Victorian Consolidated Legislation

WHISTLEBLOWERS PROTECTION ACT 2001

No. 36 of 2001
Version incorporating amendments as at 15 January 2009

TABLE OF PROVISIONS

           Section Page

   PART 1-PRELIMINARY

   1.      Purposes
   2.      Commencement
   3.      Definitions
   4.      Exclusion of certain persons and bodies

   PART 2-DISCLOSURES OF IMPROPER CONDUCT

   5.      Who can make a disclosure about improper conduct?
   6.      To whom can a disclosure be made?
   7.      Can a person make an anonymous disclosure?
   8.      Is it necessary to know who has engaged in the conduct about which the disclosure is made?
   9.      Can a disclosure be about past conduct?
   10.     Privileges of Parliament and legal professional privilege not affected

   PART 3-PROTECTION OF WHISTLEBLOWERS

   11.     Application of Part
   12.     What is a protected disclosure?
   13.     Certain further information also protected
   14.     Immunity from liability
   15.     Confidentiality provisions do not apply
   16.     Protection from defamation action
   17.     Liability for own conduct
   18.     Protection from reprisal
   19.     Proceedings for damages for reprisal
   20.     Application for injunction or order
   21.     Injunction or order
   22.     Offence to reveal confidential information
   22A.    Ombudsman may disclose identity of person against whom protected disclosure is made if in public interest
   23.     Certain further disclosures and further information related to disclosures are not protected disclosures

   PART 4-DETERMINATION OF PUBLIC INTEREST DISCLOSURES

           Division 1-Determination by Ombudsman of public interest disclosures

   24.     Determination of disclosure as public interest disclosure
   25.     Notice of determination
   26.     Certain complaints under the Police Regulation Act 1958 to be investigated as public interest disclosures
   27.     Notice of alternative procedure

           Division 2-Disclosures made to public bodies

   28.     Consideration whether a disclosure is a public interest
           disclosure
   29.     What happens if the public body concludes that a disclosure
           is a public interest disclosure?
   30.     What happens if the public body concludes that a disclosure is not a public interest disclosure?
   31.     Request for referral to Ombudsman
   32.     Determination by Ombudsman

           Division 3-Disclosures in relation to members of the police force

   33.     Consideration whether a disclosure is a public interest
           disclosure
   34.     What happens if it is concluded that a disclosure is a public interest disclosure?
   35.     What happens if it is concluded that a disclosure is not a public interest disclosure?
   36.     Request for referral to Ombudsman
   37.     Determination by Ombudsman

   PART 5-INVESTIGATION OF PUBLIC INTEREST DISCLOSURES BY THE OMBUDSMAN

           Division 1-Functions of Ombudsman

   38.     What are the Ombudsman's functions under the Act?

           Division 2-Requirement to investigate

   39.     Duty to investigate
   40.     Which matters do not have to be investigated?
   41.     Referral of matters for investigation otherwise than under this Act
   42.     Referral of public interest disclosures to relevant public body
           for investigation
   43.     Referral of certain public interest disclosures to Director for investigation
   44.     Referral of certain public interest disclosures to Chief Commissioner of Police for investigation
   45.     What information may the Ombudsman provide?
   46.     Notice of referral

           Division 3-Investigation by Ombudsman

   47.     Procedures for investigation
   48.     Secondment of members of the police force for certain investigations
   49.     Secondment of others for certain investigations
   50.     Notice of the investigation
   50A.    Notice of the investigation-police matters
   51.     Investigation to be private
   52.     A hearing is not required
   53.     Legal representation
   54.     How is evidence to be taken?
   55.     Power to require answers etc. of members of the police force
           in certain investigations
   56.     Can privileged or confidential information be disclosed to
           the Ombudsman?
   57.     Deliberations of Ministers and Parliamentary committees not
           to be disclosed
   58.     Power to enter premises
   59.     Consultation and comment
   60.     Obstruction
   61.     Opportunity to be heard before adverse report

           Division 3A-Further provisions for investigations by Director

   61AA.   Definitions
   61A.    Application of Division
   61B.    Evidence in Director investigations
   61BA.   Video-recording of examination
   61BAB.  Underage and impaired witnesses
   61BB.   Power to enter public authority premises
   61BC.   Power to seize documents or things at public authority premises
   61BD.   Copying of, access to or receipt for things seized
   61BE.   Procedure for documents that may be subject to legal professional privilege
   61BF.   Application to Magistrates' Court to decide on legal professional privilege
   61BG.   Application for return of things seized
   61BH.   Return of things seized
   61C.    Powers with search warrant
   61D.    Procedure for executing warrant
   61E.    Copies or receipts to be given
   61F.    Return of documents and other things
   61G.    Confidentiality of summons
   61H.    Contempt of Director
   61I.    No double jeopardy
   61J.    Sunset of contempt provisions
   61K.    Arrest of recalcitrant witnesses
   61L.    Witness already held in custody
   61M.    Consultation and comment
   61N.    Simultaneous investigation and proceedings

           Division 4-Action on completion of investigation

   62.     Director may report to Ombudsman
   63.     Report on investigation
   63A.    Report on investigation-police matters
   64.     Notice of implementation of recommendation
   65.     Chief Commissioner of Police to respond to Ombudsman
   65A.    Referral of matters to DPP
   66.     Report to Parliament
   67.     Person who made disclosure to be informed

   PART 6-INVESTIGATION OF PUBLIC INTEREST DISCLOSURES BY PUBLIC BODIES

           Division 1-Establishment of procedures

   68.     Public body to establish procedures
   69.     Ombudsman's guidelines
   70.     Availability of procedures
   71.     Review of procedures

           Division 2-Requirement to investigate

   72.     Duty to investigate
   73.     Referral to Ombudsman by public body
   74.     Request to Ombudsman by person making disclosure
   75.     Ombudsman may take over an investigation
   76.     Provision of information to Ombudsman
   77.     What can the Ombudsman do?
   78.     Notice of referral

           Division 3-Investigation by public body

   79.     Investigation to be in accordance with procedures
   80.     Information about progress of investigation

           Division 4-Action on investigation

   81.     What action must the public body take?
   82.     Report on investigation
   83.     Report to person making disclosure

   PART 7-INVESTIGATION OF PUBLIC INTEREST DISCLOSURES REFERRED TO CHIEF COMMISSIONER OF POLICE

           Division 1-Requirement to investigate

   84.     Duty to investigate
   85.     Request to Ombudsman by person making disclosure
   86.     Ombudsman may take over an investigation
   87.     Provision of information to Ombudsman
   88.     What can the Ombudsman do?
   89.     Notice of referral

           Division 2-Investigation by Chief Commissioner of Police

   90.     Power to require answers etc. of members of the police force
           in certain investigations
   91.     Progress reports to Ombudsman on investigations

           Division 3-Action on investigation

   92.     What action must the Chief Commissioner of Police take?
   93.     Report to Ombudsman
   94.     Disagreement between Ombudsman and Chief Commissioner on implementation of recommendations
   94A.    Referral of matters to DPP
   95.     Report to person making disclosure

   PART 8-INVESTIGATION OF DISCLOSURES ABOUT MEMBERS OF PARLIAMENT

   96.     Referral of disclosure to Ombudsman
   97.     Determination of disclosure as public interest disclosure
   98.     Notice of determination
   99.     Investigation by Ombudsman
   100.    Investigations to be conducted in accordance with Division 3 of Part 5.
   101.    Report on investigation

   PART 9-ANNUAL REPORTS AND OTHER REPORTS

   102.    Annual report by Ombudsman
   103.    Other reports by Ombudsman
   103A.   Transmission of certain reports to Parliament
   104.    Annual reports by public body
   105.    Reports by councils in relation to disclosures relating to
           officers and employees of councils

   PART 9A-OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR

   105A.   Role of Special Investigations Monitor
   105B.   Director must report summonses to Special Investigations Monitor
   105C.   Director must report arrest warrants to Special
           Investigations Monitor
   105D.   Director must report other matters to Special
           Investigations Monitor
   105E.   Complaints to Special Investigations Monitor
   105F.   Special Investigations Monitor may refuse to investigate complaint
   105G.   Investigation of complaints
   105H.   Recommendations by Special Investigations Monitor
   105I.   Requirement to provide assistance
   105J.   Powers of entry and access
   105K.   Requirement to answer questions and produce documents
   105L.   Annual and other reports by Special Investigations Monitor
   105M.   Repealed
   105N.   Delegation

   PART 10-GENERAL

   106.    Offence to make false disclosure
   107.    Protection of Ombudsman and others
   107A.   Protection of legal practitioners and witnesses
   108.    Evidence not admissible
   109.    Exemption from Freedom of Information Act 1982.
   110.    Supreme Court-limitation of jurisdiction
   111.    Service on a person making a disclosure
   111A.   Transitional provision on creation of office of Police Ombudsman
   111B.   Transitional provision on creation of Office of Police
           Integrity
   111C.   Transitional provision-Whistleblowers Protection Amendment Act 2008.
   112.    Regulations

   PART 11-Repealed

           113-119. Repealed
           ---------------
           ENDNOTES
           1. General Information
           2. Table of Amendments
           3. Explanatory Details
           INDEX