George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

The coalition strongly supports this bill. As those listening to the broadcast would be aware, the coalition has led the field in Australian politics in advancing the cause of whistleblower protection. In making these remarks I would particularly like to acknowledge Professor AJ Brown from Griffith University, who has consulted me frequently in relation to the development of this bill and who has played a distinguished role in this area of policy. I acknowledge the warm concurrence in my remarks of the minister, Senator Ludwig.

As I said, the coalition for many years has been the leader of the field in this area of policy. I remember going to the Right to Know conference organised in Sydney some years ago by John Hartigan, then the CEO of News Limited in Australia, and speaking on that occasion on this subject. I noticed there were no Greens representatives at the Right to Know conference, but, as in so many things, the Greens are very long on the rhetoric but very short on the performance when it comes to pursuing beneficial public policy reform.

The bill in the form presented to the chamber, and, ultimately, with the benefit of the considerations of the Senate Legal and Constitutional Committee, will create a legislative scheme for the investigation of alleged wrongdoing in the Commonwealth public sector. It will provide for protective mechanisms for current or former officials who make qualifying disclosures under the regime.

The question of the Commonwealth enactment of whistleblowers protection legislation has been agitated for several years. I think it is fair to say that this government has dragged its feet on the issue. The Labor Party announced its policy during the 2007 election campaign. In 2008 the House of Representatives Standing Committee on Legal and Constitutional Affairs, chaired by the present Attorney-General, Mr Dreyfus, was asked to examine whistleblower protection models and to report its findings. That report was delivered in January 2009. The government did not respond to the report until fully 14 months later, in March 2010, agreeing substantially with the committee's recommendations and undertaking to introduce a bill in the course of that year.

As we know, there was no bill in 2010, nor in 2011, nor in 2012. I look forward to the minister, in winding up the debate, explaining the extraordinary delay in bringing to the parliament on the 3rd last sitting day of the parliament legislation that was a commitment of the Rudd government in the 2007 election campaign, legislation which is substantially in the form of the report recommended by a parliamentary committee that reported as long ago as January 2009.

Senator Faulkner told the University of Melbourne Law School in December last year:

The Government broadly endorsed the findings of the Committee in 2010, however, no exposure draft of a Bill based on the Report's recommendations has yet been made public – over three years later. And here let me remind you that the Report's recommendations were generally regarded as sound in 2009, and they were generally consistent with the better whistleblower laws of most of Australia's States and Territories which have now been in effect for almost two decades.

So the criticism of the delay by the government in bringing this legislation to the chamber is not just criticism from the opposition but criticism by the Labor Party's senior senatorial statesman, if I may so describe him, Senator John Faulkner.

The bill has now been introduced for debate, as I said, in the final days of this parliament—much too late for the Rudd-Gillard government to have anything to fear from sunlight being shed upon the legislation by its proponents like Senator Faulkner or from the opposition. Operation Sunlight, you might recall, was the much vaunted policy that the Labor Party took to the 2007 election that was designed to promote transparency in the field of both whistleblower protection and freedom of information laws. It has produced this result: information is more restricted today than it was then and whistleblower protection has been delayed through the life of two entire parliaments. So much for heroic rhetoric dressed up in Orwellian phrases.

The objects of the bill are stated to be to promote the integrity and accountability of the Commonwealth public sector, to encourage and facilitate the making of public interest disclosures by public officials, to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures and to ensure that disclosures by public officials are properly investigated and dealt with. The regime operates by providing a framework for the protection of public officials, including former officials, from adverse consequences for disclosing information that in the public interest should be disclosed. It also provides for the investigation of matters that are so disclosed.

A public official for the purposes of the bill includes the secretary of a department, an APS employee or an employee of an executive agency; an individual, principle officer or member of the staff of a prescribed authority; a member of a prescribed authority other than a court; a director of a Commonwealth company; a member of the Defence Force; a parliamentary services employee; an individual employed by the Commonwealth other than an APS employee who performs duties for a department, executive agency or prescribed authority; a statutory office holder; and a contracted service provider for a Commonwealth contract where the services are provided principally for the benefit of an agency.

A public interest disclosure is a disclosure of information by a public official that is a disclosure within the government to an authorised internal recipient concerning suspected or probable illegal conduct or other wrongdoing; a disclosure to anybody if an internal disclosure has not been adequately dealt with and if wider disclosure satisfied public interest requirements; a disclosure to anybody if there is a substantial and imminent danger to health or safety; or a disclosure to an Australian legal practitioner for purposes connected with one of the other three bases of disclosure. However, there are also restrictions, which are designated publication restrictions, security classifications and when a disclosure is made to a foreign public official.

The central concept here, then, is what is disclosable conduct. Not all conduct is wrongdoing. Therefore, not all conduct ought to be disclosable. Conduct is only disclosable if it falls within the broad conception of wrongdoing within the public sector. Conduct is not disclosable conduct if it relates to political or expenditure matters with which a person disagrees such as the conduct of a judicial officer performing judicial functions or the conduct of intelligence agencies in the proper exercise of their functions and powers. These exclusions are proper and necessary and the coalition supports them.

I want to emphasise in particular clause 31 of the bill, which provides for the avoidance of doubt that conduct is not disclosable conduct if it relates only to a policy or a proposed policy of the Commonwealth government or action that has been, is being or is proposed to be taken by a minister or the Speaker of the House of Representatives or the President of the Senate or amounts, purposes or priorities of expenditure or proposed expenditure relating to such a policy or proposed policy or such action or proposed action with which a person disagrees.

The point of that is to make it clear that the purpose of this legislation is not to provide a platform for people to agitate political grievances or to provide a forum for people to use to tie up political or administrative decision making merely because they may disagree with the decision that has been made. The purpose of whistleblower protection legislation is and only is to protect whistleblowers who disclose wrongdoing. I am well aware of concerns held by some, particularly in the business community, that political activists may try to use the whistleblowers protection regime embodied in this legislation as a vehicle to collaterally attack political decision making for political purposes only. The legislation is so written that that is not possible. To abuse the process of the legislation, which evidently the Greens would encourage people to do, would itself be a wrongdoing. Whistleblower protection legislation is justified because it provides the opportunity to expose wrongdoing, not because it provides a platform to agitate political grievances.

Now, protection does not extend to the making of a statement that is false or misleading and also does not affect liability for the discloser's own wrongful conduct. The protective mechanisms include orders for restatement, compensation, apologies and injunctions. It will also be an offence to take reprisals against a person who has made protected disclosure. There is, for the reasons I indicated a moment ago, always the great risk of the vexatious or improper use of these mechanisms. And those who use them vexatiously, for purposes for which the legislation does not allow, should feel the full weight of the law upon them. The Ombudsman and the IGIS, in the case of the intelligence agencies, have additional functions to ensure the proper implementation of the scheme.

The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported earlier this month. Coalition senators joined with the majority recommendation that the bill be passed, subject to a number of amendments. Some 73 amendments were moved in the other place, and the coalition supports them. We think this is a tighter and more focused scheme in consequence of those amendments. In particular, the requirement for a review of the operation of the scheme within two years of its commencement is, in our view, a sensible amendment.

I wish to turn briefly to the amendments foreshadowed by the Greens and by Senator Xenophon. The coalition opposes the Greens amendments. A provision for an act-of-grace payment is unnecessary, because that is already provided for under section 33 in the Financial Management and Accountability Act 1997—something that no doubt escaped the attention of the Greens. The Greens amendments, which are seeking to narrow the exemption in relation to the intelligence sources, technologies and operations—reflecting the Greens's trademark paranoia about those who protect our country—also cannot be supported. The intelligence community is subject to its own special oversight regime through the Inspector General of Intelligence and Security—a fact that also has obviously escaped the Greens. As the committee heard, the inadvertent or inappropriate disclosure of intelligence information may compromise national security and potentially place lives at risk—conduct in which Mr Julian Assange, Senator Scott Ludlam's great friend, of course rejoices.

Australian intelligence agencies have obligations to our foreign partners to maintain confidentiality of information shared for the purpose of assisting those agencies to fulfil their national security functions. Mr Lambie has written in my script here that the Greens amendments failed to grasp those facts. I suspect the Greens grasped them all too well and are happy to see national security compromised in the pursuit of ideological whimsy. The coalition rejects the amendments proposing to extend the regime to members of parliament and their staff. This is an unacceptable incursion into parliamentary privilege and the role of the parliament itself. The appropriate institution for the supervision of members of parliament is the parliament itself. This is where the conduct of members and senators is exposed, reported and made accountable. If the Greens do not accept that parliament is up to the task, they should say so.

In relation to the amendments proposed by Senator Xenophon, I understand his concerns. However, the coalition does not agree that his amendments, while worthy, are properly located within this legislation. Rather, they should be considered when the matters that were recently the subject of the report of the Parliamentary Joint Committee on Intelligence and Security arise for consideration of the next parliament. With those observations, and in the proud Liberal tradition of championing open government and whistleblower protection, the opposition is pleased to support the bill.