EVIDENCE ACT 1906 - SECT 20K

EVIDENCE ACT 1906 - SECT 20K

20K .         Effect of misconduct as to directions

        (1)         In this section —

        misconduct , in relation to an informant or a journalist, includes any of the following —

            (a)         an offence committed by the informant or journalist;

            (b)         an act or omission on the part of the informant or journalist that renders him or her liable to a civil penalty;

            (c)         deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the informant or journalist;

            (d)         the informant or journalist acting corruptly, or corruptly failing to act, in any capacity;

            (e)         the informant or journalist corruptly taking advantage of his or her position to obtain a benefit for himself, herself or another person or to cause a detriment to another person;

            (f)         the informant or journalist engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity;

            (g)         misuse, on the part of the informant or journalist, of information or material that he or she has acquired in any capacity, whether the misuse is to obtain a benefit for himself, herself or another person or to cause a detriment to another person;

            (h)         conduct providing reasonable grounds for the termination of the informant or journalist’s employment;

                  (i)         conduct providing reasonable grounds for disciplining the informant or journalist in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the informant or journalist’s profession, whether or not he or she is a member of the body that prescribed the standard.

        (2)         A person acting judicially who finds that there was misconduct on the part of an informant or a journalist in relation to obtaining, using, giving or receiving information —

            (a)         may, but is not bound to, give a direction; and

            (b)         must have regard to the principles set out in subsection (3) when deciding whether or not to give a direction.

        (3)         The principles mentioned in subsection (2)(b) are as follows —

            (a)         that generally a direction should be given if —

                  (i)         the misconduct was the commission of an offence under The Criminal Code section 81 or a breach of a public sector standard, code of conduct or code of ethics, as those terms are defined in the Public Sector Management Act 1994 section 3(1); and

                  (ii)         the offence or breach concerned the disclosure of information that was public interest information as defined in the Public Interest Disclosure Act 2003 section 3(1); and

                  (iii)         the information could have been, but was not, disclosed in accordance with the Public Interest Disclosure Act 2003 ;

            (b)         that generally a direction should be given if the information given to a journalist could have been provided, in a way that did not constitute misconduct, to another person to deal with the concern;

            (c)         that generally a direction should be given if the information given to a journalist could have been obtained by the journalist under the Freedom of Information Act 1992 or by other lawful means;

            (d)         that generally a direction should be given if the misconduct involved a breach of privacy that was not warranted in the circumstances, having regard to the value to be attached to —

                  (i)         the privacy of information regarding private citizens generally; or

                  (ii)         the privacy of information regarding matters which may be commercial in confidence; or

                  (iii)         the principle of Cabinet confidentiality; or

                  (iv)         the principle of public interest immunity;

            (e)         that generally a direction should be given if a communication made to a journalist, if published, would give rise to a risk to national security or to the security of the State;

            (f)         that it is otherwise in the public interest to give or refuse to give a direction.

        (4)         For the purposes of this section, if the misconduct is a fact in issue and there are reasonable grounds for believing that there was misconduct on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information, the person acting judicially in the proceeding may so find.

        [Section 20K inserted: No. 31 of 2012 s. 5.]