Thursday, 15 June 2023
Public Interest Disclosure Amendment (Review) Bill 2022; In Committee
The committee is considering the Public Interest Disclosure Amendment (Review) Bill 2022 and amendments (1) to (3) on sheet ZB203, together, moved by Minister Watt. The question is that the amendments be agreed to. Are there any further contributions to those amendments? There been none, I put the question.
Question agreed to.
I seek leave to move Greens amendments (1) and (11) on sheet 1870 together.
The TEMPORARY CHAIR: You're seeking leave to move (1) and (11) together as opposed to moving (1) to (14) as a block?
Correct. Just for the convenience of the chamber, I will be moving them in three tranches. The first will be amendments (1) and (11), subject to leave. The second tranche, which relate to the meaning of public interest disclosure, will be amendment (2) and the other consequential amendments to that, which are (3), (6), (7), (8), (9), (10), (12), (13) and (14). Then, the third tranche will be amendments (4) and (5), which both relate to parliamentary stuff.
The TEMPORARY CHAIR: Leave has been sought to move amendments (1) and (11) on sheet 1870 together. It there any objection?
Leave is granted.
These amendments go to the meaning of public interest disclosure. They specify that when a person has genuinely attempted to comply with the requirements of the PID Act, but has nonetheless failed to comply with all further requirement in column 3 of the act, the court may also take into account if the disclosure is otherwise reasonable and in the public interest, having regard to all the circumstances. We believe this is a reasonable compromise to ensure the act is able to cover matters where a PID has been attempted to be made correctly and in good faith, the information should have been disclosed in the circumstances and the disclosure is reasonable and in the public interest. Those disclosures should have the public interest protections.
Two recent cases, those of David McBride and Richard Boyle, highlight the need for this reform. In both cases bona fide whistleblowers attempted to gain the protections of the PID Act. They made what they thought were PID Act disclosures. They stepped through the quite technical elements of the PID Act, including with legal assistance. But in both cases the courts have denied them protection under the PID Act, because of what can only be described as legal technicalities. As a result of this, both David McBride and Richard Boyle are exposed to serious criminal prosecutions.
In short, what these amendments seek to do is to say that, where you a public interest whistleblower who has had a bona fide engagement with the PID Act and sought to step through the technical requirements of the PID Act for the disclosure, but, in circumstances where there has been some technical legal misstep by them, they should also have the protection of the PID Act.
The McBride case, which is currently on appeal, would have to be the clearest demonstration of why we need this PID Act protection. A public interest whistleblower blew the whistle on what I think we all now agree is compelling and deeply, deeply distressing evidence of Australian Defence personnel engaged in war crimes in Afghanistan. Some of the evidence that Mr McBride put into the public arena has now been tested in the Federal Court and has been found to be compelling to make findings on the civil standard that those unlawful murders did occur.
What I find appalling is that the person currently in court who faces the most imminent risk of going to jail for those appalling circumstances is the whistleblower, David McBride. David McBride tried time after time to raise it within Defence. He was a serving member of the Defence Force. If anyone is deserving of a medal and a plaque and a place in the Australian War Memorial, it is David McBride, the brave whistleblower who put his career—and, as it turns out, his personal freedom—on the line to tell the truth about war crimes in Afghanistan. David McBride tried time after time to have it raised within the chain of command in the Australian Defence Force, and it was squashed. It wouldn't go anywhere.
After enormous frustration within that process, he then began to step through, as best he could, the public interest disclosure steps. Remarkably, a court—with encouragement from the legal representatives of the Commonwealth—found that David McBride's steps of gathering the evidence to make a compelling PID Act disclosure were not protected by the PID Act. Gathering the evidence to make a compelling disclosure is not, apparently, according to the current state of the law, covered by the PID Act. As a result, David McBride, who thought he had whistleblower protections, is utterly exposed and faces a series of criminal charges and years and years, potentially, in jail for blowing the whistle on war crimes.
What these amendments seek to do is to say that, if those actions of a whistleblower were in good faith, were in the public interest and were seeking to comply with the PID Act, even if there is a legal technicality, the court has discretion to extend the defences of the PID Act to protect the whistleblower. That's what these amendments do. For this government to not support them is to send a message to whistleblowers that they want to hang the next set of whistleblowers out to dry just like they've done to David McBride. Not supporting these amendments would be saying that you're happy to send a message to future whistleblowers that, if they make one tiny legal misstep, you're going to hang them out to dry, criminally prosecute them and try and put them in jail. I commend the amendments to the chamber.
The government does not support these amendments. The government supports effective and accessible protections for whistleblowers, including the ability to make external disclosures in appropriate circumstances. This includes providing an effective pathway for disclosures to the media and others outside of government, and that's of course the intent of the bill overall. The proposed amendments give rise to a range of complex policy issues that require careful consideration and would be appropriately dealt with as part of the comprehensive second stage of PID reforms. We'd be happy to engage with Senator Shoebridge as part of that work.
The opposition will also not be supporting the amendments. The amendments would massively expand the types of disclosures covered by the PID Act. In addition to the current criteria, any disclosure that is otherwise reasonable and in the public interest, having regard to all the circumstances, would be covered by the external disclosure and emergency disclosure definitions of the PID Act.
The potential impact on our national security arrangements and far-reaching unintended consequences would be staggering. These amendments could potentially permit disclosures and trigger whistleblower protections relating to intelligence information. They would not require any attempted internal disclosure as a first port of call, contrary to the scheme of the PID Act as a whole, and they may be operationally unworkable. For instance, who would decide whether a disclosure is reasonable and in the public interest? In practice, how would that decision be made when a person is considering whether to make a disclosure, and what would be the consequences if the whistleblower acts in good faith but is later wrong? The changes would permit disclosure to union representatives, who are not the subject of the same fiduciary obligations as lawyers and some of whom treat law-breaking as a cost of doing business. These changes, we believe, are dangerous to our system of national security, and they have not been recommended by the PJCIS, the Moss review or any serious body in this space.
I think Senator Cash has got ahead of herself in terms of dealing with some amendments, but we can address those later. The question of whether or not a disclosure had been in the public interest will be decided by a superior court of record. That's who will make these decisions—a member of the judiciary. The Greens have faith in the ability of our judiciary to weigh up the considerations and make a decision as to whether or not a disclosure is in the public interest. The argument that this would create a 'staggering' extension of the PID Act, I think, misunderstands the narrow cast of the proposed amendment in 50A, which relates to the requirements set out in column 3. It's not a complete expungement of all the requirements under the PID Act—only of those that are set out in column 3 and only in circumstances where the disclosure was in good faith and where there had been that attempt to meet the legal requirements.
I understand the response that we got from the opposition that this would have national security implications, but what I would suggest is this: preventing people from telling the truth about war crimes has far greater national security implications. Preventing people from telling the truth about gross missteps by our defence forces or our national security apparatus or the parliament has far greater national security consequences. And if there is an aversion within our national security apparatus to truth-telling, well, that's an aversion that I think the national security apparatus should be taken to task for.
And of course if we want to see the most extreme case of a national security apparatus viciously fighting against truth-telling, we can look at what our purported closest ally is doing in trying to jail, for the rest of his natural life, an Australian citizen, Julian Assange. That's where the coalition's arguments end up, that kind of brutal state security apparatus action against a whistleblower—wanting to put them in jail for life or telling some ugly truths about how power is exercised by our government or one of our allies' governments. We commend the amendments to the chamber.
by leave—I move Greens amendments (2), (3), (6) to (10) and (12) to (14) on sheet 1870 revised:
(2) Schedule 1, page 30 (before line 21), before item 51, insert:
50B Subsection 26(1) (table item 4, column 1)
Omit "Legal practitioner", substitute "Professional assistance".
50C Subsection 26(1) (cell at table item 4, column 2)
Repeal the cell, substitute:
(3) Schedule 1, item 63, page 36 (line 9), omit "legal practitioner", substitute "professional assistance".
(6) Schedule 2, item 3, page 51 (line 2), omit "legal practitioner", substitute "professional assistance".
(7) Schedule 2, item 3, page 52 (line 31), omit "legal practitioner", substitute "professional assistance".
(8) Schedule 2, item 6, page 53 (line 23), omit "legal practitioner", substitute "professional assistance".
(9) Schedule 2, item 6, page 53 (after line 24), after the definition of legal practitioner disclosure in section 8, insert:
union has the same meaning as in the Workplace Health and Safety Act 2011.
(10) Schedule 2, page 53 (after line 28), after item 8, insert:
8A Section 25
(12) Schedule 2, page 54 (after line 21), after item 16, insert:
16A Section 67 (heading)
Omit "legal practitioners", substitute "professional assistance".
(13) Schedule 2, item 17, page 55 (lines 1 to 4), omit the item, substitute:
17 Paragraph 67(1)(a)
Omit "public interest disclosure covered by item 4 of the table in subsection 26(1) (a legal practitioner disclosure)", substitute "professional assistance disclosure".
17A Paragraph 67(2)(a)
Omit "legal practitioner" (wherever occurring), substitute "professional assistance".
(14) Schedule 4, item 8, page 66 (lines 12 to 15), omit the item, substitute:
8 Section 7 (paragraph beginning "The protec tion provisions")
Omit "or professional assistance", substitute ", professional assistance or NACC disclosure".
One of the core recommendations of the Moss review was to expand the category of people to whom whistleblowers can go to seek professional assistance, to expand it unambiguously to the legal profession and appropriate legal advice and also to empower whistleblowers to make their disclosures appropriately and with the appropriate advice to comply with the PID Act and any other requirements. These amendments seek to expand the category of persons to whom whistleblowers can go to for professional assistance from not just lawyers, and in some cases government approved lawyers, to Australian legal practitioners or their relevant union representative.
As we know, many public servants who are members of the CPSU or another union go to their union to seek advice on how they can step through a really hard workplace issue. You can't think of a harder workplace issue in many instances than trying to work out how to do a PID Act disclosure properly. The Greens firmly believe that appropriately skilled union officials should be available to whistleblowers to help them step through the complexity of making a PID Act disclosure.
We should remember as well that union officials often also have an understanding of how the animal works, how the agency works, what the power structures are within the agency and what the likely consequences and, altogether too likely, adverse consequences are for somebody when they make a disclosure. Being monstered by the HR department and being excluded at the next meeting—all those adverse consequences—so often happen to whistleblowers and are intimately tied to their making of a PID Act disclosure. Of course whistleblowers should be able to go to their union representative and seek assistance in pulling together the PID Act disclosure and also in meeting the sometimes quite nasty, targeted management actions against them once they've made the disclosure.
This is consistent with the Moss report. I would have thought that this is consistent with any party that believes that unions have a very valid and important role in supporting their members when they're in a dispute with the government of the day, with their employer. It is for those reasons I've moved these amendments.
The government will be opposing these amendments. The government believes it is important that whistleblowers can access all necessary forms of support throughout the disclosure process; however, the government does not support these amendments at this point in time. Further consideration is needed to determine how disclosures to union representatives, among other forms of professional assistance, can be appropriately provided for in the act. The government has committed to considering the outstanding recommendations of the Moss review, including improved access to professional assistance, as part of the second stage of broader reforms. We will ensure that this issue is considered closely as part of those broader reforms. Again, I'm happy to work with Senator Shoebridge in that further work.
by leave—I move Greens amendments (4) and (5) on sheet 1870 revised together:
(4) Schedule 1, item 88, page 47 (line 20), omit "Parliament;", substitute "Parliament.".
(5) Schedule 1, item 88, page 47 (lines 21 and 22), omit paragraph 69(4)(d).
These amendments aim to remove the exemption for MOP—members of parliament—staff for access to the PID Act, the Public Interest Disclosure Act. As I understand it, the opposition that may come to these provisions is that there are potentially other ways in which members of parliament staff can raise their concerns and that there are ongoing steps to provide other protections for MOP staff. But let's be clear: the Greens are moving here a recommendation of the House of Reps committee in 2009—so 14 years ago. The House of Reps committee said members of parliament staff should have access to public interest disclosures. Nothing happened. It was also a recommendation of the Set the standard report, which said that parliamentary staff employed under the MOP(S) Act should be included as public officials in section 69 of the PID Act—and that hasn't been implemented. And it is also a recommendation of the Moss review.
How many times do we have to be told that we should be providing this accessway to members of staff in this place? How many times have we been told that giving access to the PID Act to members of staff is an important integrity measure? If there is an argument that there are potentially other avenues that MOP staff can take, then fine; let there be other avenues. But why wouldn't we provide as many ways as possible for MOP(S) Act staff to make a disclosure and have the protections they need to feel safe? That's what the PID Act does; it allows people who work for the government to make a disclosure in the public interest and do it in a way that they feel safe. That's why we're moving these amendments, and that's why we'd hoped to get support from the rest of the chamber.
The government does not support the amendments. The government supports effective and accessible protections for whistleblowers, including appropriate protections for persons who disclose wrongdoing, including MOP(S) Act staff. The government understands the intention of these amendments is to apply the Public Interest Disclosure Act to MOP(S) Act staff. However, this amendment would not achieve this outcome as the Public Interest Disclosure Act as drafted is not set up to deal with disclosures about or by MOP(S) Act staff. The proposed amendments give rise to a range of complex policy issues that would be appropriately dealt with in the context of implementing relevant recommendations in the Set the standard report or as part of a comprehensive second stage of PID reforms.