14 December 2022
The Public Interest Disclosure Act 2013 (Cth) (PID Act) protects public officials who make public interest disclosures in accordance with the PID Act. This article provides a summary of the legislative framework to help you understand the Act.
Under section 26 of the PID Act, a disclosure is a ‘public interest disclosure’ if:
Should a public interest disclosure be made out under the PID Act, a number of protections are afforded to the disclosing party, which include:
A public interest disclosure can be made by any current or former ‘public official’.
A ‘public official’ is broadly defined in section 69 of the PID Act and includes:
Accordingly, people who can make a public interest disclosure include current or former:
A person who is not a current or former public official may also be deemed a public official by an authorised officer if the authorised officer believes on reasonable grounds that the person has information concerning disclosable conduct.
A current or former public official can make a public interest disclosure to ASIC if:
There are four categories of public interest disclosure, which have different requirements and depend on the recipient of the disclosure. A high-level overview of the requirements of each category is set out in the table below:
‘Disclosable conduct’ is broadly defined under section 29 of the PID Act. In summary, this includes conduct:
Under section 29(1) of the PID Act, disclosable conduct may be conduct that is:
Immunity from liability
An individual is not subject to any civil, criminal or administrative liability for making a public interest disclosure. The individual has absolute privilege in proceedings for defamation in respect of the public interest disclosure.
Further, a contract to which a public interest disclosure applies must not be terminated on the basis that the public interest disclosure constitutes a breach of the contract.
Protection from reprisal
It is an offence to take a reprisal, or to threaten to take a reprisal, against a person because of a public interest disclosure (including a proposed or a suspected public interest disclosure).
The act of taking a reprisal or threatening to take a reprisal attracts a penalty of imprisonment for two years, 120 penalty units or both. The threat of a reprisal may be expressed, implied, conditional or unconditional.
Under section 13(1) of the PID Act, a person (first person) “takes a reprisal” against another person (second person) if:
‘Detriment’ includes any disadvantage, including (without limitation) any of the following:
The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make orders for civil remedies (including compensation, injunctions and reinstatement of employment) if a reprisal is taken against a person because of a public interest disclosure (including a proposed or a suspected public interest disclosure).
Protection of anonymity
It is an offence to disclose the identity of an individual who makes a public interest disclosure. This offence attracts a penalty of six months imprisonment or 30 penalty units, or both. However, a number of exceptions apply (see section 20(3) of the PID Act).
If you have any questions about the legislation or how to handle public interest disclosures, contact partner Howard Rapke or a member of our Dispute Resolution & Litigation team in the Key Contacts section below.
Authors: Howard Rapke & Millie Clayton
 By virtue of the Public Interest Disclosure Rules 2019, ASIC is a prescribed authority under section 72(1)(p)(ii) of the PID Act.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.