Meaning of public interest disclosure
26 Meaning of public interest disclosure
A disclosure of information is a public interest disclosure if:
the disclosure is made by a person (the discloser) who is, or has been, a public official; and
the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and
all the further requirements set out in column 3 of that item are met.
Public interest disclosures | |||
|---|---|---|---|
Item | Column 1 Type of disclosure | Column 2 Recipient | Column 3 Further requirements |
1 | Internal disclosure | An authorised internal recipient, or a supervisor of the discloser | (a) The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct. (b) The disclosure is not made in the course of performing the discloser’s ordinary functions as a public official. |
2 | External disclosure | Any person other than a foreign public official | (a) The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct. (b) On a previous occasion, the discloser made an internal disclosure of information that consisted of, or included, the information now disclosed. |
(c) Any of the following apply: (i) a disclosure investigation relating to the internal disclosure was conducted under Division 2 of Part 3, and the discloser believes on reasonable grounds that the investigation was inadequate; (ii) a disclosure investigation relating to the internal disclosure was conducted (whether or not under Division 2 of Part 3), and the discloser believes on reasonable grounds that the response to the investigation was inadequate; (iii) this Act requires an investigation relating to the internal disclosure to be conducted under Division 2 of Part 3, and that investigation has not been completed within the time limit under section 52. (e) The disclosure is not, on balance, contrary to the public interest. (f) No more information is publicly disclosed than is reasonably necessary to identify one or more instances of disclosable conduct. (h) The information does not consist of, or include, intelligence information. (i) None of the conduct with which the disclosure is concerned relates to an intelligence agency, except ACIC. | |||
3 | Emergency disclosure | Any person other than a foreign public official | (a) The discloser believes on reasonable grounds that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the environment. (b) The extent of the information disclosed is no greater than is necessary to alert the recipient to the substantial and imminent danger. (c) If the discloser has not previously made an internal disclosure of the same information, there are exceptional circumstances justifying the discloser’s failure to make such an internal disclosure. (d) If the discloser has previously made an internal disclosure of the same information, there are exceptional circumstances justifying this disclosure being made before a disclosure investigation of the internal disclosure is completed. (f) The information does not consist of, or include, intelligence information. |
4 | Legal practitioner disclosure | An Australian legal practitioner | (a) The disclosure is made for the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made, or proposing to make, a public interest disclosure. (b) If the discloser knew, or ought reasonably to have known, that any of the information has a national security or other protective security classification, the recipient holds the appropriate level of security clearance. (c) The information does not consist of, or include, intelligence information. |
A disclosure of information is also a public interest disclosure if:
the disclosure is made by a person who is, or has been, a public official; and
the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct; and
the disclosure is a NACC disclosure.
However, a disclosure made before the commencement of this section is not a public interest disclosure.
A response to a disclosure investigation is taken, for the purposes of item 2 of the table in subsection (1), not to be inadequate to the extent that the response involves action that has been, is being, or is to be taken by:
a Minister; or
the Speaker of the House of Representatives; or
the President of the Senate.
In determining, for the purposes of item 2 of the table in subsection (1), whether a disclosure is not, on balance, contrary to the public interest, regard must be had to the following:
whether the disclosure would promote the integrity and accountability of the Commonwealth public sector;
the extent to which the disclosure would expose a failure to address serious wrongdoing in the Commonwealth public sector;
the extent to which it would assist in protecting the discloser from adverse consequences relating to the disclosure if the disclosure were a public interest disclosure;
the principle that disclosures by public officials should be properly investigated and dealt with;
the nature and seriousness of the disclosable conduct;
any risk that the disclosure could cause damage to any of the following:
the security of the Commonwealth;
the defence of the Commonwealth;
the international relations of the Commonwealth;
the relations between the Commonwealth and a State;
the relations between the Commonwealth and the Australian Capital Territory;
the relations between the Commonwealth and the Northern Territory;
the relations between the Commonwealth and Norfolk Island;
if any of the information disclosed in the disclosure is Cabinet information—the principle that Cabinet information should remain confidential unless it is already lawfully publicly available;
if any of the information disclosed in the disclosure was communicated in confidence by or on behalf of:
a foreign government; or
an authority of a foreign government; or
an international organisation;
the principle that such information should remain confidential unless that government, authority or organisation, as the case may be, consents to the disclosure of the information;
any risk that the disclosure could prejudice the proper administration of justice;
the principle that legal professional privilege should be maintained;
any other relevant matters.
This Act’s bill:Explanatory memorandumSecond reading speech
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