Chapters

The Public Interest Disclosures Act 2002 (Tas)

The Public Interest Disclosures Act was instituted in order to ‘encourage and facilitate disclosures of improper conduct by public officers and public bodies, to protect persons making those disclosure and others from reprisals, to provide for the matters disclosed to properly investigated and dealt with.’ The Act empowers public officers who have reasonable grounds to believe that another public officer or body has engaged in improper conduct can disclose the improper conduct (s6). This also limits the scope of the Act in that it does not cover disclosures from all Tasmanians, only those who meet the definition of public officer.

Disclosures in any of the following circumstances are called ‘protected disclosures’ (s14), and there is no civil, administrative or criminal liability on a person who makes a protected disclosure (s16). Disclosures can be made to the public body involved, the Ombudsman, and depending on whether it falls within the interest of either party: the State Service Commissioner or the Commissioner of Police (s7(1)). If a disclosure is about the Commissioner of Police, then the disclosure is to be made to the Ombudsman (s7(3)). If a disclosure concerns a member of Parliament, the relevant party is the President of the Legislative Council, or the Speaker of the House of Assembly (s7(4)). Disclosure may be anonymous (s8).

Legal professional privilege is not affected by this Act (s11), and disclosure cannot be made about conduct that preceded the passage of the Act by more than 3 years (s10).

The Act protects individuals from reprisals for disclosing improper conduct (s19) and includes a provision for obtaining damages where reprisal does occur (s20). The Ombudsman has an active role under the Act to investigate disclosure (Part 6, Division 3).

The Public Interest Disclosures Act 2002 has been part of the legislative reform that saw the passage of the Right to Information Act 2009. Section 90 of the Public Interest Act exempts information from the Right to Information Act where the information is disclosed in relation to disclosures of improper conduct and detrimental action (Part 2 of the Act), where the information would likely lead to identification of a person who made such a disclosure, or where the information would identify a person against who a disclosure was made.

The consequences of a finding of improper conduct or detrimental action are generally contained within recommendation issued by the investigator – the Ombudsman (s57). A person about who a disclosure has been made has a right of defence under section 55  and the Ombudsman cannot make a report until that person has had an opportunity to be heard. The outcome of an investigation by the Police Commissioner (ss12 and 75), State Service Commissioner (s28) or the Integrity Commission (s29A) will be internal. If the matter is referred to the Ombudsman, who determines that it is a public interest issue, the Ombudsman will issue a report. This may be exempt from disclosure under the Right to Information Act, depending on whether the report falls into any of the exemption categories, the report is intended for Parliament but has not been presented yet (deferral of disclosure), or the report will be available within a year through other avenues (s17).

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