Monday, 29 October 2012
Public Interest Disclosure (Whistleblower Protection) Bill 2012; First Reading
The Public Interest Disclosure (Whistleblower Protection) Bill 2012 aims to strengthen public integrity by encouraging and facilitating the disclosure of corruption, maladministration and other wrongdoing in the Commonwealth public sector. It will do so by providing protection for public officials to make such disclosures.
Public interest disclosure legislation—whistleblowing legislation, if you like—dates from 1978 in the United States, while in Australia the first was in 1990, with Queensland's original interim legislation. At the Commonwealth level, comprehensive legislation was first recommended by the Liberal chaired Senate Select Committee on Public Interest Whistleblowing in 1994, but it had always been left to the minor parties to roll their sleeves up and try to progress real reform—in particular, the bills introduced unsuccessfully by the Greens in 1993 and by the Democrats in 2002 and then in 2007.
Regrettably, though, these were all false starts, and it was not until the election of Kevin Rudd as Prime Minister, with Senator John Faulkner as Special Minister of State, that the prospect genuinely hardened of us finally seeing Commonwealth whistleblower legislation enacted, even more so when the Prime Minister's 2007 commitment was reinforced in 2009 by the parliamentary committee chaired by Mark Dreyfus, now a parliamentary secretary, which provided a detailed and bipartisan blueprint for Commonwealth legislation. The 2010 federal election offered more good news, this time in the Gillard government's agreements with the Greens, along with the members for Lyne and New England and with me, to promote open and accountable government and to improve the processes and integrity of the parliament.
But alas, so far, all of this has come to nothing, even though the promise of whistleblowing legislation is clearly another test of whether or not the government can be believed when it says it will do things, a test it stands to fail unless it immediately either presents its own legislation, as good or better than this private member's bill, or gets behind this bill. It is also a test of the Liberal-Nationals coalition's continuing commitment to strengthening public integrity, since it was the Liberal government in New South Wales in 1994, the Liberal and National parties in Queensland in 2006 and the Liberal government in Western Australia in 2010 which drove important whistleblowing reforms in those jurisdictions.
More broadly, there is the international test. The government committed in 2010 to have whistleblowing legislation in place by the end of 2012 when it signed on to the G20 Anti-Corruption Action Plan. By supporting this bill, which is consistent with all its own commitments, Australia can deliver on that promise on time and show that it is once again leading the world in best practice public integrity measures. Heaven knows we need them.
This bill, if enacted, will get things back on track. It would realise the aspirations of Liberal, Greens and Democrats senators and deliver on the promises of this and the previous Labor governments. It would also deliver on our G20 commitment. And, most importantly, it would genuinely strengthen public integrity.
In essence, this bill would give virtually all federal public officials protection, including a variety of persons either currently or previously employed by, contracted by, exercising a power of or performing a function of an agency. Importantly, especially in the current political climate, a public official is defined in the bill to include senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984. Such officials may report a broad range of disclosable conduct and, in particular, corrupt conduct carried out by any public official or agency or by any person in relation to a public official or agency, serious and substantial maladministration, misuse of public money or public property, danger to public health, danger to the environment or detrimental action towards anyone as a result of a public interest disclosure.
Disclosures may be made orally or in writing, anonymously if need be, and regardless of whether or not the official asserts that the disclosure is made under the protection of the act. Quite simply, so long as a public official honestly believes on reasonable grounds that the information disclosed demonstrates disclosable conduct, or where the information disclosed does tend to demonstrate disclosable conduct, regardless of the belief of the public official making the public interest disclosure, he or she is covered by this bill. What is not covered, and obviously nor should it be, is if the person making the disclosure knows the information is false, misleading or vexatious, if the information relates entirely to a policy disagreement regarding public expenditure or if it relates entirely to judicial or tribunal matters specifically excluded by the bill.
This bill seeks to normalise public interest disclosures by putting in place culture changing structures and processes. For instance, disclosure officers must be appointed and disclosures must be investigated. Known or suspected offences must be referred to the Australian Federal Police. Oversight is to rest with the Commonwealth Ombudsman and with the Inspector-General of Intelligence and Security.
Importantly, this bill gives a public official the right to approach a journalist to publicise their concern in circumstances where this is justified—for instance, when they have made a public interest disclosure and the disclosure officer or another relevant person, depending on the circumstances, has refused or failed to receive the disclosure; in some circumstances when an investigating entity has refused or failed to investigate the disclosure; or in various other reasonable circumstances, including when the disclosure has been investigated but no action is taken and there remains clear evidence demonstrating that one or more instances of the disclosable conduct mentioned in the disclosure has occurred.
Moreover, a public official may in extreme circumstances go directly to the media if he or she honestly believes on reasonable grounds that they have information that tends to show disclosable conduct and there exists a significant risk of detrimental action to themselves or someone else if a disclosure is made through the normal channels—in other words, if the public official has good reason to think it would be unreasonable in all the circumstances for the disclosure to be made through normal channels.
Whistleblowers—in other words, those professional people who take a stand and speak truth to power—are every bit as crucial to a healthy democracy as an independent media and judiciary. But whistleblowers are too often left with an unbearable personal cost, as they lose their jobs, their friends and family, their minds and sometimes even their lives. It is beyond time we gave them the protection they need and deserve. As recommended by the Dreyfus committee, this bill requires public agencies to prevent reprisals from being taken and creates robust compensation mechanisms, mirroring those which have been working well in the United Kingdom for over 10 years now, by ensuring access to appropriate and affordable remedies under our own Fair Work Act.
There is nothing radical about any of this and no good reason why the government or opposition would oppose it. Every state and territory now has whistleblowing legislation and it is only at the Commonwealth level a yawning gap remains. All of the parties have said they support remedying this, and just in recent weeks here in the Australian Capital Territory very good legislation has been enacted by a Labor government with the support of all parties. That legislation is very similar to the bill I am tabling today.
Yes, governments do not like whistleblowers shining a light on incompetence and misconduct and, yes, oppositions know they will one day be governments and do not want to create future problems for themselves and, yes, there are sure to be some senior bureaucrats who do not like the look of this and who want to keep talking about it seemingly forever. It is no wonder the government's public interest disclosure bill is rumoured to have reached draft No. 80 or 90 or some such figure. But it is way beyond time for this government to honour its promise—made repeatedly—to deliver best practice whistleblowing legislation. If it will not, the community should ask: what is the government trying to hide? If it will not, I suggest it is time for the opposition to step up to the plate and do the government's job by supporting this bill.
In closing, I acknowledge and thank AJ Brown, professor of public law at Griffith University and a director of Transparency International Australia, for his assistance in the development of this bill. No-one has done more than Professor Brown to improve public integrity in Australia and he deserves the nation's gratitude. I also thank the Blueprint for Free Speech organisation for its role in helping research and advise on parts of the bill. I commend the bill to the House.
Bill read a first time.