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Australia – Standards – Coverage – Channels

Australia – Standards – Coverage – Channels

25. Broadly speaking, a public interest disclosure is a disclosure of information, by a public official, that is:

a disclosure within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (referred to as “disclosable conduct”) ; or

a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or

a disclosure to anybody if there is substantial and imminent danger to health or safety; or

a disclosure to an Australian legal practitioner for purposes connected with the above matters.

However, there are limitations to take into account the need to protect intelligence information.

26. (1) A disclosure of information is a public interest disclosure if:

(a) the disclosure is made by a person (the discloser) who is, or has been, a public official; and

(b) the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and

(c) 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

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.

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 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 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 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.

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.

(3) 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:

(aa) whether the disclosure would promote the integrity and accountability of the Commonwealth public sector;

(ab) the extent to which the disclosure would expose a failure to address serious wrongdoing in the Commonwealth public sector;

(ac) 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;

(ad) the principle that disclosures by public officials should be properly investigated and dealt with;

(ae) the nature and seriousness of the disclosable conduct;

(a) any risk that the disclosure could cause damage to any of the following:

(i) the security of the Commonwealth;

(ii) the defence of the Commonwealth;

(iii) the international relations of the Commonwealth;

(iv) the relations between the Commonwealth and a State;

(v) the relations between the Commonwealth and the Australian Capital Territory;

(vi) the relations between the Commonwealth and the Northern Territory;

(vii) the relations between the Commonwealth and Norfolk Island;

(b) 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;

(c) if any of the information disclosed in the disclosure was communicated in confidence by or on behalf of:

(i) a foreign government; or

(ii) an authority of a foreign government; or

(iii) 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;

(d) any risk that the disclosure could prejudice the proper administration of justice;

(e) the principle that legal professional privilege should be maintained;

(f) any other relevant matters.

27. An allegation is a public interest disclosure if:

(a) it is made by a person who makes a disclosure of information that is a public interest disclosure under section 26; and

(b) it is made to the recipient of that disclosure in conjunction with that disclosure; and

(c) it is an allegation to the effect that the information disclosed concerns one or more instances of disclosable conduct.

28. (1) A public interest disclosure may be made orally or in writing.

(2) A public interest disclosure may be made anonymously.

(3) A public interest disclosure may be made without the discloser asserting that the disclosure is made for the purposes of this Act.

Referenced Legislation: Public Interest Disclosure Act (2013)

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