Thursday, 21 March 2013
Public Interest Disclosure Bill 2013; Second Reading
That this bill be now read a second time.
I am pleased today to introduce the Public Interest Disclosure Bill 2013.
This Labor government is committed to building and maintaining a culture of transparency. An open and transparent government is a key feature of a healthy democracy.
That is why we introduced the most significant pro-disclosure reforms to the Freedom of Information Act since its commencement decades ago, removing application fees and introducing free decision-making time for journalists. We also established the Office of the Australian Information Commissioner, to provide a free, easy to access forum for review of freedom of information decisions.
And that is why we are introducing legislation to establish a public interest disclosure scheme and, in doing so, we are delivering on one of our election commitments.
It was my privilege to chair the House of Representatives Standing Committee on Legal and Constitutional Affairs which, in February 2009, reported on a preferred model for legislation to protect whistleblowers within the Australian government public sector. The bill the government is introducing today implements the government response to that report.
Blowing the whistle, or speaking out against suspected wrongdoing in the workplace, can be a risky course of action. At present, the Commonwealth is the only Australian jurisdiction without dedicated legislation to facilitate the making of public interest disclosures and protect those who make them.
Whistleblowers may risk subtle or more direct forms of workplace discrimination or harassment. They can be exposed to serious civil or criminal liability if they report misconduct through the wrong channels.
This bill will encourage a pro-disclosure culture by facilitating disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector. In doing so, it will promote the integrity and accountability of the Australian government public sector. It builds on practices established in the Australian Public Service for more than a dozen years but which have not been applied elsewhere in the Commonwealth public sector.
The bill does this by establishing a comprehensive framework for public interest disclosures in the Australian government public sector. It is the first stand-alone protection scheme at the federal level.
We have aimed for best practice legislation that will apply broadly across the entire Commonwealth public sector. This has required considerable consultation across government to provide a robust framework that will operate effectively.
There are three key aspects to this framework. The first is to encourage and facilitate all Commonwealth public officials to report suspected wrongdoing. The second is to make sure that reports of suspected wrongdoing are properly handled by agencies and in a reasonable time frame. The third is that bill protects public officials who report suspected wrongdoing from adverse consequences as a result of reporting their concerns.
The bill seeks to foster a culture in the Australian government public sector which supports reporting wrongdoing, makes sure that there are adequate responses by agencies to claims of wrongdoing and protects those who report wrongdoing.
A public official who is concerned about possible misconduct will, under this scheme, be able to report the matter to their own agency or make a disclosure direct to the Commonwealth Ombudsman, or to the Inspector-General of Intelligence and Security if the disclosure concerns the conduct of an intelligence agency. The scheme will be flexible to allow disclosures to be transferred to other agencies if the alleged conduct relates to another agency.
The scheme will also permit disclosures to be made under the scheme directly to other Commonwealth agencies that have power to investigate wrongdoing of the kind disclosed. The bill provides for investigative agencies, in addition to the Ombudsman and the Inspector-General of Intelligence and Security, to be prescribed in rules to be made under the act.
Prescribed investigative agencies will be able to undertake investigations under their own statutory frameworks. In these circumstances the official who reports the matter will have the protections of the Public Interest Disclosure Scheme provided by this bill.
The emphasis of the scheme is on disclosures of wrongdoing being reported to and investigated within government. This emphasis is designed to ensure that problems are identified and rectified. The bill establishes a scheme with clear procedures for officials to follow when a disclosure of suspected wrongdoing is reported.
Agencies will be obliged to investigate public interest disclosures and to ensure that appropriate action is taken in response to any recommendations that are made following an inquiry and report. The bill permits a principal officer not to investigate a disclosure in some circumstances, for example where the disclosure is lacking in substance or relates to conduct that has already been investigated.
A person who remains dissatisfied with the handling by an agency of a public interest disclosure they have made may make a complaint to the Ombudsman under the Ombudsman Act 1976 or, if the conduct relates to an intelligence agency, to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence Act 1986.
The Public Service Commissioner and the Merit Protection Commissioner will continue to have the role of inquiring into allegations of breaches of the code of conduct by Australian Public Service employees where the discloser is not satisfied with the outcome of an agency's own investigation.
Where a public official has reported suspected wrongdoing and considers that the investigation or the response is inadequate, they will be able to make their concerns public where that disclosure is not contrary to the public interest and where certain other criteria are met.
This option of public disclosure will not be available when the conduct in question relates to an intelligence agency, nor can there be public disclosure of any information which comprises intelligence or sensitive law enforcement information.
The risk that very sensitive information will be improperly or unwittingly publicly disclosed supports this approach. The government considers that the right of complaint to the Inspector-General of Intelligence and Security, who is an independent statutory office holder, provides adequate assurance that there will be proper review of handling of disclosures of this kind.
The bill will also make provision for public disclosure where the disclosure concerns a substantial and imminent danger to health and safety.
Coming forward to report concerns in a workplace can take courage. Speaking up about illegal, immoral or improper practices should be supported as a positive contribution to the integrity of an organisation. The bill provides extensive protections to public officials who report suspected wrongdoing.
An individual who makes a public interest disclosure in accordance with the provisions of this bill will not be subject to any civil, criminal or administrative liability for making the disclosure. Should there be unlawful reprisal action against a person who has made a qualifying disclosure, the Federal Court and the Federal Circuit Court will be able to make remedial orders, including for injunctive relief, an apology and compensation.
A person making a disclosure and suffering reprisals as a result would have the option of seeking remedies under either the Fair Work Act 2009 or the Public Interest Disclosure Bill, but not both.
The bill includes offences to prevent victimisation of disclosers and to protect their identity. Principal officers of agencies will have obligations to take reasonable steps to protect officials and their agencies from detriment arising from public interest disclosures they have made.
The Ombudsman and the Inspector-General of Intelligence and Security will have oversight functions of the scheme. The Ombudsman and the Inspector-General of Intelligence and Security will assist agencies with their compliance with the scheme, including through awareness programs and standards to be issued by the Ombudsman addressing key elements of the scheme. The government has provided funding to the Office of the Commonwealth Ombudsman and the Office of the Inspector-General of Intelligence and Security for their roles under the proposed scheme.
Given the complex nature of the issue I also consider that consultation should continue on the content and structure of the bill. If it becomes clear that the whistleblower scheme would benefit from legislative amendment I will be happy to bring them forward if this bill progresses.
The government will also be introducing a bill to make consequential amendments in support of the scheme in the Public Interest Disclosure Bill. This bill will include amendments to repeal the current whistleblower protection provisions in the Public Service Act 1999 and the Parliamentary Service Act 1999. This change is to avoid duplication.
The Public Interest Disclosure Bill will provide a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and those who report it.
I commend the bill to the House.