This concerns protecting people who act in the public interest when disclosing serious wrongdoing to the authorities. This wrongdoing usually relates to environmental and health issues or information relating to corruption, misconduct and maladministration in public administration. Laws protecting informants of public interest information exist at both State and Commonwealth levels.
Legislation:
South Australian legislation
The Public Interest Disclosure Act 2018 (SA), which repealed the Whistleblowers Protection Act 1993 (SA), encourages the disclosure of certain public interest information to relevant authorities where the disclosure is in the public interest [Public Interest Disclosure Act 2018 (SA) s 3]. The Act also provides for procedures in dealing with such disclosures and ensures appropriate protections exist for people who make such disclosures [s 3(a)(ii)].
If either:
A person makes an appropriate disclosure of environmental and health information to the relevant authority; or
A public officer makes an appropriate disclosure of public administration information to the relevant authority
they will not be subject to any liability as a result of that disclosure [s 5(1)].
An appropriate disclosure is one where the disclosure is made to a relevant authority and the person:
In the case of environmental and health information - believes on reasonable grounds that the information is true (or that it may be true and is of sufficient significance to justify its disclosure) [s 5(3)]; or
In the case of public administration information - reasonably suspects that the information raises a potential issue of corruption, misconduct or maladministration in public administration [s 5(4)].
Section 5(5) of the Act prescribes the relevant authority that will be applicable in different circumstances and includes authorities such as the Ombudsman, the police, the Environment Protection Authority or the Office for Public Integrity [s 5(5)].
Where an appropriate disclosure of public interest information has been made to a relevant authority, there is a duty for the authority to take appropriate action in relation to the information and in accordance with ICAC guidelines [s 7]. No action needs to be taken if the information disclosed does not justify further action, or the information relates to a matter that has already been investigated and acted upon by a relevant authority [s 7(2)].
Public interest information may also be disclosed in certain circumstances to a journalist or a member of Parliament (other than a Minister of the Crown) [s 6]. Where a person has previously made an appropriate disclosure to a relevant authority, and has not within the specified time frame received notification that their disclosure has been assessed, they may then disclose that information to a journalist or MP while still enjoying the protections of the Act [s 6].
Offences
Most offences contained within the Public Interest Disclosure Act 2018 (SA) are intended to act as a deterrent to people identifying informants or victimising an informant.
It is an offence to knowingly divulge, without their consent, the identity of an informant except in circumstances where ICAC guidelines apply [see s 8].
Maximum penalty: a fine of up to $20 000, or imprisonment for 2 years.
A person who causes detriment to another as a result of a disclosure under this Act (or in anticipation of a disclosure) can commit an offence of victimisation [s 9].
Maximum penalty: a fine of up to $20 000, or imprisonment for 2 years.
It is an offence to prevent or hinder another person from making an appropriate disclosure of public interest information [s 11].
Maximum penalty: a fine of up to $20 000, or imprisonment for 2 years.
A person who makes a disclosure of public interest information knowing that it is false or misleading will be guilty of making a false or misleading disclosure [s 10].
Maximum penalty: a fine of up to $20 000 or imprisonment for 2 years.
Commonwealth legislation
The Corporations Act 2001 (Cth) also protects officers and employees of a company or other regulated entity who disclose information where they have reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances in relation to the company or regulated entity [s 1317AA(4)]. It is an offence under the Act for a person to be penalised (victimised) for such disclosures.
The Public Interest Disclosure Act 2013 (Cth) protects public officials (wider then public servants, includes defence force and others) who make prescribed disclosures. The disclosure must be made to an authorised officer or to the person's supervisor. The person disclosing the information is protected from civil and criminal liability as well as disciplinary action.
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