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This Act may be cited as the Public Interest Disclosure Act 2003 1.
This Act comes into operation on a day fixed by proclamation 1.
Different days may be fixed under subsection (1) for different provisions.
In this Act, unless the contrary intention appears —
Commissioner means the person holding the office of Public Sector Commissioner established by the Public Sector Management Act 1994 section 16;
Commissioner of Police means the person holding the office of Commissioner of Police under the Police Act 1892;
Corruption and Crime Commission has the meaning given to Commission in section 3 of the Corruption, Crime and Misconduct Act 2003;
detrimental action includes action causing, comprising, or involving —
injury, damage, or loss; or
intimidation or harassment; or
adverse discrimination, disadvantage, or adverse treatment in relation to a person’s career, profession, employment, trade, or business; or
a reprisal;
environment has the same meaning as in the Environmental Protection Act 1986;
Parliamentary Commissioner means a person for the time being holding the office of the Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971;
public authority means —
a department of the Public Service established under section 35 of the Public Sector Management Act 1994;
an organisation specified in column 2 of Schedule 2 to the Public Sector Management Act 1994;
a non‑SES organisation within the meaning of that term in section 3(1) of the Public Sector Management Act 1994;
a local government, a regional local government or a regional subsidiary;
a body that is established or continued for a public purpose under a written law;
a body that is established by the Governor or a Minister;
any other body or the holder of an office referred to in subsection (2) that is declared by the regulations to be a public authority;
public interest information means information that tends to show that, in relation to its performance of a public function (either before or after the commencement of this Act), a public authority, a public officer, or a public sector contractor is, has been, or proposes to be, involved in —
improper conduct; or
an act or omission that constitutes an offence under a written law; or
a substantial unauthorised or irregular use of, or substantial mismanagement of, public resources; or
an act done or omission that involves a substantial and specific risk of —
injury to public health; or
prejudice to public safety; or
harm to the environment;
or
a matter of administration that can be investigated under section 14 of the Parliamentary Commissioner Act 1971;
public officer means —
a Minister of the Crown; or
a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899; or
a member of either House of Parliament; or
a judicial officer; or
a person who holds an appointment made under the Police Act 1892 Part I, III, IIIA or IIIB; or
a person authorised under a written law to execute or serve any process of a court or tribunal for remuneration; or
a public service officer within the meaning of the Public Sector Management Act 1994; or
a member, officer, or employee of a public authority; or
the holder of —
an office that is established for a public purpose under a written law; or
an office that is established by the Governor or a Minister;
or
an officer of the Commonwealth who exercises or discharges on behalf of this State a function under a written law; or
any other person holding office under the State of Western Australia;
public sector contractor means —
a person who, other than as an employee, contracts with a public authority or the State of Western Australia to supply goods or services to or on behalf of the authority or the State or as directed in accordance with the contract; or
a person who, other than as an employee, contracts with a public authority or the State of Western Australia to perform a public function; or
a subcontractor or employee of a person referred to in paragraph (a) or (b) and each person who contracts with another person for the execution of the whole or part of the requirements of a contract referred to in those paragraphs.
The regulations made for the purpose of paragraph (g) of the definition of public authority in subsection (1) can only declare a body or holder of an office to be a public authority if —
the body or office is established or continued under a written law; or
it is a corporation or association over which control can be exercised by —
the State; or
a body referred to in paragraph (b), (c), (e) or (f) of that definition; or
a body or the holder of an office declared by the regulations to be a public authority.
[Section 3 amended: No. 48 of 2003 s. 62; No. 78 of 2003 s. 74(2); No. 59 of 2006 s. 73; No. 77 of 2006 Sch. 1 cl. 136; No. 8 of 2008 s. 18; No. 42 of 2009 s. 22(2) and (3); No. 39 of 2010 s. 82(2); No. 35 of 2014 s. 39; No. 26 of 2016 s. 84.]
This Act binds the Crown in right of the State.
Any person may make an appropriate disclosure of public interest information to a proper authority.
A person makes an appropriate disclosure of public interest information if, and only if, the person who makes the disclosure —
believes on reasonable grounds that the information is true; or
has no reasonable grounds on which to form a belief about the truth of the information but believes on reasonable grounds that the information may be true.
A disclosure of public interest information is made to a proper authority if —
where the information relates to an act or omission that constitutes an offence under a written law — it is made to a police officer or to the Corruption and Crime Commission; or
where the information relates to a substantial unauthorised or irregular use of, or substantial mismanagement of, public resources — it is made to the Auditor General; or
where the information relates to a matter of administration that can be investigated under section 14 of the Parliamentary Commissioner Act 1971 — it is made to the Parliamentary Commissioner or to a person who occupies a position specified under section 23(1)(a) in relation to the public authority concerned; or
where the information relates to a person who holds an appointment made under the Police Act 1892 Part I, III, IIIA or IIIB — it is made to the Commissioner of Police or to the Corruption and Crime Commission; or
where the information relates to a judicial officer — it is made to the Chief Justice; or
where the information relates to a member of either House of Parliament — it is made to the Presiding Officer of the House of Parliament to which the member belongs; or
where the information relates to a public officer (other than a member of Parliament, a Minister of the Crown, a judicial officer or an officer referred to in Schedule 1 to the Parliamentary Commissioner Act 1971) — it is made to the Commissioner or the Parliamentary Commissioner; or
where the information relates to a matter falling within the sphere of responsibility of a public authority — it is made to a person who occupies a position specified under section 23(1)(a) in relation to that authority; or
where the information relates to a person or a matter of a prescribed class — it is made to a person declared by the regulations to be a proper authority for the purposes of subsection (1) in relation to such information.
Where a public interest disclosure falls within 2 or more paragraphs of subsection (3), then it is made to a proper authority if made to any or all of the authorities contemplated by the applicable paragraphs.
A disclosure of public interest information may be made under this Act —
even though anything to which the disclosure relates occurred before the commencement of this Act; and
whether or not the person making the disclosure is able to identify any person whom the information concerns.
A person may make a disclosure of public interest information anonymously.
Nothing in this Act entitles a person to disclose information that would otherwise be the subject of legal professional privilege.
[Section 5 amended: No. 48 of 2003 s. 62; No. 78 of 2003 s. 74(2); No. 42 of 2009 s. 22(4); No. 31 of 2012 s. 9.]
A disclosure of public interest information under this Act by a person does not affect that person’s liability for anything to which the information relates.
In this section —
journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a medium for the dissemination to the public or a section of the public of news and observations on news.
A person may make a disclosure to a journalist of substantially the same information that was the subject of a disclosure of public interest information that the person has already made under this Act if the proper authority to which the disclosure was made, or the person to whom a matter raised by the disclosure was referred under section 9(1)(b) —
has refused to investigate, or has discontinued the investigation of, a matter raised by the disclosure; or
has not completed an investigation of a matter raised by the disclosure within the period ending 6 months after the disclosure was made; or
has completed an investigation of a matter raised by the disclosure but has not recommended the taking of action in respect of the matter; or
has not complied with section 10(1) or (4), if applicable, in relation to the disclosure.
[Section 7A inserted: No. 31 of 2012 s. 15.]
In sections 8, 9 and 10 —
proper authority means a person to whom an appropriate disclosure of public interest information has been made in accordance with section 5(3), except that it does not include the Chief Justice or the Presiding Officer of a House of Parliament.
A proper authority must investigate or cause to be investigated the information disclosed to it under this Act if the disclosure relates to —
the authority; or
a public officer or public sector contractor of the authority; or
a matter or person that the authority has a function or power to investigate.
A proper authority may refuse to investigate, or may discontinue the investigation of, a matter raised by the disclosure if it considers that —
the matter is trivial; or
the disclosure is vexatious or frivolous; or
there is no reasonable prospect of obtaining sufficient evidence due to the time that has elapsed since the occurrence of the matter; or
the matter is being or has been adequately or properly investigated by another person to whom an appropriate disclosure of public interest information has been made in accordance with section 5(3).
A proper authority that refuses to investigate, or discontinues the investigation of, a matter raised by a disclosure must give the person who made the disclosure the reason for its refusal.
Subsection (3) does not apply in respect of a person who made an anonymous disclosure.
[Section 8 amended: No. 31 of 2012 s. 10.]
If a proper authority forms the opinion that a person may be, may have been, or may in the future be, involved in a matter that may be the subject of a disclosure of public interest information, the proper authority must take such action as is necessary, reasonable, and within its functions and powers, to —
prevent the matter to which the disclosure relates from continuing or occurring in future; or
refer the matter to the Commissioner of Police or another person, body, or organisation having power to investigate the matter; or
take disciplinary action or commence or enable disciplinary proceedings to be commenced against a person responsible for the matter.
Before taking action under subsection (1)(a) or (c) the proper authority is to afford any person against whom, or in respect of whom, the action is to be taken the opportunity to make a submission, either orally or in writing, in relation to the matter.
If an appropriate disclosure of public interest information is made to a proper authority, that proper authority must, subject to section 11, not more than 3 months after the disclosure is made, notify the person who made the disclosure of the action taken or proposed to be taken in relation to the disclosure.
A person who has made an appropriate disclosure of public interest information under this Act may request the proper authority to whom the disclosure was made to provide a report on progress on dealing with the matter in relation to which the disclosure was made.
If an investigation into a matter in relation to which the disclosure was made is not complete, the proper authority to whom the disclosure was made may provide a progress report to the person who requested a report on the current status of the investigation.
If an investigation into a matter in relation to which the disclosure was made is complete, the proper authority who carried out the investigation must provide a final report to the person who requested a report stating —
the outcome of the investigation and any action the proper authority has taken or proposes to take as a result of the investigation; and
the reason for taking the action that has been taken or that is proposed to be taken.
Subsections (1), (2), (3) and (4) do not apply in respect of a person who made an anonymous disclosure.
[Section 10 amended: No. 31 of 2012 s. 11.]
A proper authority must not, in a notification or report under section 10, give information that, in that proper authority’s opinion, would be likely to affect adversely —
any person’s safety; or
the investigation of an offence or possible offence; or
necessary confidentiality about the existence or identity of a person who has made a disclosure of public interest information other than the person being given the information.
[(2) deleted]
To avoid doubt, it is declared that information that section 151, 152 or 153 of the Corruption, Crime and Misconduct Act 2003 prevents a person from disclosing is not to be given or disclosed under section 10.
[Section 11 amended: No. 48 of 2003 s. 62 (as amended: No. 78 of 2003 s. 35(13)); No. 78 of 2003 s. 74(2); No. 35 of 2014 s. 39.]