Annual reports by public body
If a public body is required by an Act to prepare a report of operations or an annual report on its activities during a year, the report must include –(a) the current procedures established by the public body under Part 7 ; and(b) the number and types of disclosures made to the public body during the year and the number of those disclosures that the public body determines to be public interest disclosures; and(c) the number of disclosures determined by the public body to be public interest disclosures that it investigated during the year; and(d) the number and types of disclosed matters referred to the public body during the year by the Ombudsman; and(e) the number and types of disclosed matters referred during the year by the public body to the Ombudsman to investigate; and(f) the number and types of investigations of disclosed matters taken over by the Ombudsman from the public body during the year; and(g) the number and types of disclosed matters that the public body has decided not to investigate during the year; and(h) the number and types of disclosed matters that were substantiated on investigation and the action taken on completion of the investigation; and(i) any recommendations of the Ombudsman under this Act that relate to the public body.
PART 10 - General
87. Offence to make false disclosure
(1) A person must not knowingly provide false information under this Act, intending that it be acted on as a disclosed matter, to –(a) the President of the Legislative Council; or(b) the Speaker of the House of Assembly; or(c) the Ombudsman; or(d) the State Service Commissioner; or(e) the Commissioner of Police; or(f) a public body.Penalty: Fine not exceeding 240 penalty units or imprisonment for a term of 2 years, or both.(2) A person must not knowingly provide false information to a person conducting an investigation under this Act.Penalty: Fine not exceeding 240 penalty units or imprisonment for a term of 2 years, or both.
88. Protection of Ombudsman and officers
(1) The Ombudsman, an officer of the Ombudsman, the President of the Legislative Council, the Speaker of the House of Assembly, the State Service Commissioner, the Commissioner of Police, a public body or an officer of a public body is not liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which he or she would have been liable apart from this section in respect of any act purporting to be done or omitted in the performance of functions or exercise of powers under this Act unless the act was done or omitted in bad faith.(2) No civil or criminal proceedings may be brought against a person or body referred to in subsection (1) in respect of an act or omission to act referred to in subsection (1) without the leave of the Supreme Court.(3) The Supreme Court is not to give leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person or body to be proceeded against has acted or omitted to act in bad faith.(4) An injunction is not to be issued, and an order of review is not to be made under the Judicial Review Act 2000 , restraining the Ombudsman or a public body from carrying out, or compelling the Ombudsman or a public body to carry out, any investigation under this or any other Act.
(1) Information is not admissible as evidence (if given by a party) in legal proceedings if it was obtained or received by the party –(a) from the Ombudsman or a public body in the course of or as a result of –(i) a disclosure under Part 2 ; or(ii) the investigation of a disclosed matter under this Act; or(b) from any person who obtained it in that way.(2) Subsection (1) does not apply to –(a) proceedings in relation to an offence against section 19 , 54 or 87 of this Act or in relation to section 27 of the Commissions of Inquiry Act 1995 ; or(b) proceedings under section 20 or 21 of this Act.
90. Exemption from Freedom of Information Act 1991
(1) The Freedom of Information Act 1991 does not apply to information contained in records in the possession of a public body that is an agency under that Act, or is taken under an enactment to be an agency under that Act, or the Ombudsman or any officer of the Ombudsman to the extent to which the information discloses information –(a) in relation to a disclosure made under Part 2 ; or(b) likely to lead to the identification of a person who made a disclosure under Part 2 ; or(c) likely to lead to the identification of a person against whom a disclosure under Part 2 is made.(2) In this section,agency has the same meaning as in the Freedom of Information Act 1991 .
(1) The Governor may make regulations for the purposes of this Act.(2) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(3) The regulations may authorise any matter to be from time to time determined, applied or regulated by the Ombudsman.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.
[Second reading presentation speech made in:
House of Assembly on 16 APRIL 2002
Legislative Council on 22 MAY 2002]