PUBLIC INTEREST DISCLOSURES ACT 2012 - SECT 26 Assessment of public interest disclosure and determination by the IBAC

PUBLIC INTEREST DISCLOSURES ACT 2012 - SECT 26

    (1)     If—

        (a)     a public interest disclosure is made to the IBAC in accordance with Division 2 of Part 2; or

        (b)     a public interest disclosure is notified to the IBAC under section 21; or

        (c)     a police complaint disclosure is notified to the IBAC under section 22 ; or

        (d)     a police complaint disclosure is made to the IBAC—

the IBAC must assess the disclosure to determine whether or not the disclosure is a public interest complaint.

    (2)     If a disclosure is made or notified to the IBAC in accordance with any other Act, the IBAC may assess the disclosure to determine whether or not the disclosure is a public interest complaint.

    (3)     Following an assessment under subsection (1) or (2), the IBAC must—

        (a)     determine that the disclosure is a public interest complaint if the IBAC considers that—

              (i)     the disclosure shows or tends to show—

    (A)     a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or

    (B)     a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or

              (ii)     the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show—

    (A)     a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or

    (B)     a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or

        (b)     determine that the disclosure is not a public interest complaint in any other case.

Note

The protections under Part 6 apply to a public interest disclosure or a police complaint disclosure whether or not the IBAC has determined that the disclosure is a public interest complaint.

    (4)     A determination under subsection (3) must be made within a reasonable time after the disclosure is made, or notified, to the IBAC.

    (5)     Despite subsection (3)(a) and subject to subsection (6), the IBAC may determine that a disclosure which has been notified to the IBAC under section 21 or 22 is not a public interest complaint if the IBAC considers that—

        (a)     it would be more appropriate for the matter which is the subject of the disclosure to be dealt with by the notifying entity or another public body; or

        (b)     the matter which is the subject of the disclosure has been adequately dealt with—

              (i)     by the notifying entity or another public body as required by law or by another Act; or

              (ii)     as required under an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth.

    (6)     Before determining under subsection (5) that a notified disclosure is not a public interest complaint, the IBAC must—

        (a)     consult with the notifying entity; and

        (b)     unless the disclosure was made anonymously, obtain the consent of the person who made the disclosure for the disclosure to be dealt with other than as a public interest complaint.

    (7)     The IBAC must not exercise any of its powers of investigation under the Independent Broad-based Anti-corruption Commission Act 2011 when making an assessment under subsection (1) or (2).

S. 26A inserted by No. 2/2019 s. 9.