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This is a Bill, not an Act. For current law, see the Acts databases.


EVIDENCE AND PUBLIC INTEREST DISCLOSURE LEGISLATION AMENDMENT BILL 2011

                    Western Australia


 Evidence and Public Interest Disclosure
    Legislation Amendment Bill 2011

                       CONTENTS


      Part 1 -- Preliminary
1.    Short title                                                 2
2.    Commencement                                                2
      Part 2 -- Amendments to the
           Evidence Act 1906 about
           protection of confidential
           communications given in
           professional confidential
           relationships, and protection of
           journalists' sources
3.    Act amended                                                 3
4.    Heading replaced                                            3
5.    Sections 20A to 20M inserted                                3
      20A.     Terms used                                   3
      20B.     Application of protection provisions (PCR)   4
      20C.     Exclusion of evidence of protected
               confidences                                   5
      20D.     Loss of professional confidential
               relationship protection: consent              7
      20E.     Loss of professional confidential
               relationship protection: misconduct           8
      20F.     Ancillary orders                              9
      20G.     Terms used                                   10
      20H.     Application of protection provisions
               (journalists)                                10
      20I.     Protection of identity of informants         11
      20J.     Direction to give identifying evidence       11
      20K.     Effect of misconduct as to directions        13



                         232--1B                                  page i
Evidence and Public Interest Disclosure Legislation Amendment Bill 2011



Contents



              20L.     Identifying informant with consent           16
              20M.     Ancillary orders                             16

              Part 3 -- Amendments about further
                   protections under the Public
                   Interest Disclosure Act 2003
              Division 1 -- Preliminary
      6.      Act amended                                                17
              Division 2 -- Amendments about injunctions
                    concerning reprisals
      7.      Section 15A inserted                                       17
              15A.     Injunction or order                          17
              Division 3 -- Amendments about relocation
      8.      Section 15B inserted                                       18
              15B.     Relocation of public service employee        18
              Division 4 -- Amendments about anonymous
                    disclosure
      9.      Section 5 amended                                          19
      10.     Section 8 amended                                          19
      11.     Section 10 amended                                         19
      12.     Section 12 amended                                         20
      13.     Section 16 amended                                         20
      14.     Section 17 amended                                         20
              Division 5 -- Amendments about disclosure to
                    journalists
      15.     Section 7A inserted                                        20
              7A.      Disclosure to journalist                     20
      16.     Section 16 amended                                         21
      17.     Section 18A inserted                                       22
              18A.     Protections as to disclosure to journalist   22




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY



      Evidence and Public Interest Disclosure
         Legislation Amendment Bill 2011


                               A Bill for


An Act to amend the Evidence Act 1906 and the Public Interest
Disclosure Act 2003.



The Parliament of Western Australia enacts as follows:




                                                                page 1
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 1         Preliminary

     s. 1



1                           Part 1 -- Preliminary
2    1.       Short title
3             This is the Evidence and Public Interest Disclosure Legislation
4             Amendment Act 2011.

5    2.       Commencement
6             This Act comes into operation as follows --
7              (a) Part 1 -- on the day on which this Act receives the
8                    Royal Assent;
9              (b) the rest of the Act -- on a day fixed by proclamation,
10                   and different days may be fixed for different provisions.




     page 2
      Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
         Amendments to the Evidence Act 1906 about protection of       Part 2
      confidential communications given in professional confidential
                 relationships, and protection of journalists' sources

                                                                           s. 3


1    Part 2 -- Amendments to the Evidence Act 1906 about
2     protection of confidential communications given in
3    professional confidential relationships, and protection
4                    of journalists' sources
5    3.      Act amended
6            This Part amends the Evidence Act 1906.

7    4.      Heading replaced
8            Delete the heading before section 19A and insert:
9

10                  Protection of confidential communications given in
11                     counselling concerning sexual assault
12


13   5.      Sections 20A to 20M inserted
14           After section 19M insert:
15

16        Protection of confidential communications given in professional
17                           confidential relationships

18        20A.     Terms used
19           (1)   In this section and in sections 20B to 20F --
20                 confidant means a person to whom a communication is
21                 made in confidence and includes a journalist as defined
22                 in section 20G;
23                 harm includes actual physical bodily harm, financial
24                 loss, stress or shock, damage to reputation or emotional
25                 or psychological harm, such as shame, humiliation and
26                 fear;




                                                                         page 3
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1                   protected confidence means a communication made by
2                   a person in confidence to another person (the
3                   confidant) --
4                     (a) in the course of a relationship in which the
5                           confidant was acting in a professional capacity;
6                           and
7                     (b) when the confidant was under an express or
8                           implied obligation not to disclose its contents,
9                           whether or not the obligation arises under law
10                          or can be inferred from the nature of the
11                          relationship between the person and the
12                          confidant;
13                  protected confider, in relation to a protected
14                  confidence, means the person who made the protected
15                  confidence;
16                  protected identity information means information
17                  about, or enabling a person to ascertain, the identity of
18                  the person who made a protected confidence;
19                  protection provisions (PCR) means this section and
20                  sections 20C to 20F.
21            (2)   For the purposes of the protection provisions (PCR), a
22                  communication may be made in confidence even if it is
23                  made in the presence of a third party if the third party's
24                  presence is necessary to facilitate communication.

25          20B.    Application of protection provisions (PCR)
26            (1)   The protection provisions (PCR) do not apply in
27                  relation to a proceeding the hearing of which began
28                  before the commencement of those provisions.
29            (2)   The protection provisions (PCR) apply in relation to a
30                  protected confidence whether made before or after the
31                  commencement of those provisions.



     page 4
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
        Amendments to the Evidence Act 1906 about protection of       Part 2
     confidential communications given in professional confidential
                relationships, and protection of journalists' sources

                                                                               s. 5

1           (3)   The protection provisions (PCR) do not apply in
2                 relation to matters that are the subject of the protection
3                 provisions as defined in section 19A(1).
4           (4)   The protection provisions (PCR) do not affect the law
5                 relating to legal professional privilege.
6           (5)   The protection provisions (PCR) do not affect the law
7                 relating to evidence of a confession made by a person
8                 to a member of the clergy in the member's professional
9                 capacity according to the ritual of the church or
10                religious denomination concerned.
11          (6)   A court may give a direction under the protection
12                provisions (PCR) in respect of a protected confidence
13                or protected identity information whether or not the
14                protected confidence or protected identity information
15                is privileged or protected under another provision of
16                this Act or would be so privileged or protected except
17                for a limitation or restriction imposed by that provision.
18          (7)   The protection provisions (PCR) are not intended to
19                exclude or limit the operation of section 5 or the power
20                of a court under any other law of the State to take any
21                action if it is in the interests of justice to do so.

22       20C.     Exclusion of evidence of protected confidences
23          (1)   A court may direct that evidence not be adduced in a
24                proceeding if the court finds that adducing it would
25                disclose --
26                  (a) a protected confidence; or
27                  (b) the contents of a document recording a
28                        protected confidence; or
29                  (c) protected identity information.
30          (2)   A court may give such a direction --
31                 (a) on its own initiative; or


                                                                         page 5
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1                     (b)    on the application of the protected confider or
2                            confidant concerned, whether or not either is a
3                            party.
4             (3)   A court must give such a direction if it is satisfied
5                   that --
6                     (a) it is likely that harm would or might be caused,
7                          whether directly or indirectly, to the protected
8                          confider if the evidence is adduced; and
9                     (b) the nature, extent and likelihood of the harm
10                         outweigh the desirability of the evidence being
11                         given.
12            (4)   Without limiting the matters that a court may have
13                  regard to for the purposes of this section, it must have
14                  regard to the following matters --
15                    (a) the probative value of the evidence in the
16                          proceeding;
17                    (b) the importance of the evidence in the
18                          proceeding;
19                    (c) the nature and gravity of the relevant offence,
20                          cause of action or defence and the nature of the
21                          subject matter of the proceeding;
22                    (d) the availability of any other evidence
23                          concerning the matters to which the protected
24                          confidence or protected identity information
25                          relates;
26                    (e) the likely effect of adducing evidence of the
27                          protected confidence or protected identity
28                          information, including the likelihood of harm,
29                          and the nature and extent of harm that would be
30                          caused to the protected confider;
31                     (f) the means, including any ancillary orders that
32                          may be made under section 20F, available to
33                          the court to limit the harm or extent of the harm


     page 6
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
        Amendments to the Evidence Act 1906 about protection of       Part 2
     confidential communications given in professional confidential
                relationships, and protection of journalists' sources

                                                                             s. 5

1                         that is likely to be caused if evidence of the
2                         protected confidence or the protected identity
3                         information is disclosed;
4                   (g)   the likely effect of the evidence in relation to --
5                            (i) a prosecution that has commenced but
6                                  has not been finalised; or
7                           (ii) an investigation, of which the court is
8                                  aware, into whether or not an offence
9                                  has been committed;
10                  (h)   whether the substance of the protected
11                        confidence or the protected identity information
12                        has already been disclosed by the protected
13                        confider or any other person;
14                  (i)   the public interest in preserving the
15                        confidentiality of protected confidences;
16                  (j)   the public interest in preserving the
17                        confidentiality of protected identity
18                        information.
19          (5)   A court must not give a direction under this section in a
20                proceeding for defamation concerning the publication
21                of alleged defamatory matter containing or relying on a
22                protected confidence unless the court is first satisfied
23                that the content of the protected confidence is true, and
24                if the court is so satisfied, subsections (3) and (4)
25                apply.
26          (6)   A court must state its reasons for giving or refusing to
27                give a direction under this section.

28       20D.     Loss of professional confidential relationship
29                protection: consent
30                The protection provisions (PCR) do not prevent the
31                giving or adducing of evidence with the consent of the
32                protected confider concerned.


                                                                        page 7
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1           20E.    Loss of professional confidential relationship
2                   protection: misconduct
3             (1)   In this section --
4                   misconduct, in relation to a person (the confider) who
5                   makes a communication in confidence to another
6                   person, includes any of the following --
7                     (a) an offence committed by the confider;
8                     (b) an act or omission on the part of the confider
9                            that renders the confider liable to a civil
10                           penalty;
11                    (c) deceit, dishonesty, inappropriate partiality or a
12                           breach of trust on the part of the confider;
13                    (d) the confider acting corruptly, or corruptly
14                           failing to act, in any capacity;
15                    (e) the confider corruptly taking advantage of the
16                           confider's position to obtain a benefit for the
17                           confider or another person or to cause a
18                           detriment to another person;
19                     (f) the confider engaging in conduct that adversely
20                           affects, or could adversely affect, directly or
21                           indirectly, the honest or impartial performance
22                           of the functions of any person in any capacity;
23                    (g) misuse, on the part of the confider, of
24                           information or material that the confider has
25                           acquired in any capacity, whether the misuse is
26                           to obtain a benefit for the confider or any other
27                           person or to cause a detriment to another
28                           person;
29                    (h) conduct providing reasonable grounds for the
30                           termination of the confider's employment;
31                     (i) conduct providing reasonable grounds for
32                           disciplining the confider in relation to
33                           unsatisfactory professional conduct or


     page 8
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
        Amendments to the Evidence Act 1906 about protection of       Part 2
     confidential communications given in professional confidential
                relationships, and protection of journalists' sources

                                                                               s. 5

1                         professional misconduct, or the breach of a
2                         professional standard, in relation to the
3                         confider's profession, whether or not the
4                         confider is a member of the body that
5                         prescribed the standard.
6           (2)   The protection provisions (PCR) do not prevent the
7                 adducing of evidence of a communication made or the
8                 contents of a document prepared in the furtherance of
9                 misconduct by a person who makes a communication
10                in confidence to another person.
11          (3)   For the purposes of this section, if the misconduct is a
12                fact in issue and there are reasonable grounds for
13                believing that --
14                  (a) the misconduct occurred; and
15                  (b) a communication was made or document
16                         prepared in furtherance of the misconduct,
17                the court may find that the communication was so
18                made or document so prepared.

19       20F.     Ancillary orders
20                Without limiting any action the court may take to limit
21                the possible harm, or extent of the harm, likely to be
22                caused by the disclosure of evidence of a protected
23                confidence or protected identity information, the court
24                may --
25                  (a) order that all or part of the evidence be heard in
26                        camera; and
27                  (b) make such orders relating to the suppression of
28                        publication of all or part of the evidence given
29                        before the court as, in its opinion, are necessary
30                        to protect the safety and welfare of the
31                        protected confider and are in the interests of
32                        justice.


                                                                        page 9
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1                    Protection of identity of journalists' informants

2           20G.     Terms used
3                    In this section and in sections 20H to 20M --
4                    direction means a direction under section 20J(1);
5                    identifying evidence has the meaning given in
6                    section 20I;
7                    informant means a person who gives information to a
8                    journalist in the normal course of the journalist's work
9                    in the expectation that the information may be
10                   published in a news medium;
11                   journalist means a person engaged in the profession or
12                   occupation of journalism in connection with the
13                   publication of information in a news medium;
14                   national security has the meaning that it has in the
15                   National Security Information (Criminal and Civil
16                   Proceedings) Act 2004 (Commonwealth) section 7;
17                   news medium means a medium for the dissemination
18                   to the public or a section of the public of news and
19                   observations on news;
20                   protection provisions (journalists) means this section
21                   and sections 20I to 20M.

22          20H.     Application of protection provisions (journalists)
23             (1)   The protection provisions (journalists) do not apply in
24                   relation to a proceeding the hearing of which began
25                   before the commencement of those provisions.
26             (2)   The protection provisions (journalists) apply in relation
27                   to information given by an informant whether given
28                   before or after the commencement of those provisions.
29             (3)   The protection provisions (journalists) apply to a
30                   person acting judicially in any proceeding even if the
31                   law by which the person has authority to hear, receive,

     page 10
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
        Amendments to the Evidence Act 1906 about protection of       Part 2
     confidential communications given in professional confidential
                relationships, and protection of journalists' sources

                                                                              s. 5

1                 and examine evidence provides that this Act does not
2                 apply to the proceeding.
3           (4)   The protection provisions (journalists) are not intended
4                 to exclude or limit the operation of section 5 or the
5                 power that a person acting judicially has under any
6                 other law of the State to take any action if it is in the
7                 interests of justice to do so.

8        20I.     Protection of identity of informants
9                 If a journalist has promised an informant not to
10                disclose the informant's identity, neither the journalist
11                nor a person for whom the journalist was working at
12                the time of the promise is compellable to give evidence
13                that would disclose the identity of the informant or
14                enable that identity to be ascertained (identifying
15                evidence).

16       20J.     Direction to give identifying evidence
17          (1)   Despite section 20I, a person acting judicially may
18                direct a person referred to in that section to give
19                identifying evidence.
20          (2)   A person acting judicially may give a direction only if
21                satisfied that, having regard to the issues to be
22                determined in the proceeding, the public interest in the
23                disclosure of the identity of the informant outweighs --
24                  (a) any likely adverse effect of the disclosure of the
25                        identity on the informant or any other person;
26                        and
27                  (b) the public interest in the communication of
28                        facts and opinions to the public by the news
29                        media and, accordingly also, in the ability of
30                        the news media to access sources of facts.
31          (3)   Without limiting the matters that a person acting
32                judicially may have regard to for the purposes of this

                                                                        page 11
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1                   section, the person acting judicially must have regard
2                   to the following matters --
3                     (a) the probative value of the identifying evidence
4                           in the proceeding;
5                     (b) the importance of the identifying evidence in
6                           the proceeding;
7                     (c) the nature and gravity of the relevant offence,
8                           cause of action or defence and the nature of the
9                           subject matter of the proceeding;
10                    (d) the availability of any other evidence
11                          concerning the matters to which the identifying
12                          evidence relates;
13                    (e) the likely effect of the identifying evidence,
14                          including the likelihood of harm, and the nature
15                          and extent of harm that would be caused to the
16                          informant or any other person;
17                     (f) the means, including any ancillary orders that
18                          may be made under section 20M, available to
19                          the person acting judicially to limit the harm or
20                          extent of the harm that is likely to be caused if
21                          the identifying evidence is given;
22                    (g) the likely effect of the identifying evidence in
23                          relation to --
24                             (i) a prosecution that has commenced but
25                                  has not been finalised; or
26                            (ii) an investigation, of which the person
27                                  acting judicially is aware, into whether
28                                  or not an offence has been committed;
29                    (h) whether the substance of the identifying
30                          evidence has already been disclosed by the
31                          informant or any other person;
32                     (i) the risk to national security or to the security of
33                          the State;


     page 12
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
        Amendments to the Evidence Act 1906 about protection of       Part 2
     confidential communications given in professional confidential
                relationships, and protection of journalists' sources

                                                                            s. 5

1                   (j)   whether or not there was misconduct, as
2                         defined in section 20K(1), on the part of the
3                         informant or the journalist in relation to
4                         obtaining, using, giving or receiving
5                         information.
6           (4)   A person acting judicially must state the person's
7                 reasons for giving or refusing to give a direction.

8        20K.     Effect of misconduct as to directions
9           (1)   In this section --
10                misconduct, in relation to an informant or a journalist,
11                includes any of the following --
12                  (a) an offence committed by the informant or
13                         journalist;
14                  (b) an act or omission on the part of the informant
15                         or journalist that renders him or her liable to a
16                         civil penalty;
17                  (c) deceit, dishonesty, inappropriate partiality or a
18                         breach of trust on the part of the informant or
19                         journalist;
20                  (d) the informant or journalist acting corruptly, or
21                         corruptly failing to act, in any capacity;
22                  (e) the informant or journalist corruptly taking
23                         advantage of his or her position to obtain a
24                         benefit for himself, herself or another person or
25                         to cause a detriment to another person;
26                   (f) the informant or journalist engaging in conduct
27                         that adversely affects, or could adversely affect,
28                         directly or indirectly, the honest or impartial
29                         performance of the functions of any person in
30                         any capacity;
31                  (g) misuse, on the part of the informant or
32                         journalist, of information or material that he or


                                                                        page 13
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1                            she has acquired in any capacity, whether the
2                            misuse is to obtain a benefit for himself, herself
3                            or another person or to cause a detriment to
4                            another person;
5                     (h)    conduct providing reasonable grounds for the
6                            termination of the informant or journalist's
7                            employment;
8                      (i)   conduct providing reasonable grounds for
9                            disciplining the informant or journalist in
10                           relation to unsatisfactory professional conduct
11                           or professional misconduct, or the breach of a
12                           professional standard, in relation to the
13                           informant or journalist's profession, whether or
14                           not he or she is a member of the body that
15                           prescribed the standard.
16             (2)   A person acting judicially who finds that there was
17                   misconduct on the part of an informant or a journalist
18                   in relation to obtaining, using, giving or receiving
19                   information --
20                     (a) may, but is not bound to, give a direction; and
21                     (b) must have regard to the principles set out in
22                            subsection (3) when deciding whether or not to
23                            give a direction.
24             (3)   The principles mentioned in subsection (2)(b) are as
25                   follows --
26                     (a) that generally a direction should be given if --
27                            (i) the misconduct was the commission of
28                                  an offence under The Criminal Code
29                                  section 81 or a breach of a public sector
30                                  standard, code of conduct or code of
31                                  ethics, as those terms are defined in the
32                                  Public Sector Management Act 1994
33                                  section 3(1); and


     page 14
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
        Amendments to the Evidence Act 1906 about protection of       Part 2
     confidential communications given in professional confidential
                relationships, and protection of journalists' sources

                                                                              s. 5

1                          (ii)   the offence or breach concerned the
2                                 disclosure of information that was
3                                 public interest information as defined in
4                                 the Public Interest Disclosure Act 2003
5                                 section 3(1); and
6                          (iii) the information could have been, but
7                                 was not, disclosed in accordance with
8                                 the Public Interest Disclosure Act 2003;
9                   (b)   that generally a direction should be given if the
10                        information given to a journalist could have
11                        been provided, in a way that did not constitute
12                        misconduct, to another person to deal with the
13                        concern;
14                  (c)   that generally a direction should be given if the
15                        information given to a journalist could have
16                        been obtained by the journalist under the
17                        Freedom of Information Act 1992 or by other
18                        lawful means;
19                  (d)   that generally a direction should be given if the
20                        misconduct involved a breach of privacy that
21                        was not warranted in the circumstances, having
22                        regard to the value to be attached to --
23                           (i) the privacy of information regarding
24                                private citizens generally; or
25                          (ii) the privacy of information regarding
26                                matters which may be commercial in
27                                confidence; or
28                         (iii) the principle of Cabinet confidentiality;
29                                or
30                         (iv) the principle of public interest
31                                immunity;
32                  (e)   that generally a direction should be given if a
33                        communication made to a journalist, if



                                                                      page 15
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 2         Amendments to the Evidence Act 1906 about protection of
                    confidential communications given in professional confidential
                    relationships, and protection of journalists' sources

     s. 5

1                            published, would give rise to a risk to national
2                            security or to the security of the State;
3                      (f)   that it is otherwise in the public interest to give
4                            or refuse to give a direction.
5              (4)   For the purposes of this section, if the misconduct is a
6                    fact in issue and there are reasonable grounds for
7                    believing that there was misconduct on the part of the
8                    informant or the journalist in relation to obtaining,
9                    using, giving or receiving information, the person
10                   acting judicially in the proceeding may so find.

11          20L.     Identifying informant with consent
12                   The protection provisions (journalists) do not prevent
13                   the giving or adducing of identifying evidence with the
14                   informant's consent.

15          20M.     Ancillary orders
16                   Without limiting any action the person acting judicially
17                   may take to limit the possible harm, or extent of the
18                   harm, likely to be caused by identifying evidence, the
19                   person acting judicially may --
20                     (a) order that all or part of the evidence be heard in
21                           camera; and
22                    (b) make such orders relating to the suppression of
23                           publication of all or part of the evidence given
24                           before the person acting judicially as, in the
25                           opinion of the person acting judicially, are
26                           necessary to protect the informant's safety and
27                           welfare and are in the interests of justice.
28




     page 16
      Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
           Amendments about further protections under the Public       Part 3
                                     Interest Disclosure Act 2003
                                                      Preliminary Division 1
                                                                          s. 6


1         Part 3 -- Amendments about further protections
2           under the Public Interest Disclosure Act 2003
3                           Division 1 -- Preliminary
4    6.      Act amended
5            This Part amends the Public Interest Disclosure Act 2003.

6                 Division 2 -- Amendments about injunctions
7                             concerning reprisals
8    7.      Section 15A inserted
9            After section 14 insert:
10

11         15A.      Injunction or order
12           (1)     A person who believes that detrimental action has been
13                   taken or may be taken against him or her in reprisal for
14                   a disclosure of public interest information under this
15                   Act may apply to the Supreme Court for an order or
16                   injunction under this section.
17           (2)     If the Supreme Court, on an application under
18                   subsection (1), is satisfied that a person has taken or
19                   intends to take detrimental action against the applicant
20                   in reprisal for a disclosure of public interest
21                   information under this Act, the Court may --
22                     (a) order the person who took the detrimental
23                           action to remedy that action; or
24                     (b) grant an injunction in any terms the Court
25                           considers appropriate.
26           (3)     The Supreme Court, pending the final determination of
27                   an application under subsection (1), may --
28                     (a) make an interim order in the terms of
29                           subsection (2)(a); or

                                                                         page 17
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 3         Amendments about further protections under the Public
                    Interest Disclosure Act 2003
     Division 3     Amendments about relocation
     s. 8


1                     (b)   grant an interim injunction.
2


3                Division 3 -- Amendments about relocation
4    8.        Section 15B inserted
5              Before section 15 insert:
6


7         15B.       Relocation of public service employee
8              (1)   In this section --
9                    employing authority, in relation to a public service
10                   employee, means that person's employing authority
11                   under the Public Sector Management Act 1994
12                   section 5;
13                   public service employee means --
14                     (a) a public service officer; or
15                     (b) an employee employed in an organisation;
16                   organisation means an organisation as defined in the
17                   Public Sector Management Act 1994 section 3(1).
18             (2)   A public service employee may apply in writing to his
19                   or her employing authority for relocation on the
20                   grounds that --
21                     (a) detrimental action has been taken or may be
22                           taken against the employee in reprisal for a
23                           disclosure of public interest information under
24                           this Act; and
25                     (b) the only practical means of removing or
26                           substantially removing the danger of a reprisal
27                           is to relocate the employee.
28             (3)   If the employing authority is satisfied that the grounds
29                   are established it must, as far as practicable, make
30                   arrangements to relocate the employee away from the


     page 18
      Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
           Amendments about further protections under the Public       Part 3
                                     Interest Disclosure Act 2003
                      Amendments about anonymous disclosure       Division 4
                                                                          s. 9


1                   employee's existing work location whether within the
2                   employee's current department or organisation or to
3                   another department or organisation.
4             (4)   Subsection (3) does not authorise the relocation of a
5                   public service employee unless the employee consents
6                   to the specific arrangements proposed by the
7                   employing authority.
8


9          Division 4 -- Amendments about anonymous disclosure
10   9.       Section 5 amended
11            After section 5(5) insert:
12

13           (6A)   A person may make a disclosure of public interest
14                  information anonymously.
15


16   10.      Section 8 amended
17            After section 8(3) insert:
18

19            (4)   Subsection (3) does not apply in respect of a person
20                  who made an anonymous disclosure.
21

22   11.      Section 10 amended
23            After section 10(4) insert:
24

25            (5)   Subsections (1), (2), (3) and (4) do not apply in respect
26                  of a person who made an anonymous disclosure.
27




                                                                         page 19
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 3         Amendments about further protections under the Public
                    Interest Disclosure Act 2003
     Division 5     Amendments about disclosure to journalists
     s. 12


1    12.       Section 12 amended
2              After section 12(4) insert:
3

4             (5A)   Subsection (4)(b) does not apply in respect of a person
5                    who made an anonymous disclosure.
6


7    13.       Section 16 amended
8              After section 16(2) insert:
9

10            (3A)   Subsection (2) does not apply in respect of a person
11                   who made an anonymous disclosure.
12


13   14.       Section 17 amended
14             After section 17(1) insert:
15

16            (2A)   Subsection (1)(a) does not apply in respect of a person
17                   who made an anonymous disclosure.
18


19         Division 5 -- Amendments about disclosure to journalists
20   15.       Section 7A inserted
21             At the end of Part 2 Division 1 insert:
22


23          7A.      Disclosure to journalist
24             (1)   In this section --
25                   journalist means a person engaged in the profession or
26                   occupation of journalism in connection with the
27                   publication of information in a medium for the



     page 20
      Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
           Amendments about further protections under the Public       Part 3
                                     Interest Disclosure Act 2003
                     Amendments about disclosure to journalists   Division 5
                                                                         s. 16


1                      dissemination to the public or a section of the public of
2                      news and observations on news.
3                (2)   A person may make a disclosure to a journalist of
4                      substantially the same information that was the subject
5                      of a disclosure of public interest information that the
6                      person has already made under this Act if the proper
7                      authority to which the disclosure was made, or the
8                      person to whom a matter raised by the disclosure was
9                      referred under section 9(1)(b) --
10                       (a) has refused to investigate, or has discontinued
11                             the investigation of, a matter raised by the
12                             disclosure; or
13                       (b) has not completed an investigation of a matter
14                             raised by the disclosure within the period
15                             ending 6 months after the disclosure was made;
16                             or
17                       (c) has completed an investigation of a matter
18                             raised by the disclosure but has not
19                             recommended the taking of action in respect of
20                             the matter; or
21                       (d) has not complied with section 10(1) or (4), if
22                             applicable, in relation to the disclosure.
23


24   16.         Section 16 amended
25         (1)   After section 16(1)(c) insert:
26

27                       (d)   the disclosure is made in accordance with an
28                             order of a court or any other person or body
29                             having authority to hear, receive and examine
30                             evidence; or
31




                                                                            page 21
     Evidence and Public Interest Disclosure Legislation Amendment Bill 2011
     Part 3         Amendments about further protections under the Public
                    Interest Disclosure Act 2003
     Division 5     Amendments about disclosure to journalists
     s. 17


1          (2)   After section 16(3)(d) insert:
2

3                        (e)   the disclosure is made in accordance with an
4                              order of a court or any other person or body
5                              having authority to hear, receive and examine
6                              evidence; or
7


8    17.         Section 18A inserted
9                At the end of Part 3 insert:
10


11           18A.      Protections as to disclosure to journalist
12                     A person who makes a disclosure to a journalist in
13                     accordance with section 7A(2) is, for the purposes of
14                     this Part, to be taken to be a person who makes a
15                     disclosure of public interest information.
16




 


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