Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the Public Interest Disclosure Bill 2013 and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

PUBLIC INTEREST DISCLOSURE BILL 2013

I am pleased today to introduce the Public Interest Disclosure Bill.

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 FOI 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 FOI decisions.

And that is why we are introducing legislation to establish a public interest disclosure scheme, and in doing so, 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 largely 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 timeframe. Thirdly the 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 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 a 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 otherwise n 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 APS 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 where 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 in 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 for 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 the whistleblower scheme would benefit from legislative amendment, I will be happy to bring them forward as 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 protections 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.

PUBLIC INTEREST DISCLOSURE (CONSEQUENTIAL AMENDMENTS) BILL 2013

I move that this bill be now read a second time.

I am pleased today to introduce the Public Interest Disclosure (Consequential Amendments) Bill 2013. This Bill will amend a number of Acts in support of the scheme in the Public Interest Disclosure Bill 2013, which I introduced into the House of Representatives on 21 March 2013.

The Public Interest Disclosure Bill is the first stand-alone whistleblower protection scheme at the federal level. It will establish a comprehensive scheme to support disclosure of wrongdoing in the Commonwealth public sector, and to make sure that reports of suspected wrongdoing are properly investigated and responded to. Public officials who report wrongdoing in accordance with the scheme will have robust protections so that they do not suffer adverse consequences for making a report.

The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security will have oversight functions for the public interest disclosure scheme. Amendments proposed in the Public Interest Disclosure (Consequential Amendments) Bill will support this oversight function. The Ombudsman will be able to investigate a public interest disclosure made to the Ombudsman where the wrongful conduct relates to an agency that is not an intelligence agency or the Inspector-General of Intelligence and Security. The Ombudsman will also be able to investigate handling by agencies of public interest disclosures.

The Inspector-General of Intelligence and Security will be able to investigate a public interest disclosure made to the Inspector-General of Intelligence and Security where the wrongful conduct relates to an intelligence agency. The Inspector-General of Intelligence and Security will also be able to inquire into the handling of public interest disclosures by intelligence agencies. The Ombudsman and the Inspector-General of Intelligence and Security will be able to undertake these investigations under their establishing legislation.

These investigative functions are complemented by other measures in the Public Interest Disclosure Bill. The Ombudsman will assist agencies and public officials on the operation of the scheme, including through the conduct of educational and awareness programs. It is very important that agencies and officials have a clear understanding of how the scheme works in order for it to operate effectively. The Inspector-General of Intelligence and Security will be able to assist intelligence agencies and public officials who belong to those agencies. The Ombudsman will be able to determine standards addressing procedures for dealing with public interest disclosure, the conduct of investigations and the preparation of reports. Agencies will also need to give the Ombudsman certain information about public interest disclosures which will be published in an annual report.

Consistent with the intention to create a single comprehensive scheme to promote inquiry and investigation into wrongdoing in the Commonwealth public sector, amendments proposed in this Bill will repeal existing provisions in the Public Service Act 1999 and the Parliamentary Service Act 1999 dealing with whistleblower protections.

The scheme will allow a public official to make a disclosure within their agency, to the Ombudsman, to the Inspector-General of Intelligence and Security, if the conduct relates to an intelligence agency, or to a prescribed investigative agency. Upon being prescribed, statutory office holders with investigative powers, such as the Public Service Commissioner, Merit Protection Commissioner and the Commissioner for Law Enforcement Integrity, will be able to conduct investigations where they have existing power to do so. The scheme will be flexible allowing for disclosures to be transferred to agencies that are best placed to investigate them.

Amendments in the Bill will preserve a function for the Public Service Commissioner and the Merit Protection Commissioner to inquire into public interest disclosures relating to alleged breaches of the Australian Public Service Code of Conduct. A similar amendment is proposed to preserve a function for the Parliamentary Service Commissioner and Parliamentary Service Merit Protection Commissioner to inquire into public interest disclosures relating to alleged breaches of the Parliamentary Service Code of Conduct.

I foreshadow that I intend to introduce Government amendments to the Public Interest Disclosure Bill shortly. I also welcome the report of the House of Representatives Standing Committee on Social Policy and Legal Affairs, following its inquiry into the Public Interest Disclosure Bill, which was tabled yesterday. I will be considering their report carefully.

This Bill, together with Public Interest Disclosure Bill, will serve to strengthen the integrity and accountability of the Australian government public sector.

I commend the Bill to the House.

Debate adjourned.