Whistleblowers Protection Act 2001

i Whistleblowers Protection Act 2001 Act No. 36/2001 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Definitions 2 4. Exclusion of certain persons and bodies 7 PART 2—DISCLOSURES OF IMPROPER CONDUCT 9 5. Who can make a disclosure about improper conduct? 9 6. To whom can a disclosure be made? 9 7. Can a person make an anonymous disclosure? 10 8. Is it necessary to know who has engaged in the conduct about which the disclosure is made? 10 9. Can a disclosure be about past conduct? 10 10. Privileges of Parliament and legal professional privilege not affected 11 PART 3—PROTECTION OF WHISTLEBLOWERS 12 11. Application of Part 12 12. What is a protected disclosure? 12 13. Certain further information also protected 12 14. Immunity from liability 12 15. Confidentiality provisions do not apply 12 16. Protection from defamation action 13 17. Liability for own conduct 13 18. Protection from reprisal 13 19. Proceedings for damages for reprisal 14 20. Application for injunction or order 14 21. Injunction or order 15 22. Offence to reveal confidential information 15 23. Certain further disclosures and further information related to disclosures are not protected disclosures 16 PART 4—DETERMINATION OF PUBLIC INTEREST DISCLOSURES 19 -- 1 of 77 -- Section Page ii Division 1—Determination by Ombudsman of public interest disclosures 19 24. Determination of disclosure as public interest disclosure 19 25. Notice of determination 19 26. Certain complaints under the Police Regulation Act 1958 to be investigated as public interest disclosures 20 27. Notice of alternative procedure 20 Division 2—Disclosures made to public bodies 21 28. Consideration whether a disclosure is a public interest disclosure 21 29. What happens if the public body concludes that a disclosure is a public interest disclosure? 21 30. What happens if the public body concludes that a disclosure is not a public interest disclosure? 22 31. Request for referral to Ombudsman 22 32. Determination by Ombudsman 23 Division 3—Disclosures in relation to members of the police force 23 33. Consideration whether a disclosure is a public interest disclosure 23 34. What happens if it is concluded that a disclosure is a public interest disclosure? 24 35. What happens if it is concluded that a disclosure is not a public interest disclosure? 24 36. Request for referral to Ombudsman 25 37. Determination by Ombudsman 25 PART 5—INVESTIGATION OF PUBLIC INTEREST DISCLOSURES BY THE OMBUDSMAN 26 Division 1—Functions of Ombudsman 26 38. What are the Ombudsman's functions under the Act? 26 Division 2—Requirement to investigate 27 39. Duty to investigate 27 40. Which matters do not have to be investigated? 27 41. Referral of matters for investigation otherwise than under this Act 27 42. Referral of public interest disclosures to relevant public body for investigation 28 43. Referral of certain public interest disclosures to Deputy Ombudsman for investigation 28 44. Referral of certain public interest disclosures to Chief Commissioner of Police for investigation 29 45. What information may the Ombudsman provide? 29 46. Notice of referral 29 -- 2 of 77 -- Section Page iii Division 3—Investigation by Ombudsman 29 47. Procedures for investigation 29 48. Secondment of members of the police force for certain investigations 30 49. Secondment of others for certain investigations 30 50. Notice of the investigation 31 51. Investigation to be private 32 52. A hearing is not required 32 53. Legal representation 32 54. How is evidence to be taken? 32 55. Power to require answers etc. of members of the police force in certain investigations 33 56. Can privileged or confidential information be disclosed to the Ombudsman? 33 57. Deliberations of Ministers and Parliamentary committees not to be disclosed 34 58. Power to enter premises 35 59. Consultation and comment 35 60. Obstruction 36 61. Opportunity to be heard before adverse report 36 Division 4—Action on completion of investigation 36 62. Report on investigation by Deputy Ombudsman to Ombudsman 37 63. Report on investigation 37 64. Notice of implementation of recommendation 38 65. Implementation of recommendations in relation to members of the police force 38 66. Report to Parliament 39 67. Person who made disclosure to be informed 39 PART 6—INVESTIGATION OF PUBLIC INTEREST DISCLOSURES BY PUBLIC BODIES 41 Division 1—Establishment of procedures 41 68. Public body to establish procedures 41 69. Ombudsman's guidelines 41 70. Availability of procedures 42 71. Review of procedures 42 Division 2—Requirement to investigate 43 72. Duty to investigate 43 73. Referral to Ombudsman by public body 43 74. Request to Ombudsman by person making disclosure 43 75. Ombudsman may take over an investigation 43 -- 3 of 77 -- Section Page iv 76. Provision of information to Ombudsman 44 77. What can the Ombudsman do? 44 78. Notice of referral 44 Division 3—Investigation by public body 45 79. Investigation to be in accordance with procedures 45 80. Information about progress of investigation 45 Division 4—Action on investigation 46 81. What action must the public body take? 46 82. Report on investigation 46 83. Report to person making disclosure 47 PART 7—INVESTIGATION OF PUBLIC INTEREST DISCLOSURES REFERRED TO CHIEF COMMISSIONER OF POLICE 48 Division 1—Requirement to investigate 48 84. Duty to investigate 48 85. Request to Ombudsman by person making disclosure 48 86. Ombudsman may take over an investigation 48 87. Provision of information to Ombudsman 49 88. What can the Ombudsman do? 49 89. Notice of referral 50 Division 2—Investigation by Chief Commissioner of Police 50 90. Power to require answers etc. of members of the police force in certain investigations 50 91. Progress reports to Ombudsman on investigations 50 Division 3—Action on investigation 51 92. What action must the Chief Commissioner of Police take? 51 93. Report to Ombudsman 51 94. Implementation of recommendations 51 95. Report to person making disclosure 52 PART 8—INVESTIGATION OF DISCLOSURES ABOUT MEMBERS OF PARLIAMENT 53 96. Referral of disclosure to Ombudsman 53 97. Determination of disclosure as public interest disclosure 53 98. Notice of determination 53 99. Investigation by Ombudsman 54 -- 4 of 77 -- Section Page v 100. Investigations to be conducted in accordance with Division 3 of Part 5 54 101. Report on investigation 54 PART 9—ANNUAL REPORTS AND OTHER REPORTS 55 102. Annual report by Ombudsman 55 103. Other reports by Ombudsman 56 104. Annual reports by public body 57 105. Reports by councils in relation to disclosures relating to officers and employees of councils 58 PART 10—GENERAL 59 106. Offence to make false disclosure 59 107. Protection of Ombudsman and officers of Ombudsman 59 108. Evidence not admissible 60 109. Exemption from Freedom of Information Act 1982 61 110. Supreme Court—limitation of jurisdiction 62 111. Service on a person making a disclosure 62 112. Regulations 62 PART 11—AMENDMENT OF RELATED ACTS 63 Division 1—Amendment of Ombudsman Act 1973 63 113. Protection of the Ombudsman and the officers of the Ombudsman 63 114. New section 29A inserted 64 29A. Exemption from Freedom of Information Act 1982 64 115. New section 30A inserted 64 30A. Supreme Court—limitation of jurisdiction 64 Division 2—Amendment of Police Regulation Act 1958 65 116. Breaches of discipline 65 117. Making of complaints 65 118. New section 86LA inserted 66 86LA. Whistleblowers Protection Act 2001 applies to certain complaints 66 119. New section 86TA inserted 67 86TA. Exemption from Freedom of Information Act 1982 67 ═══════════════ ENDNOTES 68 -- 5 of 77 -- 1 Whistleblowers Protection Act 2001† [Assented to 19 June 2001] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to encourage and facilitate disclosures of improper conduct by public officers and public bodies; and (b) to provide protection for— (i) persons who make those disclosures; and Victoria No. 36 of 2001 -- 6 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 2 (ii) persons who may suffer reprisals in relation to those disclosures; and (c) to provide for the matters disclosed to be properly investigated and dealt with. 2. Commencement (1) Sections 1, 114, 119 and this section come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on 1 January 2002. 3. Definitions (1) In this Act— "corrupt conduct" means— (a) conduct of a person (whether or not a public officer) that adversely affects, or could adversely affect, either directly or indirectly, the honest performance of a public officer's or public body's functions; or (b) conduct of a public officer that amounts to the performance of any of his or her functions as a public officer dishonestly or with inappropriate partiality; or (c) conduct of a public officer, a former public officer or a public body that amounts to a breach of public trust; or (d) conduct of a public officer, a former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their functions as such (whether for the benefit of that person or body or otherwise); or s. 2 -- 7 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 3 (e) a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (d); "councillor" means a councillor of a municipal council; "Deputy Ombudsman" means the Deputy Ombudsman within the meaning of the Ombudsman Act 1973; "detrimental action" includes— (a) action causing injury, loss or damage; and (b) intimidation or harassment; and (c) discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including the taking of disciplinary action; "disclosed matter" means a matter disclosed in a disclosure determined by the Ombudsman under Part 4 or Part 8 to be a public interest disclosure; "improper conduct" means— (a) corrupt conduct; or (b) a substantial mismanagement of public resources; or (c) conduct involving substantial risk to public health or safety; or (d) conduct involving substantial risk to the environment— that would, if proved, constitute— (e) a criminal offence; or s. 3 -- 8 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 4 (f) reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public officer who was, or is, engaged in that conduct; "Ombudsman" means the person appointed as the Ombudsman under section 3 of the Ombudsman Act 1973; "Police Minister" means the Minister for the time being administering Part IVA of the Police Regulation Act 1958; "protected disclosure" has the meaning given to it by section 12; "public body" means— (a) an Agency within the meaning of the Public Sector Management and Employment Act 1998; (b) the chief executive officer of a municipal council, but only in relation to an officer or employee of that council; (c) the Chief Commissioner of Police, but only in relation to a person employed in that office who is not a member of the police force; (d) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose; (e) a body whose members, or a majority of whose members, are appointed by the Governor in Council or a Minister; (f) a company all the shares or a majority of the shares in which are held by the State or another public body; s. 3 -- 9 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 5 (g) a body, whether corporate or unincorporate— (i) supported directly or indirectly by government funds or other assistance; or (ii) over which the State is in a position to exercise control— that is prescribed for the purposes of this Act; (h) a university; (i) a TAFE college within the meaning of the Vocational Education and Training Act 1990; (j) a public hospital within the meaning of the Health Services Act 1988; (k) a State funded residential care service within the meaning of the Health Services Act 1988; (l) a contractor, or a sub-contractor, within the meaning of Part 3A of the Health Services Act 1988, but only in its capacity as a provider of health services to public hospital patients in accordance with an agreement under section 69B(1) of that Act; (m) a contractor within the meaning of the Corrections Act 1986 or a sub- contractor of that contractor, but only in relation to a function or duty or the exercise of a power conferred on it by or under that Act— but does not include a body specified in section 4(1); "public officer" means— s. 3 -- 10 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 6 (a) a member of Parliament; (b) a councillor; (c) a member, officer or employee of a public body other than a university; (d) a member of the governing body of a public body other than a university; (e) an officer or employee of a municipal council; (f) an officer or employee or a member of the academic staff of a university, or a member of the governing authority of a university; (g) a member of the police force; (h) a protective services officer appointed under Part VIA of the Police Regulation Act 1958; (i) a person who is employed in the office of the Chief Commissioner of Police and who is not a member of the police force; (j) the holder of an office established by or under an Act to which the right to appoint is vested in the Governor in Council or a Minister; (k) a member of the teaching service within the meaning of the Teaching Service Act 1981— but does not include a person specified in section 4(2); "relevant Minister" means— s. 3 -- 11 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 7 (a) in relation to a public body, the Minister responsible for that public body; or (b) in relation to a public officer, means the Minister responsible for that public officer; "university" means an institution listed in Schedule 1 to the Tertiary Education Act 1993 that is a body politic and is governed by a council, some of the members of which are appointed by the Governor in Council or a Minister. (2) For the purposes of this Act, the chief executive officer of a municipal council is to be taken to be the chief executive officer of a public body in relation to an officer or employee of that council. (3) For the purposes of this Act, the Chief Commissioner of Police is to be taken to be the chief executive officer of a public body in relation to a person who is employed in the office of the Chief Commissioner of Police and who is not a member of the police force. (4) For the purposes of this Act, a reference to a member of the police force includes a reference to a protective services officer. 4. Exclusion of certain persons and bodies (1) The following bodies are not public bodies for the purposes of this Act— (a) a court; (b) a board, tribunal, commission or other body presided over by a judge, magistrate or legal practitioner presiding as such by virtue of a statutory requirement and appointment. s. 4 -- 12 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 8 (2) The following persons are not public officers for the purposes of this Act— (a) a judge of the Supreme Court; (b) a judge of the County Court; (c) a master of the Supreme Court; (d) a master of the County Court; (e) a magistrate; (f) a member of the Victorian Civil and Administrative Tribunal; (g) the Director of Public Prosecutions; (h) the Auditor-General; (i) the Ombudsman; (j) the Electoral Commissioner; (k) an officer of the Parliament or an employee within the meaning of the Parliamentary Officers Act 1975; (l) a judicial employee within the meaning of section 51 of the Public Sector Management and Employment Act 1998. _______________ s. 4 -- 13 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 9 PART 2—DISCLOSURES OF IMPROPER CONDUCT 5. Who can make a disclosure about improper conduct? A natural person who believes on reasonable grounds that a public officer or public body— (a) has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or (b) has taken, is taking or proposes to take detrimental action in contravention of section 18— may disclose that improper conduct or detrimental action in accordance with this Part. 6. To whom can a disclosure be made? (1) Subject to this section, a disclosure under this Part may be made to— (a) the Ombudsman; or (b) if the disclosure relates to a member, officer or employee of a public body, that public body. (2) A disclosure that relates to a member of Parliament must be made to— (a) the President of the Legislative Council, if the member is a member of the Legislative Council; or (b) the Speaker of the Legislative Assembly, if the member is a member of the Legislative Assembly. (3) A disclosure that relates to a councillor must be made to the Ombudsman. s. 5 -- 14 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 10 (4) A disclosure that relates to the Chief Commissioner of Police must be made to the Ombudsman or the Deputy Ombudsman. (5) A disclosure that relates to any other member of the police force may be made to— (a) the Ombudsman; or (b) the Deputy Ombudsman; or (c) the Chief Commissioner of Police. (6) A disclosure— (a) may be made orally or in writing; and (b) must be made in accordance with the prescribed procedure. (7) A disclosure made in relation to a member of Parliament is not to be taken to be a contempt of Parliament. 7. Can a person make an anonymous disclosure? A person may make a disclosure under this Part anonymously. 8. Is it necessary to know who has engaged in the conduct about which the disclosure is made? A person may make a disclosure under this Part even if the person cannot identify the person or body to whom or which the disclosure relates. 9. Can a disclosure be about past conduct? A person may make a disclosure under this Part about conduct that has occurred before the commencement of this section. s. 7 -- 15 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 11 10. Privileges of Parliament and legal professional privilege not affected (1) Nothing in this Act derogates from the privileges, immunities and powers held, possessed or enjoyed by custom, statute or other law or otherwise of— (a) the Parliament; and (b) each House of Parliament; and (c) the President of the Legislative Council; and (d) the Speaker of the Legislative Assembly; and (e) the members and Committees of each House of Parliament; and (f) the joint Committees of the Parliament. (2) Nothing in this Act entitles a person to disclose information that is the subject of legal professional privilege. _______________ s. 10 -- 16 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 12 PART 3—PROTECTION OF WHISTLEBLOWERS 11. Application of Part This Part only applies to a protected disclosure. 12. What is a protected disclosure? A protected disclosure is a disclosure made in accordance with Part 2. 13. Certain further information also protected (1) Subject to section 23, if a person who makes a disclosure in accordance with Part 2 provides further information relating to that disclosure to a person or body listed in sub-section (2), that further information is to be treated as if it were a protected disclosure for the purposes of this Part. (2) Sub-section (1) applies to further information provided to— (a) the President of the Legislative Council; or (b) the Speaker of the Legislative Assembly; or (c) the Ombudsman; or (d) the Deputy Ombudsman; or (e) the Chief Commissioner of Police; or (f) a public body. 14. Immunity from liability A person who makes a protected disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the protected disclosure. 15. Confidentiality provisions do not apply s. 11 s. 15 -- 17 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 13 Without limiting section 14, a person who makes a protected disclosure does not by doing so— (a) commit an offence under section 95 of the Constitution Act 1975 or a provision of any other Act that imposes a duty to maintain confidentiality with respect to a matter or any other restriction on the disclosure of information; or (b) breach an obligation by way of oath or rule of law or practice or under an agreement requiring him or her to maintain confidentiality or otherwise restricting the disclosure of information with respect to a matter. 16. Protection from defamation action Without limiting section 14, in proceedings for defamation there is a defence of absolute privilege in respect of the making of a protected disclosure. 17. Liability for own conduct Despite anything to the contrary in this Part, a person's liability for his or her own conduct is not affected by the person's disclosure of that conduct under this Act. 18. Protection from reprisal (1) A person must not take detrimental action against a person in reprisal for a protected disclosure. Penalty: 240 penalty units or 2 years imprisonment or both. (2) A person takes detrimental action in reprisal for a protected disclosure if— (a) the person takes or threatens to take the action because— -- 18 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 14 (i) a person has made, or intends to make, a protected disclosure; or (ii) the person believes that a person has made or intends to make the protected disclosure; or (b) the person incites or permits another person to take or threaten to take the action for either of those reasons. (3) In determining whether a person takes detrimental action in reprisal it is irrelevant whether or not a reason referred to in sub-section (2) is the only or dominant reason as long as it is a substantial reason. 19. Proceedings for damages for reprisal (1) A person who takes detrimental action against a person in reprisal for a protected disclosure is liable in damages to that person. (2) The damages may be recovered in proceedings as for a tort in any court of competent jurisdiction. (3) Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section. (4) The right of a person to bring proceedings for damages does not affect any other right or remedy available to the person arising from the detrimental action. 20. Application for injunction or order A person who believes that detrimental action has been taken or may be taken against him or her in reprisal for a protected disclosure may apply to the Supreme Court for— s. 19 -- 19 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 15 (a) an order requiring the person who has taken the detrimental action to remedy that action; or (b) an injunction. 21. Injunction or order (1) If, on receipt of an application under section 20, the Supreme Court is satisfied that a person has taken or intends to take detrimental action against a person in reprisal for a protected disclosure, the Court may— (a) order the person who took the detrimental action to remedy that action; or (b) grant an injunction in any terms the Court considers appropriate. (2) The Supreme Court, pending the final determination of an application under section 20, may— (a) make an interim order in the terms of sub- section (1)(a); or (b) grant an interim injunction. 22. Offence to reveal confidential information (1) A person who obtains or receives information in the course of or as a result of a protected disclosure or the investigation of a disclosed matter under this Act must not disclose that information except for the purposes of— (a) the exercise of the functions under this Act of the President of the Legislative Council, the Speaker of the Legislative Assembly, the Ombudsman, the Deputy Ombudsman, the Chief Commissioner of Police or a public body; or s. 21 -- 20 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 16 (b) any report or recommendation to be made under this Act; or (c) any report referred to in Part 9; or (d) any proceedings in relation to an offence against section 60 or section 106 or this section or section 19 of the Evidence Act 1958; or (e) any criminal or disciplinary proceedings taken against a member of the police force as a result of an investigation of a disclosed matter by the Chief Commissioner of Police under Part 7. Penalty: 60 penalty units or 6 months imprisonment or both. (2) The Ombudsman or a public body must not in a report or recommendation under this Act or a report referred to in Part 9 disclose particulars likely to lead to the identification of a person who made a protected disclosure. (3) The Ombudsman or a public body must not in a report referred to in Part 9 disclose particulars likely to lead to the identification of a person against whom a protected disclosure is made. (4) Nothing in this section affects the operation of section 90. 23. Certain further disclosures and further information related to disclosures are not protected disclosures (1) If the Ombudsman makes a determination under Part 4 that a disclosure is not a public interest disclosure, this Part does not apply to— (a) any further disclosure to the Ombudsman or the public body of the subject-matter of that disclosure; or s. 23 -- 21 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 17 (b) the provision to the Ombudsman or the public body of any further information in relation to the subject-matter of the disclosure. (2) If— (a) the Deputy Ombudsman, the Chief Commissioner of Police or a public body concludes under Part 4 that a disclosure is not a public interest disclosure; and (b) the person who made the disclosure does not, within 28 days of being notified of the conclusion, request the Deputy Ombudsman, the Chief Commissioner of Police or a public body (as the case requires) to refer the disclosure to the Ombudsman for determination— then, from the end of that period, this Part does not apply to any further disclosure to the Ombudsman, the Deputy Ombudsman, the Chief Commissioner of Police or a public body of the subject-matter of that disclosure or the provision to the Ombudsman, the Deputy Ombudsman, the Chief Commissioner of Police or a public body of any further information in relation to the subject- matter of the disclosure. (3) If the Ombudsman makes a determination under Part 8 that a disclosure is not a public interest disclosure, this Part does not apply to— (a) any further disclosure to the Ombudsman, the President of the Legislative Council or the Speaker of the Legislative Assembly of the subject-matter of that disclosure; or s. 23 -- 22 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 18 (b) the provision to the Ombudsman, the President of the Legislative Council or the Speaker of the Legislative Assembly of any further information in relation to the subject- matter of the disclosure. _______________ s. 23 -- 23 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 19 PART 4—DETERMINATION OF PUBLIC INTEREST DISCLOSURES Division 1—Determination by Ombudsman of public interest disclosures 24. Determination of disclosure as public interest disclosure (1) If a person makes a disclosure to the Ombudsman in accordance with Part 2, the Ombudsman must, within a reasonable time after receiving the disclosure, determine whether the disclosure is a public interest disclosure. (2) In making a determination under sub-section (1), the Ombudsman must be satisfied that the disclosure shows or tends to show that a public officer or public body— (a) has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or (b) has taken, is taking or proposes to take detrimental action in contravention of section 18. 25. Notice of determination (1) The Ombudsman must, within a reasonable time, notify the person who made the disclosure of the determination under section 24 in respect of the disclosure. (2) This section does not apply in respect of a person who made an anonymous disclosure. s. 24 -- 24 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 20 26. Certain complaints under the Police Regulation Act 1958 to be investigated as public interest disclosures If— (a) the Ombudsman determines that a disclosure in relation to a member of the police force is a public interest disclosure; and (b) the disclosure could constitute a complaint under the Police Regulation Act 1958— then, despite anything to the contrary in Part IVA of the Police Regulation Act 1958, the subject- matter of the disclosure must be investigated under this Act instead of under Part IVA of the Police Regulation Act 1958. 27. Notice of alternative procedure (1) If the Ombudsman— (a) determines that a disclosure is not a public interest disclosure; and (b) considers that the disclosure could constitute a complaint under the Ombudsman Act 1973 or the Police Regulation Act 1958— the Ombudsman must notify the person who made the disclosure of the person's right to have the disclosure dealt with as a complaint under the Ombudsman Act 1973 or the Police Regulation Act 1958 (as the case requires). (2) A person who is given notice under sub-section (1) may by notice in writing to the Ombudsman request that the disclosure be dealt with as a complaint under the Ombudsman Act 1973 or the Police Regulation Act 1958 (as the case requires). (3) A person must make a request under sub-section (2) within 28 days of being given notice under sub-section (1). s. 26 -- 25 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 21 (4) If under this section a person requests that a disclosure be dealt with as a complaint under the Ombudsman Act 1973, the disclosure is deemed to be a complaint made to the Ombudsman under that Act. (5) If under this section a person requests that a disclosure be dealt with as a complaint under the Police Regulation Act 1958, the disclosure is deemed to be a complaint made to the Deputy Ombudsman under that Act. Division 2—Disclosures made to public bodies 28. Consideration whether a disclosure is a public interest disclosure (1) If a person makes a disclosure to a public body in accordance with Part 2, the public body must, within 45 days after receiving the disclosure, consider and reach a conclusion as to whether the disclosure is a public interest disclosure. (2) In reaching a conclusion under sub-section (1), the public body must consider whether the disclosure shows or tends to show that the public officer to whom the disclosure relates— (a) has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a public officer; or (b) has taken, is taking or proposes to take detrimental action in contravention of section 18. 29. What happens if the public body concludes that a disclosure is a public interest disclosure? s. 28 s. 29 -- 26 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 22 (1) If, under section 28, a public body concludes that a disclosure is a public interest disclosure, the public body must within 14 days— (a) notify the person who made the disclosure of that conclusion; and (b) refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure. (2) A public body is not required to notify under this section a person who made an anonymous disclosure. 30. What happens if the public body concludes that a disclosure is not a public interest disclosure? (1) If, under section 28, a public body concludes that a disclosure is not a public interest disclosure, the public body must, within 14 days— (a) notify the person who made the disclosure of that conclusion; and (b) advise the person that— (i) he or she may request the public body to refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure; and (ii) the person's request must be made within 28 days of the notification. (2) This section does not apply in respect of a person who made an anonymous disclosure. 31. Request for referral to Ombudsman s. 31 -- 27 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 23 If a person who is given notice under section 30 requests within the required time that a disclosure be referred to the Ombudsman, the public body must immediately refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure. 32. Determination by Ombudsman (1) Division 1 applies to a disclosure referred to the Ombudsman under this Division as if the disclosure had been made to the Ombudsman. (2) The Ombudsman must, within a reasonable time, notify the public body that referred the disclosure under this Division of the determination as to whether a disclosure is a public interest disclosure. Division 3—Disclosures in relation to members of the police force 33. Consideration whether a disclosure is a public interest disclosure (1) If a person makes a disclosure that relates to a member of the police force to the Deputy Ombudsman in accordance with Part 2, the Deputy Ombudsman must, within 45 days after receiving the disclosure, consider and reach a conclusion as to whether the disclosure is a public interest disclosure. (2) If a person makes a disclosure that relates to a member of the police force to the Chief Commissioner of Police in accordance with Part 2, the Chief Commissioner of Police must, within 45 days after receiving the disclosure, consider and reach a conclusion as to whether the disclosure is a public interest disclosure. -- 28 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 24 (3) In reaching a conclusion under this section, the Deputy Ombudsman or the Chief Commissioner of Police (as the case requires) must consider whether the disclosure shows or tends to show that the member of the police force to whom the disclosure relates— (a) has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a member of the police force; or (b) has taken, is taking or proposes to take detrimental action in contravention of section 18. 34. What happens if it is concluded that a disclosure is a public interest disclosure? (1) If, under section 33, the Deputy Ombudsman or Chief Commissioner of Police concludes that a disclosure is a public interest disclosure, he or she must within 14 days— (a) notify the person who made the disclosure of that conclusion; and (b) refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure. (2) The Deputy Ombudsman or Chief Commissioner of Police is not required to notify under this section a person who made an anonymous disclosure. 35. What happens if it is concluded that a disclosure is not a public interest disclosure? (1) If, under section 33, the Deputy Ombudsman or Chief Commissioner of Police concludes that a disclosure is not a public interest disclosure, he or she must, within 14 days— s. 34 -- 29 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 25 (a) notify the person who made the disclosure of that conclusion; and (b) advise the person that— (i) he or she may request that the disclosure be referred to the Ombudsman for a determination as to whether it is a public interest disclosure; and (ii) the person's request must be made within 28 days of the notification. (2) This section does not apply in respect of a person who made an anonymous disclosure. 36. Request for referral to Ombudsman If a person who is given notice under section 35 requests within the required time that a disclosure be referred to the Ombudsman, the Deputy Ombudsman or Chief Commissioner of Police (as the case requires) must immediately refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure. 37. Determination by Ombudsman (1) Division 1 applies to a disclosure referred to the Ombudsman under this Division as if the disclosure had been made to the Ombudsman. (2) The Ombudsman must, within a reasonable time, notify the Deputy Ombudsman or Chief Commissioner of Police (as the case requires) of the determination as to whether a disclosure is a public interest disclosure. _______________ s. 36 -- 30 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 26 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? The Ombudsman's functions under this Act are— (a) to determine whether disclosures are public interest disclosures; (b) to investigate matters disclosed in public interest disclosures; (c) to prepare and publish guidelines for the procedures to be followed by public bodies in relation to— (i) disclosures under Part 2; and (ii) investigations under Part 6; and (d) to monitor investigations by public bodies under Part 6; and (e) to monitor investigations by the Chief Commissioner of Police under Part 7; and (f) to review the procedures and the implementation of procedures of public bodies in relation to— (i) disclosures under Part 2; and (ii) investigations under Part 6; (g) any other function conferred on the Ombudsman by or under this Act. s. 38 -- 31 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 27 Division 2—Requirement to investigate 39. Duty to investigate Subject to this Division, the Ombudsman must investigate every disclosure the Ombudsman has determined is a public interest disclosure. 40. Which matters do not have to be investigated? (1) The Ombudsman may decide not to investigate a disclosed matter— (a) if in his or her opinion the disclosure— (i) is trivial; or (ii) is frivolous or vexatious; or (b) if the person making the disclosure had had knowledge for more than 12 months of the disclosed matter and failed to give a satisfactory explanation for the delay in making the disclosure. (2) The Ombudsman must— (a) within a reasonable time, notify the person making the disclosure of his or her decision under sub-section (1) not to investigate the disclosed matter; and (b) give reasons for that decision. 41. Referral of matters for investigation otherwise than under this Act (1) The Ombudsman may refer a disclosed matter to the Chief Commissioner of Police, the Auditor- General, a prescribed public body or the holder of a prescribed office to investigate if the Ombudsman considers it appropriate to do so. (2) This section does not apply to a disclosed matter relating to a member of the police force. s. 39 -- 32 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 28 42. Referral of public interest disclosures to relevant public body for investigation (1) Subject to sub-section (2), the Ombudsman may refer a disclosed matter to a public body to investigate if— (a) the matter relates to a member, officer or employee of the public body; and (b) the Ombudsman considers it appropriate to do so. (2) Part 6 applies to the investigation of a matter referred to a public body under this section. (3) Nothing in this section limits the operation of section 41. 43. Referral of certain public interest disclosures to Deputy Ombudsman for investigation (1) The Ombudsman may, if the Ombudsman considers it appropriate to do so, refer a disclosed matter to the Deputy Ombudsman to investigate if the matter relates to— (a) the Chief Commissioner of Police; or (b) any other member of the police force. (2) The Deputy Ombudsman must investigate a disclosed matter referred by the Ombudsman under this section. (3) Division 3 applies to an investigation referred to the Deputy Ombudsman under this section as if, in that Division, a reference to the Ombudsman were a reference to the Deputy Ombudsman. s. 42 -- 33 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 29 44. Referral of certain public interest disclosures to Chief Commissioner of Police for investigation (1) The Ombudsman may refer a disclosed matter to the Chief Commissioner of Police to investigate if— (a) the matter relates to a member of the police force other than the Chief Commissioner of Police or a Deputy or Assistant Commissioner of Police; and (b) the Ombudsman considers it appropriate to do so. (2) Part 7 applies to the investigation of a matter referred to the Chief Commissioner of Police under this section. 45. What information may the Ombudsman provide? The Ombudsman may give to a person or body to whom or which a matter is referred under this Division for investigation any information that the Ombudsman has in respect of the matter. 46. Notice of referral If the Ombudsman refers a disclosed matter to a person or body under this Division to investigate, the Ombudsman must give notice of that referral to the person who made the disclosure unless it was an anonymous disclosure. Division 3—Investigation by Ombudsman 47. Procedures for investigation Subject to this Part, the Ombudsman may regulate his or her procedures on an investigation of a disclosed matter in any manner that he or she thinks fit. s. 44 -- 34 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 30 48. Secondment of members of the police force for certain investigations (1) The Ombudsman may request the Chief Commissioner of Police to make available members of the police force to assist the Ombudsman in the investigation of a disclosed matter. (2) On a request under sub-section (1), the Chief Commissioner of Police, must make available such members of the police force as the Chief Commissioner of Police thinks necessary to assist the Ombudsman in the investigation of a disclosed matter. (3) Every member of the police force made available to the Ombudsman under this section remains under the direction and control of the Chief Commissioner of Police but must in assisting the Ombudsman have regard to the wishes of the Ombudsman concerning the conduct of an investigation. 49. Secondment of others for certain investigations (1) The Ombudsman may request a prescribed public body to make available staff to assist the Ombudsman in the investigation of a disclosed matter. (2) On a request under sub-section (1), the prescribed public body must make available such staff as the prescribed public body thinks necessary to assist the Ombudsman in the investigation of a disclosed matter. (3) Every person made available to the Ombudsman under this section remains under the direction and control of the prescribed public body but must in assisting the Ombudsman have regard to the s. 48 -- 35 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 31 wishes of the Ombudsman concerning the conduct of an investigation. 50. Notice of the investigation (1) Before conducting an investigation of a disclosed matter, the Ombudsman must in writing inform the relevant person or body listed in sub-section (2) of his or her intention to do so. (2) For the purposes of sub-section (1) information must be given to— (a) if the disclosed matter relates to a public body or a public officer, either the relevant Minister or the chief executive officer of the public body; or (b) if the disclosed matter relates to a mayor of a municipal council, either the relevant Minister or the chief executive officer of the relevant municipal council; or (c) if the disclosed matter relates to a councillor (other than the mayor) of a municipal council, the mayor and the chief executive officer of the relevant municipal council; or (d) if the disclosed matter relates to the chief executive officer of a municipal council— (i) the relevant Minister; or (ii) the mayor of that council and a senior officer (within the meaning of the Local Government Act 1989) of that council nominated by that council; or (e) if the disclosed matter relates to any other officer or employee of a municipal council, the mayor and the chief executive officer of the relevant municipal council; or s. 50 -- 36 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 32 (f) if the disclosed matter relates to the Chief Commissioner of Police, the Police Minister; or (g) if the disclosed matter relates to any other member of the police force, the Chief Commissioner of Police. 51. Investigation to be private The investigation by the Ombudsman of a disclosed matter is to be conducted in private. 52. A hearing is not required The Ombudsman is not required to hold a hearing for the purposes of an investigation of a disclosed matter. 53. Legal representation The Ombudsman may determine whether or not any person may be represented by a legal practitioner or otherwise at a hearing in an investigation by the Ombudsman of a disclosed matter. 54. How is evidence to be taken? (1) Subject to this Part, the Ombudsman may obtain information from any person and in any manner he or she thinks fit for the purposes of an investigation of a disclosed matter. (2) The provisions of sections 17, 18, 19, 20 and 20A of the Evidence Act 1958 apply to and in relation to any investigation of a disclosed matter by the Ombudsman as if the Ombudsman were the sole Commissioner issued with a commission by the Governor in Council. (3) For the purpose of an investigation of a disclosed matter, the Ombudsman may take a statutory declaration from any witness or other person. s. 51 -- 37 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 33 55. Power to require answers etc. of members of the police force in certain investigations (1) Without limiting section 54, in an investigation of a disclosed matter relating to a member of the police force, the Ombudsman may direct a member of the force to give any relevant information, produce any relevant document or answer any relevant question. (2) A member of the police force who does not comply with a direction under sub-section (1) commits a breach of discipline under section 69 of the Police Regulation Act 1958. (3) Except in proceedings for perjury, for a breach of discipline under section 69 of the Police Regulation Act 1958 or for failure to comply with a direction, any information or answer that is given, or document that is produced, pursuant to a direction under sub-section (1) is not admissible in evidence before any court or person acting judicially. 56. Can privileged or confidential information be disclosed to the Ombudsman? (1) An obligation to maintain confidentiality or any other restriction on the disclosure of information obtained by or furnished to persons in the service of the Crown or any public body that is imposed by any Act or oath or rule of law or practice or under an agreement does not apply to the disclosure of information for the purposes of an investigation by the Ombudsman of a disclosed matter. (2) The Crown is not, in relation to an investigation by the Ombudsman of a disclosed matter, entitled to any privilege in respect of the production of documents or the giving of evidence that is allowed by law in legal proceedings. s. 55 -- 38 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 34 (3) Subject to sub-sections (1) and (2) and section 55, a person cannot be compelled for the purposes of an investigation by the Ombudsman of a disclosed matter to produce any document or give any evidence that the person could not be compelled to produce or give in proceedings before a court. 57. Deliberations of Ministers and Parliamentary committees not to be disclosed (1) A person is not required or authorised by this Part to furnish any information or answer any question that relates to— (a) any deliberation or decision of the Cabinet; or (b) the deliberations of any committee consisting of members of Parliament if the committee is formed for the purpose of advising Ministers in respect of their deliberations; or (c) any deliberations in private of— (i) a Parliamentary Committee or Specific Purpose Committee within the meaning of the Parliamentary Committees Act 1968; or (ii) a committee consisting of members of Parliament established by resolution of either the Legislative Council or the Legislative Assembly, or the resolution of both the Legislative Council and the Legislative Assembly. (2) A person is not required or authorised by this Part to provide or inspect a document that is an exempt document under section 28 of the Freedom of Information Act 1982. (3) A certificate issued by the Secretary to the Department of Premier and Cabinet certifying that s. 57 -- 39 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 35 any information or question relates to a deliberation or decision of the Cabinet or a deliberation of a committee referred to sub-section (1) is conclusive of the fact so certified. (4) In this section "Cabinet" includes a committee or sub-committee of Cabinet. 58. Power to enter premises For the purpose of conducting an investigation of a disclosed matter, the Ombudsman or any officer of the Ombudsman authorised by him or her for that purpose may at any reasonable time— (a) enter any premises occupied or used by a public officer or public body in their capacity as such; and (b) inspect those premises or anything for the time being in them or on them. 59. Consultation and comment If, in the course of an investigation of a disclosed matter, it appears to the Ombudsman that there may be grounds for making a report adverse to a public body, a public officer, a councillor or a member of the police force, the Ombudsman must, before making the report, give an opportunity to comment on the matter to— (a) in the case of a public body or public officer, the relevant Minister or the chief executive officer; or (b) in the case of a councillor, the relevant Minister or the mayor of the relevant municipal council; or (c) in the case of the Chief Commissioner of Police, the Police Minister; or (d) in the case of any other member of the police force, the Chief Commissioner of Police. s. 58 -- 40 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 36 60. Obstruction (1) A person must not— (a) without lawful excuse, wilfully obstruct, hinder or resist the Ombudsman in the exercise of his or her powers under this Part; or (b) without lawful excuse, refuse to or wilfully fail to comply with any lawful requirement of the Ombudsman under this Part; or (c) make a statement the person knows to be false or misleading in a material respect to the Ombudsman in the course of an investigation under this Part; or (d) knowingly mislead or attempt to mislead the Ombudsman in the course of an investigation under this Part. Penalty: 240 penalty units or 2 years imprisonment or both. (2) In sub-section (1)(b), "lawful requirement", in relation to a member of the police force, means a requirement of a kind that is agreed between the Ombudsman and the Chief Commissioner of Police to be appropriate for the Ombudsman to make. 61. Opportunity to be heard before adverse report The Ombudsman must not, in any report under this Part or Part 8, make any comment adverse to any person unless that person has been given an opportunity of being heard in the matter and their defence is fairly set out in the report. Division 4—Action on completion of investigation s. 60 -- 41 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 37 62. Report on investigation by Deputy Ombudsman to Ombudsman The Deputy Ombudsman must report to the Ombudsman on an investigation of a disclosed matter in the manner that the Ombudsman determines. 63. Report on investigation (1) On the completion of an investigation of a disclosed matter the Ombudsman— (a) must report the findings of the investigation to the relevant person; and (b) may make recommendations as to the action to be taken as a result of the investigation. (2) For the purposes of sub-section (1), the relevant person is— (a) in the case of a public body or public officer, either the relevant Minister or the chief executive officer of the public body; (b) in the case of a councillor, either the relevant Minister or the mayor of the relevant municipal council; (c) in the case of the Chief Commissioner of Police, the Police Minister; (d) in the case of any other member of the police force, the Chief Commissioner of Police. (3) Recommendations under sub-section (1) may include— (a) a recommendation that the disclosed matter be referred to an appropriate authority for further consideration; (b) a recommendation that action be taken to remedy any harm or loss arising from the conduct; s. 62 -- 42 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 38 (c) a recommendation that action be taken to prevent the conduct from continuing or occurring in the future. (4) This section applies to an investigation of a disclosed matter by the Ombudsman or the Deputy Ombudsman. 64. Notice of implementation of recommendation If the Ombudsman makes a recommendation in a report to a person under section 63, he or she may request that person to notify him or her within a specified time— (a) of the steps that have been or are proposed to be taken to give effect to the recommendation; or (b) if no steps have been or are proposed to be taken, the reasons for this. 65. Implementation of recommendations in relation to members of the police force (1) If, in a report under section 63 in relation to a member of the police force (other than the Chief Commissioner of Police), there is a recommendation as to the action to be taken as a result of the investigation and the Chief Commissioner of Police disagrees with the recommendation, the Ombudsman and the Chief Commissioner of Police must refer the matter to the Police Minister. (2) The Police Minister may give directions as to the taking of any action recommended in that report. (3) The Police Minister may refer to the Director of Public Prosecutions the question of whether or not criminal proceedings should be taken against a member of the police force. s. 64 -- 43 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 39 66. Report to Parliament If it appears to the Ombudsman that insufficient steps have been taken within a reasonable time after making a report and recommendations under section 63 in relation to a public body, public officer or councillor, the Ombudsman, after considering any comments of the relevant Minister, the chief executive officer of the public body or the mayor of the relevant council (as the case requires), may, as he or she thinks fit, cause to be laid before each House of Parliament a report on any matter to which the report, recommendations and comments (if any) relate. 67. Person who made disclosure to be informed (1) If the Ombudsman investigates a disclosed matter or takes any other action under this Part in respect of a disclosed matter, the Ombudsman must, within a reasonable time after the completion of the investigation, inform the person who made the disclosure of the result of the investigation or other action. (2) The information may be provided in the manner that the Ombudsman thinks fit. (3) If it appears to the Ombudsman that insufficient steps have been taken within a reasonable time after making a report and recommendations under section 63, the Ombudsman must inform the person who made the disclosure of the recommendations, making any comments on them that he or she thinks appropriate. (4) The Ombudsman may disclose to the person who made the disclosure any additional information that the Ombudsman thinks appropriate. (5) This section does not apply in respect of a person who made an anonymous disclosure. s. 66 s. 67 -- 44 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 40 _______________ -- 45 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 41 PART 6—INVESTIGATION OF PUBLIC INTEREST DISCLOSURES BY PUBLIC BODIES Division 1—Establishment of procedures 68. Public body to establish procedures (1) A public body must establish procedures— (a) to facilitate the making of disclosures under Part 2; and (b) for investigations of disclosed matters; and (c) for the protection of persons from reprisals by the public body or any member, officer or employee of the public body because of disclosures. (2) The procedures must be established— (a) in the case of a public body existing immediately before the commencement of this section, as soon as practicable after that commencement; and (b) in the case of a public body established on or after that commencement, as soon as practicable after that body is established. (3) The procedures must comply with this Act and the guidelines for the time being in force under section 69. 69. Ombudsman's guidelines (1) The Ombudsman must prepare and publish guidelines for procedures— (a) to facilitate the making of disclosures to public bodies under Part 2; and (b) for investigations under this Part of disclosed matters; and s. 68 -- 46 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 42 (c) for the protection of persons from reprisals by public bodies or members, officers or employees of public bodies because of disclosures. (2) The Ombudsman may from time to time amend the guidelines prepared under sub-section (1). 70. Availability of procedures (1) A public body must make a copy of its procedures under this Division available to each member, officer and employee of the public body. (2) A public body must keep a copy of its procedures under this Division available at its offices for inspection by the public during normal office hours free of charge. 71. Review of procedures (1) The Ombudsman may review the procedures of a public body at any time to ensure that the procedures comply with this Act and the Ombudsman's guidelines. (2) The Ombudsman may review the implementation of the procedures of a public body to ensure that their implementation complies with this Act and the Ombudsman's guidelines. (3) The Ombudsman may make any recommendation to a public body that the Ombudsman thinks fit arising from a review under this section. (4) If it appears to the Ombudsman that insufficient steps have been taken within a reasonable time after making a recommendation under sub-section (3), the Ombudsman may, after considering any comments of the public body, send a copy of the recommendation to the relevant Minister. s. 70 -- 47 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 43 Division 2—Requirement to investigate 72. Duty to investigate Subject to this Division, a public body must investigate every disclosed matter that the Ombudsman has referred to the body to be investigated under this Part. 73. Referral to Ombudsman by public body A public body must refer the investigation of a disclosed matter to the Ombudsman if the public body considers its own investigation is being obstructed. 74. Request to Ombudsman by person making disclosure If a disclosed matter has been referred to a public body to be investigated under this Part, the person who made the disclosure may request the Ombudsman to investigate the disclosed matter if— (a) the public body fails to investigate the matter; or (b) the person is dissatisfied with the manner in which the public body is carrying out an investigation of the matter; or (c) the person is dissatisfied with the steps taken by the public body after the investigation of the matter; or (d) the public body fails to take steps in accordance with section 81. 75. Ombudsman may take over an investigation If the Ombudsman is not satisfied with an investigation of a disclosed matter by a public body under this Part, the Ombudsman may take over the investigation. s. 72 -- 48 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 44 76. Provision of information to Ombudsman If the Ombudsman commences or takes over an investigation of a disclosed matter that a public body was to investigate or has commenced investigating, the public body must give to the Ombudsman in writing any information that it has and any findings, preliminary or otherwise, that it has made in respect of the matter. 77. What can the Ombudsman do? (1) If an investigation by a public body is referred to the Ombudsman under section 73 or taken over by the Ombudsman under section 75, or a request is made under section 74, the Ombudsman may— (a) commence a new investigation; or (b) complete the investigation; or (c) refer the investigation back to the public body to investigate with recommendations about the future conduct of the investigation; or (d) refer the matter to another public body to investigate. (2) If a request is made under section 74 or an investigation is taken over by the Ombudsman under section 75, the Ombudsman may also inquire into the conduct of the investigation by the public body. (3) Divisions 3 and 4 of Part 5 apply to an investigation commenced, referred to or taken over by the Ombudsman under this Division. 78. Notice of referral (1) If a public body refers an investigation to the Ombudsman under this Part, the public body must give notice of that referral to the person who made s. 76 -- 49 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 45 the disclosure unless it was an anonymous disclosure. (2) If the Ombudsman takes over an investigation of a disclosed matter under this Part, the Ombudsman must give notice of that fact to the person who made the disclosure unless it was an anonymous disclosure. Division 3—Investigation by public body 79. Investigation to be in accordance with procedures An investigation under this Part by a public body of a disclosed matter must be in accordance with the procedures established for the public body. 80. Information about progress of investigation (1) A public body conducting an investigation of a disclosed matter must, at the request of the Ombudsman or person who made the disclosure, give the Ombudsman or the person (as the case requires) reasonable information about the investigation. (2) A public body must give the information within 28 days of receiving the request. (3) A public body is not required to give the information to the person who made the disclosure if— (a) the information requested has already been given to that person; or (b) the giving of the information requested would endanger the safety of any person or prejudice the conduct of the investigation. s. 79 -- 50 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 46 Division 4—Action on investigation 81. What action must the public body take? (1) If, on completing an investigation of a disclosed matter, the public body finds that the conduct that was the subject of the investigation has occurred, the public body— (a) must report the findings of the investigation to— (i) in the case of an investigation of a disclosed matter relating to an officer or employee of a municipal council, that council; or (ii) in any other case, the relevant Minister; and (b) must take all reasonable steps to prevent the conduct from continuing or occurring in the future; and (c) may take action to remedy any harm or loss arising from the conduct. (2) The steps to be taken may include— (a) the bringing of disciplinary proceedings against the person responsible for the conduct that was the subject of the investigation; and (b) the referral of the matter to an appropriate authority for further consideration. 82. Report on investigation (1) On completing an investigation of a disclosed matter, a public body must notify in writing— (a) the Ombudsman of the findings of the investigation and the steps (if any) taken under section 81; and s. 81 -- 51 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 47 (b) the relevant person or body of the steps (if any) taken under section 81. (2) For the purposes of sub-section (1), a relevant person or body is— (a) in the case of an investigation of a disclosed matter relating to an officer or employee of a municipal council, that council; (b) in any other case, the relevant Minister. 83. Report to person making disclosure (1) Within a reasonable time after completing an investigation of a disclosed matter, the public body must inform the person who made the disclosure of the findings of the investigation and the steps (if any) taken under section 81. (2) This section does not apply in respect of a person who made an anonymous disclosure. _______________ s. 83 -- 52 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 48 PART 7—INVESTIGATION OF PUBLIC INTEREST DISCLOSURES REFERRED TO CHIEF COMMISSIONER OF POLICE Division 1—Requirement to investigate 84. Duty to investigate The Chief Commissioner of Police must investigate every disclosed matter relating to a member of the police force that the Ombudsman has referred to the Chief Commissioner of Police to be investigated under this Part. 85. Request to Ombudsman by person making disclosure If a disclosed matter has been referred to the Chief Commissioner of Police to be investigated under this Part, the person who made the disclosure may request the Ombudsman to investigate the disclosed matter if— (a) the Chief Commissioner of Police fails to investigate the matter; or (b) the person is dissatisfied with the manner in which the Chief Commissioner of Police is carrying out an investigation of the matter; or (c) the person is dissatisfied with the steps taken by the Chief Commissioner of Police after the investigation of the matter; or (d) the Chief Commissioner of Police fails to take steps in accordance with section 92. 86. Ombudsman may take over an investigation If the Ombudsman is not satisfied with an investigation of a disclosed matter by the Chief Commissioner of Police under this Part, the Ombudsman may take over the investigation. s. 84 -- 53 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 49 87. Provision of information to Ombudsman If the Ombudsman commences or takes over an investigation of a disclosed matter that the Chief Commissioner of Police was to investigate or has commenced investigating, the Chief Commissioner of Police must give to the Ombudsman in writing any information that he or she has and any findings, preliminary or otherwise, that he or she has made in respect of the matter. 88. What can the Ombudsman do? (1) If an investigation by the Chief Commissioner of Police is taken over by the Ombudsman under section 86, or a request is made under section 85, the Ombudsman may— (a) commence a new investigation; or (b) complete the investigation; or (c) refer the investigation back to the Chief Commissioner of Police to investigate with recommendations about the future conduct of the investigation; or (d) refer the matter to another public body to investigate. (2) If a request is made under section 85 or an investigation is taken over by the Ombudsman under section 86, the Ombudsman may also inquire into the conduct of the investigation by the Chief Commissioner of Police. (3) Divisions 3 and 4 of Part 5 apply to an investigation commenced, referred to or taken over by the Ombudsman under this Division. s. 87 -- 54 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 50 89. Notice of referral If the Ombudsman takes over an investigation of a disclosed matter under this Part, the Ombudsman must give notice of that fact to the person who made the disclosure unless it was an anonymous disclosure. Division 2—Investigation by Chief Commissioner of Police 90. Power to require answers etc. of members of the police force in certain investigations (1) In an investigation of a disclosed matter relating to a member of the police force under this Part, the Chief Commissioner of Police may direct a member of the police force to give any relevant information, produce any relevant document or answer any relevant question. (2) A member of the police force who does not comply with a direction under sub-section (1) commits a breach of discipline under section 69 of the Police Regulation Act 1958. (3) Except in proceedings for perjury, for a breach of discipline under section 69 of the Police Regulation Act 1958 or for failure to comply with a direction, any information or answer that is given, or document that is produced, pursuant to a direction under sub-section (1) is not admissible in evidence before any court or person acting judicially. 91. Progress reports to Ombudsman on investigations The Chief Commissioner of Police must as often as requested by the Ombudsman report in writing to the Ombudsman on the progress of an investigation under this Part. s. 89 -- 55 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 51 Division 3—Action on investigation 92. What action must the Chief Commissioner of Police take? (1) If, on completing an investigation of a disclosed matter under this Part, the Chief Commissioner of Police finds that the conduct that was the subject of the investigation has occurred, the Chief Commissioner of Police— (a) must take all reasonable steps to prevent the conduct from continuing or occurring in the future; and (b) may take action to remedy any harm or loss arising from the conduct. (2) The steps to be taken may include the bringing of disciplinary proceedings against the person responsible for the conduct that was the subject of the investigation. 93. Report to Ombudsman On completing an investigation of a disclosed matter under this Part, the Chief Commissioner of Police must, in writing, notify the Ombudsman of— (a) the findings of the investigation; and (b) the steps (if any) taken or proposed to be taken under section 92. 94. Implementation of recommendations (1) If the Ombudsman disagrees with the Chief Commissioner of Police as to what steps (if any) should be taken, the Ombudsman and the Chief Commissioner of Police must refer the matter to the Police Minister. s. 92 -- 56 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 52 (2) The Police Minister may give directions as to the taking of any action as a result of the investigation. (3) The Police Minister may refer to the Director of Public Prosecutions the question of whether or not criminal proceedings should be taken against a member of the police force. 95. Report to person making disclosure (1) Within a reasonable time after completing an investigation of a disclosed matter under this Part, the Chief Commissioner of Police must inform the person who made the disclosure of the findings of the investigation and the steps (if any) taken under section 92. (2) This section does not apply in respect of a person who made an anonymous disclosure. _______________ s. 95 -- 57 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 53 PART 8—INVESTIGATION OF DISCLOSURES ABOUT MEMBERS OF PARLIAMENT 96. Referral of disclosure to Ombudsman If a person makes a disclosure to the President of the Legislative Council or the Speaker of the Legislative Assembly in accordance with Part 2, the President or the Speaker may refer the disclosure to the Ombudsman for investigation. 97. Determination of disclosure as public interest disclosure (1) If the President of the Legislative Council or the Speaker of the Legislative Assembly refers a disclosure to the Ombudsman under this Part, the Ombudsman must, within a reasonable time after receiving the disclosure, determine whether or not the disclosure is a public interest disclosure. (2) In making a determination under sub-section (1), the Ombudsman must be satisfied that the disclosure shows or tends to show that the member of Parliament to whom the disclosure relates— (a) has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a member of Parliament; or (b) has taken, is taking or proposes to take detrimental action in contravention of section 18. 98. Notice of determination The Ombudsman must, within a reasonable time, notify the President of the Legislative Council or the Speaker of the Legislative Assembly, as the case requires, of the determination under section 97 in respect of the disclosure. s. 96 -- 58 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 54 99. Investigation by Ombudsman The Ombudsman must investigate every disclosure referred to him or her by the President of the Legislative Council or the Speaker of the Legislative Assembly that the Ombudsman has determined is a public interest disclosure. 100. Investigations to be conducted in accordance with Division 3 of Part 5 Division 3 of Part 5, except sections 50 and 59, applies to an investigation commenced by the Ombudsman under this Part. 101. Report on investigation On completion of an investigation of a disclosed matter under this Part, the Ombudsman must report the findings of the investigation to the President of the Legislative Council or the Speaker of the Legislative Assembly (as the case requires). _______________ s. 99 -- 59 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 55 PART 9—ANNUAL REPORTS AND OTHER REPORTS 102. Annual report by Ombudsman The Ombudsman must include in his or her annual report under section 25 of the Ombudsman Act 1973— (a) the current guidelines published by the Ombudsman under Part 6; (b) the number and types of disclosures made to the Ombudsman during the year; (c) the number and types of determinations made by the Ombudsman during the year as to whether disclosures are public interest disclosures; (d) the number and types of disclosed matters that during the year the Ombudsman has investigated; (e) the number and types of disclosed matters that during the year the Ombudsman has referred— (i) under section 41, to the Chief Commissioner of Police, the Auditor- General, a prescribed public body or the holder of a prescribed office to investigate; (ii) to a public body to investigate under Part 6; (iii) to the Deputy Ombudsman to investigate; (iv) to the Chief Commissioner of Police to investigate under Part 7; (f) the number and types of disclosed matters— s. 102 -- 60 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 56 (i) that the Ombudsman has declined to investigate during the year; (ii) that were referred by a public body during the year to the Ombudsman to investigate; (g) the number and types of disclosures referred to the Ombudsman under this Act by the President of the Legislative Council or the Speaker of the Legislative Assembly during the year; (h) the number and types of investigations of disclosed matters taken over by the Ombudsman during the year; (i) the number of requests made under section 74 or 85 during the year to the Ombudsman to investigate disclosed matters; (j) the number and types of investigations of disclosed matters for which the Ombudsman has made a recommendation during the year; (k) the recommendations made by the Ombudsman during the year in relation to each type of disclosed matter; (l) the recommendations made by the Ombudsman during the year in relation to the procedures established by a public body under Part 6; (m) the action taken during the year on each recommendation of the Ombudsman under this Act. 103. Other reports by Ombudsman s. 102 s. 103 -- 61 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 57 The Ombudsman may at any time cause a report on any matter arising in relation to a disclosed matter to be laid before each House of Parliament. 104. Annual reports by public body If a public body is required by an Act to prepare a report of operations or an annual report on its activities during a year, the report must include— (a) the current procedures established by the public body under Part 6; (b) the number and types of disclosures made to the public body during the year; (c) the number of disclosures referred during the year by the public body to the Ombudsman for determination as to whether they are public interest disclosures; (d) the number and types of disclosed matters referred to the public body during the year by the Ombudsman; (e) the number and types of disclosed matters referred during the year by the public body to the Ombudsman to investigate; (f) the number and types of investigations of disclosed matters taken over by the Ombudsman from the public body during the year; (g) the number of requests made under section 74 during the year to the Ombudsman to investigate disclosed matters; (h) the number and types of disclosed matters that the public body has declined to investigate during the year; (i) the number and types of disclosed matters that were substantiated on investigation and -- 62 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 58 the action taken on completion of the investigation; (j) any recommendations of the Ombudsman under this Act that relate to the public body. 105. Reports by councils in relation to disclosures relating to officers and employees of councils A municipal council must, in relation to disclosures relating to officers or employees of the council, include in each annual report it prepares under the Local Government Act 1989 the information required by paragraphs (a) to (j) of section 104, and for that purpose, a reference in those paragraphs to a public body is to be taken to be a reference to that council. _______________ s. 105 -- 63 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 59 PART 10—GENERAL 106. Offence to make false disclosure A person must not knowingly provide false information under this Act, intending that it be acted on as a disclosed matter, to— (a) the President of the Legislative Council; or (b) the Speaker of the Legislative Assembly; or (c) the Ombudsman; or (d) the Deputy Ombudsman; or (e) the Chief Commissioner of Police; or (f) a public body. Penalty: 240 penalty units or 2 years imprisonment or both. 107. Protection of Ombudsman and officers of Ombudsman (1) The Ombudsman, the Deputy Ombudsman and any officer of the Ombudsman are not liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he or she would have been liable apart from this section in respect of any act done or purporting to be done under this Act, unless the act was done in bad faith. (2) No civil or criminal proceedings may be brought against the Ombudsman, the Deputy Ombudsman or any officer of the Ombudsman in respect of any act of a kind referred to in sub-section (1) without the leave of the Supreme Court. s. 106 -- 64 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 60 (3) The Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith. (4) Despite sub-sections (1), (2) and (3)— (a) no order may be made— (i) restraining the Ombudsman or the Deputy Ombudsman from carrying out, or compelling him or her to carry out, any investigation; or (ii) restraining the Ombudsman or the Deputy Ombudsman from reporting on, or compelling him or her to report on, the findings of any investigation; or (iii) restraining the Ombudsman from making a recommendation, or compelling him or her to make a recommendation, in respect of a public officer or public body in a report of any investigation; and (b) no proceedings may be brought against the Ombudsman under which the issue of such an order is sought. (5) The Ombudsman, the Deputy Ombudsman and any officer of the Ombudsman may not be called to give evidence in any court or in any legal proceedings or before the Police Appeals Board in respect of any matter coming to his or her knowledge in the exercise of his or her functions under this Act. 108. Evidence not admissible (1) Information is not admissible as evidence (if given by a party) in legal proceedings if it was obtained or received by the party— s. 108 -- 65 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 61 (a) from the Ombudsman, the Deputy Ombudsman, the Chief Commissioner of Police or a public body in the course of or as a result of— (i) a disclosure under Part 2; or (ii) the investigation of a disclosed matter under this Act; or (b) from any person who obtained it in that way. (2) Sub-section (1) does not apply to— (a) proceedings in relation to an offence against section 18, 60 or 106 of this Act or section 19 of the Evidence Act 1958; (b) proceedings under section 19 or 20 of this Act; or (c) a criminal or disciplinary proceeding taken against a member of the police force as a result of an investigation of a disclosed matter by the Chief Commissioner of Police under Part 7. (3) Nothing in this section affects the operation of section 90. 109. Exemption from Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a public body that is an agency under that Act, or is deemed under an enactment to be an agency under that Act, or the Ombudsman, the Deputy Ombudsman, any officer of the Ombudsman or the Chief Commissioner of Police, to the extent to which the document discloses information— (a) in relation to a disclosure made under Part 2; or s. 109 -- 66 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 62 (b) likely to lead to the identification of a person who made a disclosure under Part 2; or (c) likely to lead to the identification of a person against whom a disclosure under Part 2 is made. (2) In this section— "agency" has the same meaning as in the Freedom of Information Act 1982; "document" has the same meaning as in the Freedom of Information Act 1982. 110. Supreme Court—limitation of jurisdiction It is the intention of section 107 of this Act to alter or vary section 85 of the Constitution Act 1975. 111. Service on a person making a disclosure If a provision of this Act requires that a person who has made a disclosure under Part 2 be notified or given notice or information, that notification, notice or information must be given— (a) in writing; and (b) personally or by post. 112. Regulations The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. _______________ s. 110 -- 67 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 63 PART 11—AMENDMENT OF RELATED ACTS Division 1—Amendment of Ombudsman Act 1973 113. Protection of the Ombudsman and the officers of the Ombudsman In section 29 of the Ombudsman Act 1973, for sub-section (3) substitute— "(3) Despite sub-sections (1) and (2)— (a) no order shall be made— (i) restraining the Ombudsman from carrying out, or compelling him to carry out, an enquiry to determine whether an investigation should be conducted; or (ii) restraining the Ombudsman from carrying out, or compelling him to carry out, any investigation; or (iii) restraining the Ombudsman from making, or compelling him to make a report; or (iv) restraining the Ombudsman from making, or compelling him to make a recommendation; and (b) no proceedings shall be brought against the Ombudsman under which the issue of such an order is sought.". s. 113 See: Act No. 8414 Reprint No. 5 as at 1 January 1997 and amending Act Nos 93/1997, 15/1998, 46/1998, 102/1998 and 61/1999. LawToday: www.dms. dpc.vic. gov.au -- 68 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 64 114. New section 29A inserted After section 29 of the Ombudsman Act 1973 insert— '29A. Exemption from Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of the Ombudsman, the Deputy Ombudsman or any officer of the Ombudsman, to the extent to which the document discloses information that relates to— (a) a complaint; or (b) an enquiry under Part IIIA to determine whether an investigation should be conducted; or (c) an investigation under Part IV; or (d) a report made under Part IV; or (e) a recommendation made under Part IV. (2) In this section— "document" has the same meaning as in the Freedom of Information Act 1982.'. 115. New section 30A inserted After section 30 of the Ombudsman Act 1973 insert— "30A. Supreme Court—limitation of jurisdiction It is the intention of section 29(3) of this Act, as substituted by section 113 of the Whistleblowers Protection Act 2001, to alter or vary section 85 of the Constitution Act 1975.". s. 114 -- 69 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 65 Division 2—Amendment of Police Regulation Act 1958 116. Breaches of discipline In section 69(1) of the Police Regulation Act 1958, after paragraph (a) insert— "(ab) fails to comply with a direction under section 55 or 90 of the Whistleblowers Protection Act 2001; or". 117. Making of complaints After section 86L(2A) of the Police Regulation Act 1958 insert— "(2B) If a member of the force is required to make a complaint under section 86L(2A) about the conduct of another member of the force, it is sufficient compliance for the purposes of that sub-section if the member makes a disclosure of that conduct in accordance with Part 2 of the Whistleblowers Protection Act 2001 to— (a) if the disclosure relates to the Chief Commissioner, the Ombudsman or the Deputy Ombudsman; or (b) if the disclosure relates to any other member of the force, the Ombudsman, the Deputy Ombudsman or the Chief Commissioner.". s. 116 See: Act No. 6338 Reprint No. 8 as at 15 October 1998 and amending Act Nos 30/1999 and 61/1999. LawToday: www.dms. dpc.vic. gov.au -- 70 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 66 118. New section 86LA inserted After section 86L of the Police Regulation Act 1958 insert— "86LA. Whistleblowers Protection Act 2001 applies to certain complaints (1) If a member of the force makes a complaint in accordance with section 86L(2A) to a member of the force of a more senior rank about a member other than the Chief Commissioner, the member receiving the complaint must refer the complaint to the Chief Commissioner. (2) The Whistleblowers Protection Act 2001 applies to a complaint referred to in sub- section (1) as if the complaint were a disclosure made to the Chief Commissioner in accordance with Part 2 of that Act. (3) The Whistleblowers Protection Act 2001 applies to a complaint made by a member of the force in accordance with section 86L(2A), to the Deputy Ombudsman about the Chief Commissioner, as if the complaint were a disclosure made to the Deputy Ombudsman in accordance with Part 2 of that Act. (4) The Whistleblowers Protection Act 2001 applies to a complaint made by a member of the force in accordance with section 86L(2A), to the Deputy Ombudsman about any other member of the force, as if the complaint were a disclosure made to the Deputy Ombudsman in accordance with Part 2 of that Act.". s. 118 -- 71 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 67 119. New section 86TA inserted After section 86T of the Police Regulation Act 1958 insert— '86TA. Exemption from Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of the Ombudsman, the Deputy Ombudsman or any officer of the Ombudsman to the extent to which the document discloses information that relates to— (a) a complaint investigated by the Deputy Ombudsman under section 86N(4); or (b) an investigation under this Division of that complaint; or (c) a report on that investigation, including a report on the progress of the investigation. (2) In this section— "document" has the same meaning as in the Freedom of Information Act 1982.'. ═══════════════ s. 119 -- 72 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 68 ENDNOTES † Minister's second reading speech— Legislative Assembly: 31 August 2000 Legislative Council: 1 May 2001 The long title for the Bill for this Act was "to encourage and facilitate disclosures of improper conduct by public officers and public bodies, to protect persons making those disclosures and others from reprisals, to provide for the matters disclosed to be properly investigated and dealt with and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 31 August 2000 Legislative Council: 1 May 2001 Absolute majorities: Legislative Assembly: 5 April 2001, 14 June 2001 Legislative Council: 16 May 2001 Endnotes -- 73 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 69 INDEX Subject Section Actamendments to other Acts 113–119 commencement 2 exclusion of certain persons and bodies 4 purposes 1 Auditor-General referral of investigations to 41 Chief Commissioner of Police consideration of disclosures 33–35 disclosures relating to 6, 43 making of disclosures to 6 right to comment on adverse reports 59 See also Investigations by Chief Commissioner Complaints treatment of certain disclosures as 27 treatment of complaints as disclosures 26 Confidential information disclosure of during investigations 56 non-application of confidentiality provisions 15 subject to legal professional privilege 10 unlawful revealing of 22 Councillors disclosures relating to 6 Defamation protection for whistleblowers from actions for 16 Definitions corrupt conduct 3 councillor 3 Deputy Ombudsman 3 detrimental action 3 disclosed matter 3 improper conduct 3 Ombudsman 3 Police Minister 3 protected disclosure 3 public body 3 public officer 3 relevant Minister 3 university 3 Deputy Ombudsman consideration of disclosures 33–35 disclosures made to 6 protection of 107 referral of investigations to 43 reports on investigations 62 -- 74 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 70 Subject Section Disclosures anonymous disclosures 7 consideration of 28–30, 33–35 false disclosures 106 further disclosures not protected 23 in relation to past conduct 9 inability to identify subject of 8 information subject to legal professional privilege 10 making of 5–6 protected disclosures 11–13, 23 regarding Chief Commissioner 6, 43 councillors 6 members of Parliament 6, 96–101 members of police force 6, 33–37, 41 public bodies 5 public officers 5 treated as complaints 27 See also headings beginning with Investigations Public interest disclosures Whistleblowers Evidence in investigations 54, 56 inadmissibility 55, 90, 108 Freedom of Information Act 1982 exempt documents under s. 28 57 exemptions from 109 Investigations by Chief Commissioner actions on completion of 92 duty to investigate 84 implementation of recommendations 94 police compliance with directions given 90 reports 91, 93, 95 referral by Ombudsman to 41, 44, 84–85 taken over by Ombudsman 85–89 Investigations by Deputy Ombudsman 43, 62 Investigations by Ombudsman adverse reports 59, 61 conduct 47, 51–55, 58 disclosure of privileged or confidential information 56 duty to investigate 39 entry and inspection powers regarding 58 evidence 54, 56 legal representation 53 matters not investigated 40 notice of 50 notice of progress and results 67 notice of referral 46, 89 -- 75 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 71 Subject Section obstruction of process 60 police compliance with directions given 55 procedures 47 recommendations 63–66 referral by Ombudsman general provisions 41–46 of matter for investigation not under this Act 41 to Auditor-General 41 to Chief Commissioner 41, 44, 84–85 to Deputy Ombudsman 43 to public bodies 41–42 referral to Ombudsman at request of person making disclosure 74, 77, 85 by President of LC, Speaker of LA 96, 99 from public bodies 73–78 from Chief Commissioner 85–89 regarding members of Parliament 99–101 members of police force 43–44, 55, 85–89 public bodies and officers 42 reports 59, 61, 63, 66, 101 secondment of staff to assist in 48–49 taken over by Ombudsman 75–77, 86–89 Investigations by public bodies actions on completion of 81 referral of investigations to 42, 72 referral of investigations to Ombudsman by 73, 76–78 reports 81–83 taken over by Ombudsman 74–77 Members of Parliament disclosures regarding 6, 96–101 privileges 10 Ministers protection of deliberations of 57 Offences detrimental action taken in reprisal 18 false disclosures 106 revealing confidential information 22 Ombudsman determinations as to public interest disclosures 24–27, 32, 37, 97–98 functions 38 guidelines developed by 69 making of disclosures to 6 protection of 107 reports 102–103 referral of disclosures to 29–32, 34, 36 See also Deputy Ombudsman Investigations by Ombudsman -- 76 of 77 -- Act No. 36/2001 Whistleblowers Protection Act 2001 72 Subject Section Parliamentary committees protection of deliberations of 57 Parliamentary privileges 10 Police force disclosures regarding members of 6, 33–37, 41 duty to comply with directions in investigations 55, 90 secondment of members to assist in investigations 48 treatment of complaints as disclosures 26 treatment of disclosures as complaints 27 See also Investigations by Chief Commissioner Police Minister referral of matters to 65, 94 Privileged information 10, 56 Protected disclosures 11–13, 23 See also Whistleblowers Public bodies annual reports 104–105 consideration of disclosures 28–30 disclosures regarding 5 making of disclosures to 6, 28–32 procedures 68–71 right to comment on adverse reports 59 See also Investigations by public bodies Public officers disclosures regarding 5 Public interest disclosures determinations by Ombudsman 24–27, 32, 37, 97 referral to Ombudsman for determination 29, 30, 31, 34, 36 See also headings beginning with Investigations Regulations 112 Reprisals protection from and remedies for 18–21 Service of notices 111 Supreme Court limitation of jurisdiction 110 Whistleblowers applications for injunctions or orders by 20 immunity from liability 14 liability for own conduct 17 protection from confidentiality provisions 15 protection from defamation action 16 protection from reprisals 18–21 See also Disclosures ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– -- 77 of 77 --