Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

PART 4 PROTECTIONS FOR DISCLOSERS UNDER THIS ACT

Overview of this Part

4.1 This Part would provide a range of protections to persons who provide evidence or information to the Commission for the purposes of the NACC Bill. These protections would provide immunity from civil, criminal and administrative liability for whistleblowers and other persons, and criminal penalties for anyone taking, or threatening to take reprisal action against them.

4.2 This Part provides one component of a broader framework for:

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the management of PIDs-particularly internal disclosures-made by public officials (within the meaning of the PID Act); and

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the protection of persons generally who provide information for the purposes of the NACC Bill.

4.3 This Part would complement and align with the existing PID Act framework, which:

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provides protections to public officials and former public officials who make PIDs;

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provides for the allocation and investigation of PIDs that are internal disclosures made to an individual's supervisor or an authorised officer; and

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provides for oversight of the PID Act framework by the Commonwealth Ombudsman and the IGIS.

4.4 Other provisions of the NACC Bill and the Consequential Bill that are relevant to this Part include:

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clause 35, which provides that staff members of Commonwealth agencies who become aware of possible corruption issues in the course of performing certain functions under the PID Act are required to refer those corruption issues to the Commissioner;

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clause 39, the effect of which is that an internal disclosure under the PID Act referred to the Commissioner must continue to be dealt with by the referring Commonwealth agency under the PID Act by default;

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clause 43, which would permit the Commissioner to direct, among other things, that an internal investigation by a Commonwealth agency under the PID Act be stopped, if it is required to ensure the effectiveness of an action the Commissioner has taken or will take in relation to the corruption issue;

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clauses 204, and 208, and clause 43 as applied by clause 211, which provide equivalent arrangements for NACC corruption issues; and

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amendments to the PID Act (see paragraphs 14.132 to 14.177) to be made by the Consequential Bill, which would ensure that a public official (within the meaning of that Act) obtains the protections available under that Act regardless of whether they make a PID internally or a NACC disclosure under this Bill.

Existing protections under the PID Act for public officials

4.5 A current or former public official (within the meaning of the PID Act) may make a PID in relation to disclosable conduct as defined by the PID Act. Public officials are defined in section 69 of the PID Act, and include staff members of departments, executive agencies, contracted service providers and certain statutory office holders. Disclosable conduct is defined in section 29 of the PID Act, and includes conduct that contravenes a law of the Commonwealth, a State or a Territory, conduct that perverts the course of justice, involves corruption of any kind, constitutes maladministration, results in the wastage of public money, or is an abuse of public trust.

4.6 Instances of corrupt conduct as defined in clause 8 are likely to constitute disclosable conduct for the purposes of the PID Act. An individual who makes a PID under the PID Act will receive a range of protections under that Act. In particular:

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an individual is not subject to any civil, criminal or administrative liability, or contractual or other remedies, for making a PID (section 10);

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it is an offence to take a reprisal, or to threaten to take a reprisal, against a person because of a PID (including a proposed or a suspected PID) (section 19);

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the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make orders for civil remedies (including compensation, injunctions and reinstatement of employment) if a reprisal is taken against a person because of a PID (including a proposed or a suspected PID) (sections 14 to 16); and

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it is an offence to disclose the identity of an individual who makes a PID, unless an exception applies (section 20).

New protections in the NACC Bill

4.7 This Part would ensure appropriate protections (equivalent to those available to public officials under the PID Act) are available to:

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all persons, including those who are not public officials (within the meaning of the NACC Bill or the PID Act); and

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all information provided for the purposes of the NACC Bill, regardless of whether that information concerns disclosable conduct (within the meaning of the PID Act).

4.8 The protections that are provided for under this Part are:

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immunity from civil, criminal and administrative liability, including disciplinary action;

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protection from enforcement of contractual or other remedies against a person due to their disclosure; and

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an offence criminalising the taking of reprisals, and threatening reprisals.

4.9 These protections would reduce the likelihood of a person being deterred from referring corruption issues to the Commissioner, or assisting a corruption investigation, due to fear of retribution or proceedings being brought against them. These protections could operate to provide, for example, immunity from proceedings brought in response to breaching a condition of employment or a non-disclosure agreement by disclosing information to the NACC about a corruption issue, or stealing company property by providing documents to the NACC about a corruption issue. They could also provide for a person who takes a reprisal against someone who gives information to the NACC, or assists with a NACC investigation, to be subject to prosecution for a criminal offence.

4.10 The protections would also ensure that persons who refer matters, provide information or otherwise assist with a NACC Act process-investigations of corrupt conduct, public inquiries, and NACC complaint investigations (see paragraph 1.104)-are protected from any adverse consequences resulting from their disclosure or participation. Importantly, these protections would apply despite the effect of any other Commonwealth laws.

Protections only available under the PID Act

4.11 Compensation for detriment arising from a person taking a reprisal action would remain available only under the PID Act in relation to PIDs by current and former public officials-not to members of the public more broadly. Compensation is available under the PID Act to public officials who make a disclosure in accordance with that Act and experience a detriment, including dismissal of the person from their employment, alteration of their employment, and discrimination between the person and another employee by the employer. This is considered appropriate on the basis that members of the public who are not public officials would be less likely to experience employment-related detriment from an employer outside the NACC's jurisdiction as a result of making a NACC disclosure.

4.12 Unlike the PID Act, this Part would not provide a specific protection against the disclosure of a discloser's identity. Section 20 of the PID Act makes it an offence for a person to disclose information that is likely to enable identification of a person who has made a PID, where that information was obtained in their capacity as a public official. It is unnecessary to replicate section 20 because Part 11 of the NACC Bill would provide general obligations of confidentiality on staff members of the NACC that would extend to protecting the identity of a person who made a NACC disclosure. This would be subject to exceptions where the disclosure is for the purpose of staff members performing their functions under the NACC Bill. For example, a person's identity could be shared with other staff of the NACC to assist with the investigation of a corruption issue.

4.13 If a disclosure to the NACC constitutes a PID, the offence in section 20 of the PID Act would apply to staff members of the NACC. That offence applies subject to relevant exceptions, including paragraph 20(3)(d) of the PID Act, which allows for the disclosure or use of identifying information for the purposes of a law of the Commonwealth. This would include the use of identifying information for the purposes of the NACC Bill, once enacted.

4.14 Any person who is concerned about their identity being known by the NACC would have the option of making an anonymous voluntary referral to the NACC under clause 32.

Protection for journalists' informants

4.15 Division 4 of this Part would relieve a journalist or their employer from disclosing identifying information about their informants.

Division 1-Meaning of NACC disclosure

Clause 23 - Meaning of NACC disclosure

4.16 This clause would define the concept of a NACC disclosure for the purposes of the NACC Bill.

4.17 A person would make a NACC disclosure if they referred, or provided information about, a corruption issue to the Commissioner or to the IGIS under Part 5 of the NACC Bill.

4.18 A NACC disclosure would also be made where a person refers information about a NACC corruption issue to the Inspector under clause 202 or clause 203.

4.19 A person would also make a NACC disclosure where they give evidence or information, or produce a document or a thing, to a NACC Commissioner, the IGIS or the Inspector in relation to any of the following:

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a corruption issue;

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a NACC Act process (see paragraph 1.104), including a corruption investigation;

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a NACC corruption issue;

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a complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.

4.20 In practice, the definition of a NACC disclosure would apply to a broad range of disclosures, including:

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a person who voluntarily refers a corruption issue to the Commissioner under clause 32, regardless of whether the person is a public official;

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agency heads who refer corruption issues to the Commissioner or the IGIS under clause 33 or 34;

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staff members with functions under the PID Act who refer corruption issues to the Commissioner under clause 35;

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persons who provide evidence to the Commissioner during a corruption investigation or public inquiry, whether voluntarily or in response to a notice to produce or a summons; and

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persons who make equivalent referrals, make complaints, or provide equivalent evidence to the Inspector in relation to NACC corruption issues, NACC corruption investigations or NACC complaint investigations.

Division 2-Protection of persons from liability

4.21 This Division would set out the protections available to a person who makes a NACC disclosure under this Bill, and the circumstances in which those protections are available. This Division would also outline how a person may seek to invoke the protections where proceedings have been commenced against them.

Clause 24-Protection of persons from liability

4.22 This clause would provide immunities and other protections for persons who make NACC disclosures. This is important to ensure that a person is neither legally prevented nor deterred from making a NACC disclosure where they have information concerning potential corrupt conduct.

4.23 This clause would provide that a person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making a NACC disclosure under clause 23. This would mean, for example, that a person making a NACC disclosure would not be subject to:

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civil liability for breach of confidence arising from the disclosure of confidential information to the Commissioner

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criminal liability for providing classified documents to the IGIS

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for public officials-administrative action-such as performance management, suspension or termination of their employment-as a result of disclosing information to the Inspector.

4.24 This clause would also provide protection against a contractual or other remedy or right that would otherwise have been able to be enforced against the person on the basis that they made a NACC disclosure. For example, a contractual remedy such as compensation for the breach of a non-disclosure agreement could not be obtained, and a contractual termination clause or statutory power could not be exercised, on the basis of the person making a NACC disclosure.

4.25 Further, this clause would provide that a person making a NACC disclosure would have absolute privilege in proceedings for defamation in respect of the NACC disclosure. That is, generally no action for defamation could be brought against a person in relation to a NACC disclosure.

4.26 These protections are subject to the limitation in clause 25 outlined below.

4.27 This clause is consistent with section 10 of the PID Act.

Clause 25-Liability for false and misleading statements unaffected

4.28 This clause would provide that the protections in clause 24 do not apply to civil, criminal or administrative liability (including disciplinary action) for knowingly making a statement that is false or misleading. This would ensure that a discloser is not protected from liability in circumstances where the discloser knowingly makes false or misleading statements.

4.29 A discloser would be subject to civil liability for such statements. For example, this would mean that a person could potentially be sued for defamation or a breach of their employment contract if they provided falsified information to the Commissioner.

4.30 A discloser who is a public official would also be subject to administrative liability, including disciplinary action, in these circumstances. For example, this would mean that a public official's security clearance could be revoked, or they could be demoted to a more junior level, if they provided information that they knew to be misleading to the NACC when purporting to refer a corruption issue.

4.31 The effect of this clause would be to ensure disclosers are not protected from criminal liability and other liabilities for knowingly making false or misleading statements. Preserving the operation of criminal liability in these circumstances would deter the making of false allegations of corrupt conduct or the provision of misleading evidence to the NACC, which could otherwise harm a person's reputation, seek to conceal corrupt conduct or divert the NACC's resources. In the absence of this provision, the operation of the offences in clauses 61 (producing false or misleading information or documents) and 71 (giving false or misleading evidence, information or documents) would be compromised.

4.32 This clause expressly preserves the operations of the offences under sections 137.1, 137.2, 144.1 and 145.1 of the Criminal Code, which relate to knowingly producing false or misleading information or documents to a Commonwealth entity, and making and using forged documents.

4.33 This clause is consistent with section 11 of the PID Act.

Clause 26-Person's liability for own conduct not affected

4.34 This clause would clarify that a person's liability for their own conduct is not affected if they make a NACC disclosure concerning that conduct. For example, a person who engaged in corrupt conduct and then referred that conduct to the NACC in an attempt to avoid criminal liability would not receive immunity from criminal liability under clause 24.

4.35 This clause is consistent with section 12 of the PID Act.

Clause 27-Claims for protection

4.36 This clause would outline how a person may seek to invoke the protections that would be provided under clause 24 in circumstances where civil or criminal proceedings have been instituted against that person in a court. This clause would apply if the person makes a claim, relevant to the proceedings, that they are not subject to any civil, criminal or administrative liability for making a particular NACC disclosure due to the protections in clause 24.

4.37 The person seeking to invoke protection from liability under clause 24 in these circumstances would bear the onus of adducing evidence that suggests a reasonable possibility that the protection applies. If the onus is discharged, the party who instituted the proceedings against the person would bear the onus of proving that the protection from liability did not apply.

4.38 For example, a person who had civil proceedings instituted against them for breaching a confidentiality clause in their contract of employment would be able to make a claim that the breach was for the purposes of making a NACC disclosure. The person would then need to adduce evidence that they are entitled to immunity from civil liability under clause 24. To discharge this onus, the person could, for example, adduce evidence of their disclosure to the NACC (such as an email or other record of their referral). The party instituting the proceedings would then bear the onus of proving that the person is not entitled to protection under clause 24.

4.39 A claim under this clause would be dealt with by the court in separate proceedings. The initial civil or criminal proceedings against the person would be adjourned by the court until the claim for protection under this clause was resolved.

4.40 Any admission, information or evidence made or given by the person in the separate proceedings would not be admissible in evidence against the person, except in proceedings concerning the falsity of the admission, information or evidence made or given.

4.41 If the person or another person were to give evidence in the separate proceedings under this clause, the giving of that evidence would not amount to a waiver of privilege for the purposes of any proceedings. This clause would clarify that a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence with respect to the identity of journalists' informants would be a privilege for the purposes of this clause.

4.42 This clause is consistent with section 23 of the PID Act.

Clause 28-Protection has effect despite other Commonwealth laws

4.43 This clause would provide that protections afforded by clause 24 would have effect despite any other provision of a law of the Commonwealth, unless the provision is enacted after the commencement of this clause and is expressed to have effect despite this Part or clause.

4.44 This clause would ensure that protections and remedies afforded by the NACC Bill to persons who make a disclosure to the NACC are not overridden by provisions of other laws, unless there is a clear legislative intention to do so.

4.45 For example, a public official who makes a NACC disclosure would receive immunity from liability under this Bill if their disclosure breaches a designated publication restriction under section 11A of the PID Act. Types of designated publication restrictions are defined in section 8 of the PID Act and include a range of suppression and non-publication orders made by a court, including under the Judiciary Act 1903.

Division 3-Protection from reprisals

4.46 This Division would make it an offence for a person to take, or threaten to take, a reprisal against another person on the basis that they have made or may make a NACC disclosure.

Clause 29-What constitutes taking a reprisal

4.47 This clause would set out the circumstances in which a reprisal will be taken to have occurred for the purposes of this Bill. A reprisal would occur where a person (the first person) causes (by act or omission) any detriment to another person (the second person).

4.48 At the time the first person's act or omission occurred, the first person must have believed or suspected that the second person (or any other person) made, may have made or is proposing to make, a NACC disclosure.

4.49 This clause would also require that the first person's belief or suspicion about the NACC disclosure was the reason (or part of the reason) for their act or omission that caused the second person detriment.

4.50 Under this clause, detriment has its ordinary meaning and includes disadvantage with respect to the second person's employment, including termination or an alteration of the second person's position to their detriment.

4.51 For example, taking a reprisal could include bullying or harassing a person, or passing that person over for a promotion, if it was motivated by the fact that person has or is suspected of making a NACC disclosure.

4.52 An exception to behaviour that might otherwise constitute a reprisal under this clause is where a person takes administrative action that is reasonable to protect another person from detriment. For example, where a person has made a disclosure in relation to practices in their immediate work area, it may be appropriate to transfer them to another work area to ensure they are not subject to any detriment.

4.53 This clause would also protect a person who makes a disclosure indirectly to the NACC in appropriate circumstances.

4.54 This clause is consistent with section 13 of the PID Act.

Clause 30-Offences-taking a reprisal or threatening to take a reprisal

4.55 This clause would make it an offence to take a reprisal, or threaten to take a reprisal, against another person because that person or another person has made, or may make, a NACC disclosure.

4.56 A similar offence in section 19 of the PID Act protects persons from reprisal action taken against them on the basis that they made, may have made or intended to make, a PID. This offence would not apply where a disclosure is not a valid PID for the purposes of the PID Act (for example because a person is not a public official, or where the information is not disclosable conduct under the PID Act). It is important that a person who refers a corruption issue or provides information under the NACC Bill does not experience detriment on the basis of their disclosure, regardless of whether it is made under the PID Act or otherwise. This clause would ensure that disclosers who would not be entitled to protection from reprisals under the PID Act would receive equivalent protections under the NACC Bill.

Offence of taking a reprisal

4.57 The first offence would consist of the physical element that a person (the first person) takes a reprisal against another person (the second person). The fault element for this conduct element would be intention, in accordance with section 5.6 of the Criminal Code.

4.58 The maximum penalty for this offence would be imprisonment for 2 years. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. Given the potentially severe consequences of a reprisal against the second person, this penalty is appropriate to punish a worst case offence. The penalty is the same as the equivalent offence under subsection 19(1) of the PID Act.

4.59 In a prosecution for such an offence, it would not be necessary to prove that a NACC disclosure was made or was intended to be made. This clause does not affect the onus of proof in a prosecution and is merely a clarification that these matters do not form part of the physical elements of the offence.

Offence of threatening to take a reprisal

4.60 This clause would also make it an offence to threaten another person with taking a reprisal. This offence recognises that a mere threat to cause detriment could deter whistleblowers from making a NACC disclosure.

4.61 The offence would consist of the following physical elements:

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the first person makes a threat to a second person to take a reprisal against the second person or a third person;

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the first person either:

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intends the second person to fear that the threat will be carried out; or

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is reckless as to the second person fearing that the threat will be carried out.

4.62 The fault element for the first element of the offence-concerning the person's conduct in making the threat-would be intention.

4.63 The fault element for the second element is stated in the NACC Bill. The fault element would be that:

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the first person intends the second person to fear that the threat will be carried out; or

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the first person is reckless as to the second person fearing that the threat will be carried out.

4.64 The maximum penalty for this office would be imprisonment for 2 years. The maximum penalty needs to be adequate to deter and punish a worst case offence, including repeat offences. Given the potentially severe consequences of a person repeatedly threatening to take a reprisal against a second person, this penalty is appropriate to punish a worst case offence. This penalty is the same as the equivalent offence under subsection 19(3) of the PID Act.

4.65 This clause would provide that a threat may be express or implied, or conditional or unconditional. This would ensure that all forms of threats are capable of falling within the scope of the offence, including where the first person avoids making the threat expressly.

4.66 In a prosecution for this offence, it would not be necessary to prove that the person threatened actually feared that the threat would be carried out. This clause does not affect the onus of proof in a prosecution and is merely a clarification that the threatened person's state of mind does not form a physical element of the offence.

Division 4-Protection for journalists' informants

Clause 31-Protection for journalists' informants

4.67 This clause would provide protections for the identities of journalists' informants. Protecting the identity of journalists' sources would assist to uphold the public interest associated with a free press.

When the protection applies

4.68 The protections in this clause would apply where:

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a person (the informant) gives information, directly or indirectly, to a person working in a professional capacity as a journalist;

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the information is given in the normal course of the journalist's work as a journalist; and

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the journalist reasonably believes that the informant provided the information on the express or implied understanding that their identity would not be disclosed.

4.69 A journalist would be a person working in a professional capacity as a journalist. Indicators that a person is working in a professional capacity as a journalist include regular employment, formal qualifications, adherence to enforceable ethical standards and membership of a professional body.

Scope of the protection

4.70 This clause would provide that none of the following persons would be required to do anything under this Bill that would disclose the identity of an informant or would enable the identity of an informant to be ascertained:

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the journalist;

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the journalist's employer;

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a person assisting the journalist who is employed or engaged by the journalist's employer; or

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a person assisting the journalist in the person's professional capacity.

4.71 The concept of 'assisting' a journalist would cover persons who are directly assisting a journalist (for example, an editor assisting the journalist with an article or program, or an administrative staff member assisting the journalist with logistical arrangements for meetings with their sources), and persons who are indirectly assisting the journalist (for example, a lawyer who has been requested by an editor to provide legal advice in connection with a journalist's article before the article is finalised for publication).

4.72 The clause would apply to a person assisting the journalist in the person's professional capacity. This would apply to persons who are not employed or engaged by the same employer as the journalist, provided that they are providing assistance in their professional capacity. It is appropriate to cover persons providing professional assistance to a journalist whether or not they are employees of the same news organisation as the journalist, as a journalist may not be employed by a news organisation and, furthermore, may be assisted by persons who are not employed by the same organisation. This may occur where, for example:

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two journalists working for different media organisations are collaborating on a major investigation-each journalist would be a person assisting the other journalist in the person's professional capacity, and so would attract the protection in clause 31 in relation to the other journalists' sources; or

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a journalist is being assisted by a freelance photographer, who is not employed by the same media organisation as the journalist-the freelance photographer would be a person assisting the journalist in the person's professional capacity and so would attract the protection in clause 31 in relation to the journalist's sources.

4.73 The concept of a person providing assistance to the journalist in the person's 'professional capacity' is intended to ensure that the protection in paragraph 32(2)(d) aligns with that in paragraph 32(2)(c), to cover persons providing professional assistance to a journalist of a kind that might otherwise be provided by persons employed or engaged by a media organisation. This would include the examples listed above, as well as assistance with editing the journalist's article, making logistical arrangements to assist the journalist to meet with a source, or providing legal advice in connection with the journalist's article before the article is finalised for publication.

4.74 This would mean that the NACC would not be able to compel a journalist, a journalist's employer, a person assisting the journalist who is employed or engaged by the journalist's employer or a person assisting the journalist in the person's professional capacity, who have knowledge of an informant's identity to identify the journalist's source in response to a notice to produce or under questioning at a hearing.

4.75 This clause would apply to any journalist and their employer. This would include journalists who are staff members of the ABC or SBS (which are Commonwealth agencies for the purposes of the NACC Bill). For the ABC and SBS, this clause would provide that the journalist's employer (who is also entitled to the protections) would be the head of the agency.

4.76 Relatedly, the abrogation of legal professional privilege in the context of providing investigation material in response to a direction to produce, a notice to produce or at a hearing would not apply in relation to advice or a communication given for the purposes of, or in the course of, a person's work as a journalist (see clause 114 and paragraphs 7.432 to 7.434). This would provide additional protection for journalists' informants.

Search powers

4.77 This clause does not prevent an authorised officer from doing anything an authorised officer would be able to do when exercising powers under Part IAA of the Crimes Act 1914 for the purposes of the NACC Bill. Part IAA concerns search, information-gathering, arrest and related powers (other than powers under delayed notification search warrants).

4.78 The effect of this clause would be that a journalist and their employer would not be able to refuse the seizure of material under a search warrant issued under Part IAA for the purposes of a corruption investigation on the basis that it would disclose an informant's identity.

4.79 This is appropriate because Part IAA powers to issue a search warrant involving a journalist are modified by clause 124 to require consideration of the public interest in protecting journalists' sources and the free exchange of information between journalists and members of the public. That clause would balance the importance of ensuring the NACC can conduct corruption investigations and public inquiries with the importance of preserving freedom of expression by maintaining the confidentiality of journalists' sources.

4.80 Further, the Commissioner's power to search premises occupied by a Commonwealth agency without a warrant (clause 117) would not extend to the premises occupied by the ABC or SBS (see paragraph 7.466).