Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill2018

table of provisions

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Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments relating to public interest disclosures

Division 1—Preliminary

3Principal Act

Division 2—Amendment of Protected Disclosure Act2012

4Amendment of title

5Amendment of purposes

6Definitions

7Meaning of improper conduct

8Definitions of public body, public officer and public sector

9New Parts 2 and 3 substituted

10Heading to Part 4 amended

11Section 32 amended

12Section 33 amended

13New section 33A inserted

14New Part 4A inserted

15Related disclosures

16Amendment of section 35

17Related disclosure made by other person

18Related disclosure notified to the IBAC

19New section 37A inserted

20Heading to Part 6 amended

21Section 38 substituted

22Sections 39, 40 and 41 amended

23Section 43 amended

24Management action not prevented

25Protection from reprisal

26Proceedings for damages for reprisal

27Sections 48 and 49 amended

28Application for injunction or order

29Transfer of employee

30Content of assessable disclosure must not be disclosed

31Identity of person making assessable disclosure must not be disclosed

32Circumstances in which information may be disclosed

33Heading to Part 8 amended

34Functions and powers of the IBAC

35Functions and powers of the Victorian Inspectorate

36New section 56A inserted

37Guidelines

38Procedures—entities required to establish procedures

39Annual report by the IBAC

40Annual report by the Victorian Inspectorate

41Annual report by other investigating entities

42New section 71A inserted

43Offence to make false disclosure or provide false further information

44Amendment of section 73

45Section 74 repealed

46Exemption from Freedom of Information Act1982

47New section 83 inserted

48New Schedule 2 inserted

Division 3—Amendment of Independent Broadbased Anticorruption Commission Act2011

49Definitions

50Section 7 amended

51Functions of the IBAC

52Confidentiality notice

53Disclosure subject to confidentiality notice

54Referral of complaint or notification for investigation by another person or body

55New section 73A inserted

56Information to be provided with referral

57Further consequential amendments

Division 4—Amendment of Victorian InspectorateAct2011

58Definitions

59Section 4 substituted

60Functions of the Victorian Inspectorate

61New section 36A inserted

62Confidentiality notice

63Disclosure subject to confidentiality notice

64Investigation of complaint

65Section 45 amended

66Conduct of investigation

67Requirement to provide assistance

68New sections 85D and 85E inserted

69New section 86A inserted

70Advice to a complainant

71Outcome of investigation

72Further consequential amendments

Division 5—Amendment of Ombudsman Act1973

73Definitions

74Procedure relating to investigations

75Section 24 amended

76Confidentiality notice

77Disclosure subject to confidentiality notice

78Division 3 of Part VA repealed

79Further consequential amendments

Division 6—Amendment of Victoria Police Act2013

80Definitions

81What is a police tort?

82Making of complaints

83Heading to Part 10 amended

84Duty to investigate

85Chief Commissioner must inform person who made disclosure of outcome of investigation

86Definitions for Part 10

87Disclosure of restricted matter prohibited

88Section 190 amended

89Further consequential amendments

Division 7—Amendment of Parliamentary Committees Act2003

90Definitions

91IBAC Committee

92New section 12B inserted

Division 8—Amendment of Judicial CommissionofVictoria Act2016

93Definitions

94Referrals by the IBAC

95Notification to the IBAC does not affect complaint or referral

96Withdrawal of complaints and referrals

97Amendment of references to Principal Act

98Actions to be taken before questioning of a witness or requiring production of a document or other thing

99Privilege against self-incrimination abrogated

100Annual report of the Judicial Commission

101Use and disclosure of information

Division 9—Amendment of Local GovernmentAct1989

102Definitions

103Appointment of Chief Municipal Inspector

104New sections 223BA to 223BM inserted

Division 10—Amendment of Racing Act1958

105Definitions

106Functions of the Racing Integrity Commissioner

107New sections 37K to 37W inserted

Division 11—Amendment of Freedom of Information Act1982

108Definitions

109Freedom of information functions

110New Division 3 of Part VIB inserted

Division 12—Consequential amendments ofotherActs

111Amendment of Constitution Act1975

112Amendment of Safe Drinking Water Act2003

Part 3—Amendments relating to persons and bodies administering integrity and accountability legislation

Division 1—Amendment of Independent Broadbased Anticorruption Commission Act2011

113Definitions

114Definitions of public body, public officer and public sector

115The IBAC may receive information

116New section 58A inserted

117Notice of dismissal, investigation or referral of complaint or notification

118Section 98 amended

119Conduct of examinations

120Examinations generally to be held in private

121New section 119A inserted

122Content and form of witness summons

123IBAC to report to Victorian Inspectorate on issue of witness summonses

124Legal representation of witnesses and other persons

125IBAC to inform Victorian Inspectorate of direction in relation to specified Australian legal practitioner

126New section 132A inserted

127Report to Victorian Inspectorate on issue of arrest warrant

128Privileges and secrecy generally

129New section 162A inserted

130Persons who receive reports or information prior to publication

131Offence to disclose certain information received from the IBAC

Division 2—Amendment of Victorian InspectorateAct2011

132Definitions

133Functions of the Victorian Inspectorate

134New section 40A inserted

135New section 41A inserted

136New section 42AA inserted

137New Part 5B inserted

138Complaints

139New section 43A inserted

140Own motion investigation

141Divisions 2 and 3 do not apply

142Matters to be included in annual report

Division 3—Amendment of Freedom of InformationAct1982

143Tabling of report in Parliament

144Reporting by Information Commissioner

145New section 61ZH inserted

Division 4—Amendment of Privacy and DataProtection Act2014

146New section 83GA inserted

Division 5—Amendment of Public Interest MonitorAct2011

147Confidentiality

Part 4—Ombudsman Act1973—generalamendments

148Definitions

149New section 2A inserted

150Section 13 substituted

151Section 13AAA repealed

152Section 13AA substituted

153Conducting of enquiries

154New Parts IIIAB and IIIAC inserted

155Ombudsman may refuse to deal with certain complaints

156Notification to IBAC

157Notification to Victorian Inspectorate

158Notification to Information Commissioner

159Application of Division

160New section 16IA inserted

161Notice of referral

162Division 2E of Part IV repealed

163Procedure relating to investigations

164New sections 18 and 18A to 18G substituted—newsections 18H to 18S inserted

165New section 25AAB inserted

166Persons who receive proposed or draft reports or information in them

167Section 26 repealed

168Unauthorised disclosure

169Confidentiality notice

170Disclosure subject to confidentiality notice

171New Part VAB inserted

172Section 31 substituted

173New section 36 inserted

174Schedule 1—Specified entities

175Schedule 3—Persons and bodies to whom or which the Ombudsman may refer complaints

Part 5—Greater budget independence for Ombudsman, the IBAC and the VictorianInspectorate

Division 1—Amendment of Ombudsman Act1973

176Definitions

177New Part IVA inserted

178Annual and other reports to Parliament

179Transmission of sections 23(6) and 25 reports to Parliament

Division 2—Amendment of Independent Broadbased Anticorruption Commission Act2011

180Definitions

181Matters to be included in annual report

182New Part 8 inserted

Division 3—Amendment of Victorian InspectorateAct2011

183Definitions

184New heading to Division 1 of Part 7 inserted

185New heading to Division 2 of Part 7 inserted

186New sections 90A, 90B, 90C, 90D, 90E and 90F inserted

187New heading to Division 3 of Part 7 inserted

188Matters to be included in annual report

Part 6—Integrity and Oversight Committee

Division 1—Amendment of Parliamentary Committees Act2003

189Definitions

190Establishment of Joint House Committees

191New section 6A substituted

192Section 12A repealed

193Section 12B amended

Division 2—Consequential amendments of Public Interest Disclosures Act2012

194Definitions

195Person or bodies to which certain public interest disclosures must be made

196Person making disclosure may state that disclosure is not a public interest disclosure

197Section 21 amended

198Sections 23, 24 and 25 amended

199Section 31B amended

200Section 33A amended

201Heading to Part 4A amended

202Public interest complaint relating to the Inspector

203Section 33C amended

204Public interest complaint relating to the Victorian Inspectorate or a Victorian Inspectorate Officer

205Section 33E amended

206Further information provided to investigator

207Disclosures to which this Part applies

208Protection from reprisal

209Application for injunction or order

210Content of assessable disclosure must not be disclosed

211Identity of person making assessable disclosure must not be disclosed

212Heading to Part 8 amended

213Section 56A amended

214Procedures—entities required to establish procedures

215Section 71A amended

216Schedule 2 amended

Division 3—Consequential amendments ofotherActs

217Amendment of Parliamentary Salaries and Superannuation Act1968

218Amendment of Ombudsman Act1973

219Amendment of Freedom of Information Act1982

220Amendment of Independent Broad-based Anticorruption Commission Act2011

221Amendment of Victorian Inspectorate Act2011

222Amendment of Victoria Police Act2013

223Amendment of Local Government Act1989

224Amendment of Racing Act1958

Part 7—Statute law revision

Division 1—Amendment of Freedom of InformationAct1982

225Applications to Information Commissioner for review

226Notice and copies of application for review

227Heading to section 64 amended

228Heading to section 64A amended

Division 2—Amendment of Victorian InspectorateAct2011

229Definitions

230Objects of Act

231Functions of the Victorian Inspectorate

232Section 85A renumbered as section 85C

233Recommendations must not include information likely to identify person who makes an assessable disclosure

234Outcome of investigation

235Exemption from Freedom of Information Act1982

Division 3—Amendment of Privacy and DataProtection Act2014

236Information Commissioner to give notice before certain disclosures

Part 8—Repeal

237Repeal of amending Act

Schedule 1—Further consequential amendments relating to public interestdisclosures

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Endnotes

1General information

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581444B.I-6/2/2018BILL LA INTRODUCTION 6/2/2018

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Introduced in the Assembly

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill2018

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581444B.I-6/2/2018BILL LA INTRODUCTION 6/2/2018

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A Bill for an Act to amend theProtected Disclosure Act2012,the Independent Broad-based Anti-corruption Commission Act2011, the Victorian Inspectorate Act2011, the Public Interest Monitor Act2011, the Ombudsman Act1973 and the Parliamentary Committees Act2003and make consequential amendments tootherActs to make Victoria's integrity and accountability system clearer and more efficient and to otherwise improve its operationandfor other purposes.

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581444B.I-6/2/2018BILL LA INTRODUCTION 6/2/2018

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581444B.I-6/2/2018BILL LA INTRODUCTION 6/2/2018

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill2018

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581444B.I-6/2/2018BILL LA INTRODUCTION 6/2/2018

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill2018

The Parliament of Victoriaenacts:

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581444B.I-6/2/2018BILL LA INTRODUCTION 6/2/2018

Schedule 1—Further consequential amendments relating to public interestdisclosures

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill2018

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Protected Disclosure Act2012 and make related amendments toother Acts—

(i)to change the title of that Act and the provisions of the Act to refer instead to "public interest disclosures" and "public interest complaints"; and

(ii)to encourage and facilitate the reporting of improper conduct in the public sector by—

(A)expanding and clarifying the typesof wrongdoing that can be disclosed and investigated as a public interest complaint; and

(B)clarifying and simplifying the pathways and procedures for making a public interest disclosure; and

(C)clarifying and simplifying confidentiality obligations, including allowing access to support services; and

(D)protecting external disclosures in limited circumstances; and

(iii)to expand the range of bodies that may investigate a public interest complaint; and

(iv)to permit disclosures about a Public Interest Monitor, the Victorian Inspectorate and a Victorian Inspectorate Officer; and

(v)to clarify the processes, powers and confidentiality obligations applying to disclosures about members of Victoria Police personnel; and

(b) to make Victoria's integrity and accountability system clearer and more efficient and improve on its operation by—

(i)amending the Independent Broad-based Anti-corruption Commission Act2011 to improve the IBAC's powers in relation to public examinations, complaints handling andthe provision of advance copies ofreports; and

(ii)amending the Victorian Inspectorate Act2011 to clarify the oversight by theVictorian Inspectorate of the IBAC, theOmbudsman, the Victorian Auditor-General's Office, the Chief Examiner and the Information Commissioner; and

(iii)amending the Freedom of Information Act1982 and the Privacy and Data Protection Act2014 to ensure that coercive powers exercised by the Information Commissioner are able to be subject to oversight by the Victorian Inspectorate; and

(iv)amending the Public Interest Monitor Act2011 to allow a Public Interest Monitor to disclose confidential information to allow oversight by the Victorian Inspectorate and to a lawyer for the purpose of obtaining legal advice; and

(c) to amend the Ombudsman Act1973—

(i)to clarify the purposes of that Act; and

(ii)to provide the Ombudsman with modern functions to help the Ombudsman resolve complaints andpromote improved public administration; and

(iii)to provide the Ombudsman with clearjurisdiction over complaints aboutpublicly funded services; and

(iv)to modernise and clarify the Ombudsman's investigation powers;and

(v)toallow complainants aged 10 to 16years to provide information to theOmbudsman on a voluntary basis, subject to appropriate safeguards; and

(vi)to allow the Ombudsman to share information with a body to which the Ombudsman has referred a matter and with an authority to help them improve their complaints handling practices; and

(vii)to make other operational and technical improvements; and

(d) to amend the Ombudsman Act1973, the Independent Broad-based Anti-corruption Commission Act2011 and the Victorian Inspectorate Act2011 to allow funding to the Ombudsman, the IBAC and the Victorian Inspectorate to be allocated each financial year through the Parliament Appropriation Bill as a separately disclosed budget line; and

(e) to amend the Parliamentary Committees Act2003and make consequential amendments to other Acts to streamline the Parliamentary oversight of the integrity and accountability system by merging the current IBAC Committee and the Accountability and Oversight Committeeinto a new Integrity and Oversight Committee.

2Commencement

(1)Parts 1, 7 and 8 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsections (3) and (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision of this Act, other than Part 5, does not come into operation before 1 January 2019, itcomes into operation on that day.

(4) Part 5 comes into operation on 1July 2020.

Part 2—Amendmentsrelating to publicinterest disclosures

Division 1—Preliminary

3Principal Act

In this Part, the Protected Disclosure Act2012 is called the Principal Act.

Division 2—Amendment of Protected Disclosure Act2012

4Amendment of title

In the title to the Principal Act, for "Protected Disclosure" substitute "Public Interest Disclosures".

5Amendment of purposes

After section (1)(b) of the Principal Act insert—

"(ba)to ensure that those disclosures are properlyassessed and, where necessary, investigated;".

6Definitions

(1)In section 3 of the Principal Act insert the following definitions—

"Chief Municipal Inspector has the same meaning as it has in section 3(1) of theLocalGovernment Act1989;

IBAC Committee has the same meaning as it hasin section 3(1) of the Independent Broad-based Anti-corruption CommissionAct2011;

Information Commissioner has the same meaningas it has in section 5(1) of the Freedom of Information Act1982;

misdirected disclosure has the meaning given insection 18(1);

public interest complaint means a disclosure thathas been determined under section 26, 31or31B to be a public interest complaint;

public interest disclosure has the meaning given in section 9;

Racing Integrity Commissioner has the same meaning as it has in section 3(1) of the Racing Act1958;".

(2) In section 3 of the Principal Act, for the definition of assessable disclosuresubstitute—

"assessable disclosure means—

(a)a disclosure that, under section 21(2), must be notified to the IBAC, the Victorian Inspectorate or the IBAC Committee;

(b) a disclosure that, under section 21(3), may be notified to the IBAC, the Victorian Inspectorate or the IBAC Committee;

(c) a disclosure that, under section 36(2), must be notified to the IBAC, the Victorian Inspectorate or the IBAC Committee;

(d)a disclosure made to the IBAC in accordance with Division 2 of Part 2;

(e) a disclosure made to the Victorian Inspectorate under section 14(b);

(f)a disclosure made to the IBAC Committee under section 14(a);

(g)a police complaint disclosure that, under section 22, must be notified tothe IBAC;

(h)a police complaint disclosure made tothe IBAC;".

(3) In section 3 of the Principal Act, in the definition of investigating entity—

(a)in paragraph (e), for "protected disclosure complaint" substitute "public interest complaint";

(b) after paragraph (e) insert—

"(f) the Chief Municipal Inspector;

(g) the Racing Integrity Commissioner;

(h) the Information Commissioner;".

(4) In section 3 of the Principal Act, the definitions ofprotected disclosure and protected disclosure complaint are repealed.

7Meaning of improper conduct

(1)For section 4(1) and (2) of the Principal Act substitute—

"(1) For the purposes of this Act, improper conduct means—

(a)corrupt conduct; or

(b)conduct of a public officer or public body engaged in by the public officer or public body in their capacity as a public officer or a public body that constitutes—

(i)a criminal offence; or

(ii)serious professional misconduct; or

(iii) dishonest performance of public functions; or

(iv) an intentional or reckless breach of public trust; or

(v)an intentional or reckless misuseof information or material acquired in the course of the performance of the functions of the public officer or public body; or

(vi)a substantial mismanagement of public resources; or

(vii)a substantial risk to the health or safety of one or more persons; or

(viii) a substantial risk to the environment; or

(c)conduct of any person that—

(i)adversely affects the honest performance by a public officer orpublic body of their functions as a public officer or public body; or

(ii)is intended to adversely affect theeffective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body and results in the person, or an associate of the person, obtaining—

(A)a licence, permit, approval, authority or other entitlement under any Act or subordinate instrument; or

(B)an appointment to a statutory office or as a member of the board of any public body under any Act or subordinate instrument; or

(C)a financial benefit or real or personal property; or

(D)any other direct or indirect monetary or proprietary gain—

that the person or associate would not have otherwise obtained; or

(d)conduct of any person that could constitute a conspiracy or attempt to engage in any of the conduct referred toin paragraph (a), (b) or (c).

(2)Despite subsection (1), conduct that is trivial does not constitute improper conduct for the purposes of this Act.".

(2)In section 4(2A) and (2B) of the Principal Act, for "section 4(2)(da)" substitute "section 4(1)(c)(ii)".

8Definitions of public body, public officer and public sector

In section 6 of the Principal Act—

(a)in the definition of public body, after paragraph (b) insert—

"(ba)the Victorian Inspectorate; or";

(b)in the definition of public officer, after paragraph (b) insert—

"(ba)a Victorian Inspectorate Officer; or

(bb)a Public Interest Monitor; or".

9New Parts 2 and 3 substituted

For Parts 2 and 3 of the Principal Act substitute—

"Part 2—Public interest disclosures

Division 1—General

9Public interest disclosure

(1)Subject to subsection (3) and Division 3, a public interest disclosure is a disclosure by anatural person of—

(a)information that shows or tends to show—

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

(ii)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)information that the person reasonably believes shows or tends to show—

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

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

(2)A public interest disclosure may be about conduct that has occurred before the commencement of this section.

(3) A disclosure regarding the conduct of, or actions taken by, any of the following is nota public interest disclosure—

(a)the Office of the Special Investigations Monitor;

(b)the Special Investigations Monitor;

(c)a court;

(d)an investigating panel;

(e)a member of an investigating panel.

10Not necessary to identify person or body to whom public interest disclosure relates

A public interest disclosure may be made even if the person making the disclosure cannot identify the person or the body to whom or to which the disclosure relates.

11Complaints, notifications and disclosures under other Acts may be public interest disclosures

A disclosure may be a public interest disclosure even if it is a complaint, notification or disclosure (however described) made under another Act.

Division 2—How and to whom a public interest disclosure may be made

12How a public interest disclosure may be made

(1)A public interest disclosure to an entity must be made in accordance with the procedures established by the entity under section 58.

(2) A public interest disclosure to an entity maybe made to a person permitted to receive a disclosure on behalf of the entity(apermitted person).

(3) A public interest disclosure may be made orally or in writing.

(4) A public interest disclosure made to an entity in writing must be addressed to the entity ora permitted person and sent (by post or electronically) or delivered to, or left at, the office of the entity or the permitted person.

(5) For the purposes of this Division, a person specified in column 2 of the Table in Schedule 2 is permitted to receive a public interest disclosure on behalf of the entity specified opposite in column 1 of that Table.

12APublic interest disclosure may be made anonymously

(1) Despite any contrary provision in any otherAct (other than the Charter of HumanRights and Responsibilities Act2006), apublic interest disclosure maybe made anonymously.

(2) A provision of this or any other Act requiring an entity to notify, advise or otherwise communicate with a person who has made a public interest disclosure does not apply if the person makes the disclosure anonymously.

13Persons or bodies to which public interest disclosures may be made

(1)Unless required to be made to another entityunder section 14 or 17, a public interest disclosure must be made to a personor entity in accordance with this section.

(2)A public interest disclosure may be made to—

(a)the IBAC; or

(b)the Ombudsman; or

(c)the Victorian Inspectorate.

(3) A public interest disclosure may be made to a public service body within the meaning of section (4)(1) of the Public Administration Act2004 if the disclosure relates to the conduct of the public service body or of a member, officer or employee of the public service body.