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New South Wales
Protected Disclosures Amendment
(Supporting Whistleblowers) Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Protected Disclosures Act 1994 No 92 2
4 Amendment of other Acts 2
5 Repeal of Act 2
Schedule 1 Amendment of Protected Disclosures Act 1994 3
Schedule 2 Amendment of other Acts 16
b2007-150-22.d07
New South Wales
Protected Disclosures Amendment
(Supporting Whistleblowers) Bill 2008
No , 2008
A Bill for
An Act to amend the Protected Disclosures Act 1994 to make further provision for
disclosures in the public interest and the investigation of matters raised by such
disclosures; and for other purposes.
Clause 1 Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Protected Disclosures Amendment (Supporting 3
Whistleblowers) Act 2008. 4
2 Commencement 5
This Act commences 3 months after the date of assent to this Act, unless 6
commenced sooner by proclamation. 7
3 Amendment of Protected Disclosures Act 1994 No 92 8
The Protected Disclosures Act 1994 is amended as set out in 9
Schedule 1. 10
4 Amendment of other Acts 11
Each Act specified in Schedule 2 is amended as set out in that Schedule. 12
5 Repeal of Act 13
(1) This Act is repealed on the day following the day on which all of the 14
provisions of this Act have commenced. 15
(2) The repeal of this Act does not, because of the operation of section 30 16
of the Interpretation Act 1987, affect any amendment made by this Act. 17
Page 2
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
Schedule 1 Amendment of Protected Disclosures 1
Act 1994 2
(Section 3) 3
[1] Long title 4
Omit the long title. Insert instead: 5
An Act to encourage and facilitate the disclosure, in the public 6
interest, of corrupt conduct, maladministration and serious and 7
substantial waste in the public sector; and for other purposes. 8
[2] Section 1 9
Omit the section. Insert instead: 10
1 Name of Act 11
This Act is the Public Interest Disclosures Act 1994. 12
[3] Section 4 Definitions 13
Insert in alphabetical order: 14
Advisory Committee means the Public Interest Disclosures 15
Advisory Committee established under section 24A. 16
Disclosures Unit means the Public Interest Disclosures Unit 17
established in the Ombudsman's Office. 18
responsible authority means, in relation to a disclosure made 19
under this Act, the investigating authority, public authority or 20
officer to whom the disclosure is made or, if the disclosure is 21
referred under this Act, the investigating authority, public 22
authority or officer to whom the disclosure is referred. 23
[4] Section 4, definition of "investigating authority" 24
Insert at the end of paragraph (g) of the definition of investigating authority: 25
, or 26
(h) the Health Care Complaints Commission. 27
[5] Section 4, definition of "investigation Act" 28
Insert at the end of paragraph (e) of the definition of investigation Act: 29
, or 30
(f) the Health Care Complaints Act 1993. 31
Page 3
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 1 Amendment of Protected Disclosures Act 1994
[6] Section 5 Application of Act 1
Omit section 5 (2). Insert instead: 2
(2) However, nothing in this Act or the regulations otherwise limits 3
or affects the operation of any provision of, or made under, any 4
other Act or the exercise of the functions conferred or imposed on 5
an investigating authority or any other person or body under any 6
provision of, or made under, any other Act. 7
[7] Section 9A 8
Insert after section 9: 9
9A Public official must have reasonable grounds for believing 10
disclosure true 11
To be protected by this Act, a disclosure must be made by a 12
public official who has reasonable grounds for believing that the 13
disclosure is substantially true. 14
[8] Section 12D 15
Insert after section 12C: 16
12D Disclosure to Health Care Complaints Commission concerning 17
public health system 18
To be protected by this Act, a disclosure by a public official to the 19
Health Care Complaints Commission must: 20
(a) be made in accordance with the Health Care Complaints 21
Act 1993, and 22
(b) be a disclosure that shows or tends to show corrupt 23
conduct, maladministration or serious and substantial 24
waste of public money in connection with the public health 25
system within the meaning of section 6 of the Health 26
Services Act 1997. 27
[9] Section 16 28
Omit the section. Insert instead: 29
16 Disclosures made frivolously or vexatiously not protected 30
If the responsible authority for a disclosure made under this Act 31
gives a notice under section 24D (4), the disclosure in respect of 32
which the notice was given ceases to be (despite any other 33
provision of this Part) protected by this Act on and from the 34
giving of the notice. 35
Page 4
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
[10] Section 19 Disclosure to a member of Parliament or journalist 1
Omit section 19 (4) and (5). 2
[11] Section 20A 3
Insert after section 20: 4
20A Injunctions to prevent reprisals 5
(1) An application under this section may be made to the Supreme 6
Court by: 7
(a) a person who has made a protected disclosure, or 8
(b) the responsible authority for a protected disclosure. 9
(2) If the Court is satisfied, on an application under this section, that 10
a person has engaged or is proposing to engage in conduct in 11
respect of the disclosure that constitutes or would constitute: 12
(a) a contravention of section 20, or 13
(b) attempting to contravene section 20, or 14
(c) aiding, abetting, counselling or procuring a person to 15
contravene section 20, or 16
(d) inducing, or attempting to induce, whether by threats or 17
promises or otherwise, a person to contravene section 20, 18
or 19
(e) being in any way, directly or indirectly, knowingly 20
concerned in, or party to, the contravention by a person of 21
section 20, or 22
(f) conspiring with others to contravene section 20, 23
the Court may grant an injunction in such terms as the Court 24
determines to be appropriate. 25
(3) If in the opinion of the Court it is desirable to do so, the Court 26
may grant an interim injunction pending determination of the 27
application. 28
(4) The Court may rescind or vary an injunction granted under this 29
section. 30
(5) The power of the Court to grant an injunction restraining a person 31
from engaging in conduct may be exercised: 32
(a) whether or not it appears to the Court that the person 33
intends to engage again, or to continue to engage, in 34
conduct of that kind, and 35
(b) whether or not the person has previously engaged in 36
conduct of that kind, and 37
Page 5
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 1 Amendment of Protected Disclosures Act 1994
(c) whether or not there is an imminent danger of substantial 1
damage to any person if the first-mentioned person 2
engages in conduct of that kind. 3
(6) The power of the Court to grant an injunction requiring a person 4
to do an act or thing may be exercised: 5
(a) whether or not it appears to the Court that the person 6
intends to fail again, or to continue to fail, to do that act or 7
thing, and 8
(b) whether or not the person has previously failed to do that 9
act or thing, and 10
(c) whether or not there is an imminent danger of substantial 11
damage to any person if the first-mentioned person fails to 12
do that act or thing. 13
(7) If an investigating authority makes an application to the Court for 14
the grant of an injunction under this section, the Court is not to 15
require the investigating authority or any other person, as a 16
condition of granting an interim injunction, to give any 17
undertakings as to damages. 18
(8) The Supreme Court may direct in an application under this 19
section that: 20
(a) a report of the whole or part of the proceeding for the 21
application must not be published, or 22
(b) evidence given, or anything filed, tendered or exhibited in 23
the application must be withheld from release or search, or 24
released or searched only on a specified condition. 25
(9) A direction under subsection (8) may be given if the Supreme 26
Court considers that: 27
(a) disclosure of the report, evidence or thing would not be in 28
the public interest, or 29
(b) persons other than parties to the application do not have a 30
sufficient legitimate interest in being informed of the 31
report, evidence or thing. 32
(10) An application for an injunction may be heard ex parte if the 33
Supreme Court considers an ex parte hearing is necessary in the 34
circumstances. 35
(11) This section does not limit the power of the Supreme Court. 36
Page 6
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
[12] Part 3A 1
Insert after section 24: 2
Part 3A Public Interest Disclosures Advisory 3
Committee 4
24A Constitution of Advisory Committee 5
(1) There is established by this Act a Public Interest Disclosures 6
Advisory Committee. 7
(2) The Advisory Committee is to consist of not less than 10 8
members, being: 9
(a) the persons holding the offices referred to in 10
subsection (3), and 11
(b) at least 1 person appointed by the Minister. 12
(3) The persons holding the following offices are members of the 13
Advisory Committee: 14
(a) the Auditor-General, 15
(b) the Commissioner for the Commission, 16
(c) the Ombudsman, 17
(d) the Commissioner for the PIC, 18
(e) the PIC Inspector, 19
(f) the Director-General of the Department of Local 20
Government, 21
(g) the ICAC Inspector, 22
(h) the Commissioner of the Health Care Complaints 23
Commission, 24
(i) the Director-General of the Department of Premier and 25
Cabinet, who is to be the Chairperson of the Advisory 26
Committee. 27
(4) The Minister is, as far as practicable, to seek the views of relevant 28
community and professional organisations on the appointment of 29
members of the Advisory Committee under subsection (2) (b). 30
(5) Schedule 1 has effect with respect to the members and procedure 31
of the Advisory Committee. 32
Page 7
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 1 Amendment of Protected Disclosures Act 1994
24B Function of Advisory Committee 1
The principal function of the Advisory Committee is to provide 2
advice to the Minister on the following matters: 3
(a) the effective operation of this Act, 4
(b) proposed regulations, 5
(c) any other matters in respect of protected disclosures that 6
may be referred to the Advisory Committee by the 7
Minister. 8
24C Sub-committees of Advisory Committee 9
(1) The Advisory Committee may establish sub-committees to assist 10
it in connection with the exercise of any of its functions. 11
(2) It does not matter that any or all of the members of a 12
sub-committee are not members of the Advisory Committee. 13
(3) The procedure for the calling of meetings of a sub-committee and 14
for the conduct of business at those meetings is to be as 15
determined by the Advisory Committee or (subject to any 16
determination of the Advisory Committee) by the 17
sub-committee. 18
[13] Section 24D 19
Insert after the heading to Part 4: 20
24D Investigation of matters raised by disclosures 21
(1) The responsible authority for a disclosure made under this Act 22
must investigate a matter raised by the disclosure if the 23
responsible authority is empowered by any provision of this Act 24
or any provision of, or made under, any other Act to investigate 25
the matter. 26
(2) For the removal of doubt, subsection (1) does not in itself confer 27
any power to investigate any matter. 28
(3) The responsible authority for a disclosure made under this Act 29
may decline to investigate, or discontinue the investigation of, a 30
matter referred to in subsection (1) if the responsible authority is 31
empowered by subsection (4) or by any provision of, or made 32
under, any other Act to decline to investigate, or discontinue the 33
investigation of, the matter. 34
Note. Sections 25 and 26 also permit or require a responsible authority 35
for a disclosure to refer the disclosure to another investigating authority, 36
public authority or officer in certain circumstances. 37
Page 8
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
(4) The responsible authority for a disclosure made under this Act 1
may, by notice in writing to the person who made the disclosure, 2
decline to investigate or may discontinue the investigation of any 3
matter raised by the disclosure if the responsible authority is of 4
the opinion that the disclosure was made frivolously or 5
vexatiously. 6
(5) A copy of any notice under subsection (4) must be provided to the 7
principal officer of the Disclosures Unit. 8
(6) Nothing in this section limits any other discretion the responsible 9
authority for a disclosure has to decline to investigate or to 10
discontinue the investigation of a matter (whether under this Act, 11
an investigation Act or any other Act). 12
[14] Sections 2727B 13
Omit section 27. Insert instead: 14
27 Notifications to person making protected disclosure 15
(1) The responsible authority for a disclosure made under this Act 16
must, by notice in writing given not later than 7 days after the 17
disclosure was made or referred to the responsible authority, 18
acknowledge receipt of the disclosure to the person who made the 19
disclosure. 20
(2) If the responsible authority for a disclosure made under this Act 21
determines that the disclosure was never, or has ceased to be, a 22
disclosure protected under this Act, the responsible authority 23
must, by notice in writing given not later than 7 days after making 24
the determination, inform the person who made the disclosure of 25
the determination. 26
(3) The responsible authority for a disclosure made under this Act 27
must, by notice in writing given not later than 6 months after the 28
disclosure was made or referred to the responsible authority, 29
inform the person who made the disclosure as to the action taken 30
or proposed to be taken in respect of the disclosure. 31
(4) If the responsible authority for a disclosure made under this Act 32
declines to investigate or discontinues the investigation of any 33
matter raised by the disclosure other than in the circumstances 34
referred to in section 24D (4), the responsible authority must, by 35
notice in writing given not later than 7 days after the making of 36
the decision, inform the person who made the disclosure of the 37
decision. 38
Page 9
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 1 Amendment of Protected Disclosures Act 1994
(5) The responsible authority for a disclosure made under this Act 1
may, by notice in writing, provide a progress report to the person 2
who made the disclosure on an investigation of a matter raised by 3
the disclosure that is not complete. 4
(6) If the responsible authority for a disclosure made under this Act 5
completes an investigation into a matter arising from the 6
disclosure, the responsible authority must, by notice in writing 7
given not later than 28 days after completing the investigation, 8
inform the person who made the disclosure of the outcome of the 9
investigation and any action that has been taken or is proposed to 10
be taken as a result of the investigation. 11
(7) A responsible authority for a disclosure made under this Act must 12
provide a copy of any notice the responsible authority has given 13
under this section to the principal officer of the Disclosures Unit. 14
27A Limitation on notification 15
A person must not, in a notice given under section 27, give 16
information that, in that person's opinion, would be likely to: 17
(a) affect adversely any person's safety, or 18
(b) affect adversely the investigation of an offence or possible 19
offence, or 20
(c) disclose the identity of a person who has made a protected 21
disclosure other than the person to whom the notice has 22
been given. 23
27B Giving notices not required if function to do so under other Act 24
Nothing in section 27 requires the responsible authority for a 25
disclosure to give a notice in relation to a disclosure if it is the 26
function of the responsible authority to do so under any other Act. 27
[15] Section 29 Proceedings for offences 28
Insert at the end of the section: 29
Note. Since this Act does not expressly confer the right to institute 30
proceedings for an offence against this Act on a specified person or 31
class of persons, such proceedings may, pursuant to section 14 of the 32
Criminal Procedure Act 1986, be instituted by the Director of Public 33
Prosecutions or another public officer (but are not required to be). 34
Page 10
Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
[16] Section 30 Regulations 1
Insert at the end of the section: 2
(2) Without limiting subsection (1), regulations may be made for or 3
with respect to the lodgement, investigation, handling and 4
reporting of disclosures made under this Act. 5
(3) A regulation may create an offence punishable by a penalty not 6
exceeding 250 penalty units (in the case of a corporation) and 100 7
penalty units (in any other case). 8
(4) The regulations may apply, adopt or incorporate (with or without 9
modification) any publication as in force at a particular time or 10
from time to time. 11
[17] Section 32 12
Omit the section. Insert instead: 13
32 Review 14
(1) A joint committee of members of Parliament is to review this Act 15
to determine whether the policy objectives of the Act remain 16
valid and whether the terms of the Act remain appropriate for 17
securing those objectives. 18
(2) The review is to be undertaken as soon as possible after the period 19
of 5 years from the date of assent to the Protected Disclosures 20
Amendment (Supporting Whistleblowers) Act 2008. 21
(3) A report on the outcome of the review is to be tabled in each 22
House of Parliament within 12 months after the end of the period 23
of 5 years. 24
[18] Schedule 1 25
Insert after section 33: 26
Schedule 1 Provisions relating to Advisory 27
Committee 28
(Section 24A (5)) 29
Part 1 Members 30
1 Definitions 31
In this Part: 32
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Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 1 Amendment of Protected Disclosures Act 1994
appointed member means a member of the Advisory Committee 1
other than an ex-officio member. 2
ex-officio member means a member of the Advisory Committee 3
referred to in section 24A (2) (a). 4
2 Terms of office 5
Subject to this Schedule, an appointed member holds office for 6
such period (not exceeding 5 years) as is specified in the 7
member's instrument of appointment, but is eligible for 8
re-appointment. 9
3 Remuneration 10
An appointed member is entitled to be paid such remuneration 11
(including travelling and subsistence allowances) as the Minister 12
may from time to time determine in respect of the member. 13
4 Deputies of members 14
(1) The Minister may, from time to time, appoint a person to be the 15
deputy of an appointed member, and the Minister may revoke any 16
such appointment. 17
(2) An ex-officio member may, from time to time, appoint a person 18
to be the deputy of the member, and the ex-officio member or the 19
Minister may revoke any such appointment. 20
(3) In the absence of a member, the member's deputy: 21
(a) may, if available, act in the place of the member, and 22
(b) while so acting, has all the functions conferred by Part 3A 23
and this Schedule on the member and is to be taken to be a 24
member. 25
(4) Subject to clause 10, the deputy of the member who is the 26
Chairperson of the Advisory Committee does not have the 27
member's functions as Chairperson. 28
(5) A person while acting in the place of an appointed member is 29
entitled to be paid such remuneration (including travelling and 30
subsistence allowances) as the Minister may from time to time 31
determine in respect of the person. 32
5 Vacancy in office of appointed member 33
(1) The office of an appointed member becomes vacant if the 34
member: 35
(a) dies, or 36
(b) completes a term of office and is not re-appointed, or 37
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Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
(c) resigns the office by instrument in writing addressed to the 1
Minister, or 2
(d) is removed from office by the Minister under this clause or 3
under Chapter 5 of the Public Sector Employment and 4
Management Act 2002, or 5
(e) is absent from 4 consecutive meetings of the Advisory 6
Committee of which reasonable notice has been given to 7
the member personally or in the ordinary course of post, 8
except on leave granted by the Minister or unless, before 9
the expiration of 4 weeks after the last of those meetings, 10
the member is excused by the Minister for being absent 11
from those meetings, or 12
(f) becomes bankrupt, applies to take the benefit of any law 13
for the relief of bankrupt or insolvent debtors, compounds 14
with his or her creditors or makes an assignment of his or 15
her remuneration for their benefit, or 16
(g) becomes a mentally incapacitated person, or 17
(h) is convicted in New South Wales of an offence that is 18
punishable by imprisonment for 12 months or more or is 19
convicted elsewhere than in New South Wales of an 20
offence that, if committed in New South Wales, would be 21
an offence so punishable. 22
(2) The Minister may remove an appointed member from office at 23
any time. 24
6 Filling of vacancy in office of member 25
If the office of an appointed member becomes vacant, a person is, 26
subject to this Act, to be appointed to fill the vacancy. 27
7 Effect of certain other Acts 28
(1) The Public Sector Employment and Management Act 2002 does 29
not apply to the appointment of an appointed member and an 30
appointed member is not, as such a member, subject to that Act 31
(except Chapter 5). 32
(2) If by or under any Act provision is made: 33
(a) requiring a person who is the holder of a specified office to 34
devote the whole of his or her time to the duties of that 35
office, or 36
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Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 1 Amendment of Protected Disclosures Act 1994
(b) prohibiting the person from engaging in employment 1
outside the duties of that office, 2
the provision does not operate to disqualify the person from 3
holding that office and also the office of a member or from 4
accepting and retaining any remuneration payable to the person 5
under this Act as an appointed member. 6
(3) The office of a member is not, for the purposes of any Act, an 7
office or place of profit under the Crown. 8
Part 2 Procedure 9
8 General procedure 10
The procedure for the calling of meetings of the Advisory 11
Committee and for the conduct of business at those meetings is, 12
subject to this Act and the regulations, to be as determined by the 13
Advisory Committee. 14
9 Quorum 15
The quorum for a meeting of the Advisory Committee is a 16
majority of its members. 17
10 Presiding member 18
(1) The Chairperson of the Advisory Committee or, in the absence of 19
the Chairperson, the deputy of the member who is the 20
Chairperson is to preside at a meeting of the Advisory 21
Committee. 22
(2) The person presiding at any meeting of the Advisory Committee 23
has a deliberative vote and, in the event of an equality of votes, 24
has a second or casting vote. 25
11 Voting 26
A decision supported by a majority of the votes cast at a meeting 27
of the Advisory Committee at which a quorum is present is the 28
decision of the Advisory Committee. 29
12 Attendance by non-members 30
A person authorised by the Advisory Committee or the 31
Chairperson of the Advisory Committee may attend a meeting of 32
the Advisory Committee for the purpose of assisting the 33
Advisory Committee to exercise its functions. 34
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Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Amendment of Protected Disclosures Act 1994 Schedule 1
13 Transaction of business outside meetings or by telephone etc 1
(1) The Advisory Committee may, if it thinks fit, transact any of its 2
business by the circulation of papers among all the members for 3
the time being, and a resolution in writing approved in writing by 4
a majority of those members is to be taken to be a decision of the 5
Advisory Committee. 6
(2) The Advisory Committee may, if it thinks fit, transact any of its 7
business at a meeting at which members (or some members) 8
participate by telephone, closed-circuit television or other means, 9
but only if any member who speaks on a matter before the 10
meeting can be heard by the other members. 11
(3) For the purposes of: 12
(a) the approval of a resolution under subclause (1), or 13
(b) a meeting held in accordance with subclause (2), 14
the Chairperson and each member have the same voting rights as 15
they have at an ordinary meeting of the Advisory Committee. 16
(4) A resolution approved under subclause (1) is, subject to the 17
regulations, to be recorded in the minutes of the meetings of the 18
Advisory Committee. 19
(5) Papers may be circulated among members for the purposes of 20
subclause (1) by facsimile or other transmission of the 21
information in the papers concerned. 22
14 Minutes 23
The Advisory Committee must cause full and accurate minutes to 24
be kept of the proceedings of each meeting of the Committee. 25
15 First meeting 26
The Minister may call the first meeting of the Advisory 27
Committee in such manner as the Minister thinks fit. 28
[19] Schedule 2 Savings, transitional and other provisions 29
Insert at the end of clause 1 (1): 30
Protected Disclosures Amendment (Supporting Whistleblowers) 31
Act 2008 32
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Protected Disclosures Amendment (Supporting Whistleblowers) Bill 2008
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts 1
(Section 4) 2
2.1 Health Care Complaints Act 1993 No 105 3
Section 94D 4
Insert after section 94C: 5
94D Complaints by public officials 6
(1) A public official within the meaning of the Public Interest 7
Disclosures Act 1994 may complain to the Commission (orally or 8
in writing) about corrupt conduct, maladministration or serious 9
and substantial waste of public money in connection with the 10
public health system within the meaning of section 6 of the 11
Health Services Act 1997. 12
(2) In this section: 13
conduct includes conduct by way of action or inaction or alleged 14
action or inaction. 15
2.2 Ombudsman Act 1974 No 68 16
Section 32A 17
Insert after section 32: 18
32A Public Interest Disclosures Unit 19
There is to be established within the Ombudsman's Office the 20
Public Interest Disclosures Unit. 21
Page 16
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