Reprisals in relation to disclosures—offences
19 Reprisals in relation to disclosures—offences
Taking a reprisal—by causing detriment
A person (the first person) commits an offence in relation to another person (the second person) if:
the first person engages in conduct; and
engaging in the conduct results in detriment to the second person; and
when the conduct is engaged in, the first person believes or suspects that the second person, or any other person:
has made a public interest disclosure; or
may have made a public interest disclosure; or
proposes to make a public interest disclosure; or
could make a public interest disclosure; and
the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Taking a reprisal—by a threat to cause detriment
A person (the first person) commits an offence in relation to another person (the second person) if:
the first person engages in conduct; and
engaging in the conduct consists of, or results in, a threat to cause detriment to the second person; and
the first person is reckless as to whether the second person fears that the threat would be carried out; and
when the conduct is engaged in, the first person believes or suspects that the second person, or any other person:
has made a public interest disclosure; or
may have made a public interest disclosure; or
proposes to make a public interest disclosure; or
could make a public interest disclosure; and
the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Subsection (2) applies whether or not the threat mentioned in paragraph (2)(b) is:
express or implied; or
conditional or unconditional.
Exception—reasonable administrative action
Subsections (1) and (2) do not apply if the conduct engaged in by the first person is administrative action that is reasonable to protect the second person from detriment.
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
No requirement to prove matters related to a public interest disclosure
In a prosecution for an offence against this section, it is not necessary to prove that any person:
has made a public interest disclosure; or
may have made a public interest disclosure; or
proposes to make a public interest disclosure; or
could make a public interest disclosure.
The offences against subsections (1) and (2) relate to whether the first person has taken a reprisal (within the meaning of section 13) against the second person.
The offence against subsection (1) relates to a reprisal that consists of causing detriment to another person. The offence against subsection (2) relates to a reprisal that involves a threat to cause detriment to another person.
For actions that constitute a detriment, see subsection 13(2).
Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness (see subsection 5.4(4) of the Criminal Code).
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