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Report No. 179

(B) Australia: Public Interest Disclosure Act, 1994:

Initially, the need for a Whistle blowers Act was pointed out in the Fitzgerald Report (at p.134) in relation to investigation into public misfeasance in Queensland. (See Current Topics, Vol. 67 (1993) Austr. L.J. p. 249). It was observed in that Report as follows:-

"There is an urgent need for legislation which prohibits any person from penalizing any other person for making accurate public statements about misconduct, inefficiency, or other problems within public instrumentalities. What is required is an accessible independent body to which disclosures can be made confidentially (at least in the first instance) and in any event free from fear of reprisals. The body must be able to investigate any complaint. Its ability to investigate the disclosures made to it and to protect those who assist it, will be vital 74 to the long-term flow of information upon whom its success will depend."

Later, the Gibbs Committee (on Criminal Law) also made a similar recommendation.

The Public Interest Disclosure Act, 1994 of Australia defines "employee" as including an employee within the meaning of the 'Public Sector Management Act, 1994. The 'proper authority' is defined as the Chief Executive Officer or its Governing Body.

It defines 'disclosable conduct' and also 'public interest disclosure'. It defines 'unlawful reprisal' also.

Section 4 elaborates 'disclosable conduct', section 9 defines 'proper authorities', section 10 refers to procedures to be established by government agencies, i.e., an administrative Unit, or territory instrumentality or a statutory office holder. Section 12 enables the Ombudsman under the Ombudsman Act to exercise power under that Act as if a reference in that Act to an investigation is a reference under this Act. Section 17 deals with 'frivolous etc. disclosures'. Section 19 refers to investigation by the proper authority and section 22 to action by it.

Part IV of the Act deals with unlawful reprisals. Section 25 prohibits unlawful reprisals and penalties can be either imprisonment or in number of 75 penalty units. The prosecution could be defended only on the limited grounds set out in sub-section (2) of section 25. Section 29 deals with 'liability in damage', Sections 30, 31 with 'injunction'.

Section 34 provides penalty of one year imprisonment or other points, for false or misleading information which is given knowingly or recklessly. This section is again in conformity with the principles laid down in New York Times v. Sullivan (1964) 376 US 254 which has been referred to in Chapter IV. The said judgment which was followed in England in Derbyshire v. Times Newspaper Ltd. 1993 (2) WLR 449 has also been followed by the Australian High Court in Theophanous v. Harold and Weekly Times Ltd., 1994 (68) ALR.713

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