Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I want to echo the Deputy Chair of the House of Representatives Standing Committee on Legal and Constitutional Affairs in thanking the committee secretariat, particularly Dr Anna Dacre, Dr Mark Rodrigues, Mr Michael Buss, Ms Melita Caulfield and Ms Claire Young, for the wonderful work they do. They make us look good. They do superb work. They are fantastic in the work they do. The research they undertake and the drafting they do is expert, and they are across the issues. I want to pay tribute also to Dr AJ Brown, who heads the ‘Whistling while they work: enhancing the theory and practice of internal witness management in public sector organisations’ team. This is a group of eminent academics and professors who have worked extensively to find out just what evidence there is in relation to whistleblowing and to provide empirical data which will help governments to form a better understanding and better legislation when it comes to public interest disclosure.

Dr AJ Brown found that the typical view of a whistleblower is not correct. In fact, whistleblowers are likely to be women and to have a very positive attitude towards corporate citizenship, but they are less likely to have a positive view of the managerial oversight of their respective government departments. Dr Brown also found that the media is the ninth recipient of public interest disclosures. So the idea that whistleblowers go straight to the media is not correct. There is also evidence that only 20 per cent of whistleblowers end up being treated adversely in the workplace by their peers or by their superiors, which again is not what the community would normally think in the circumstances.

The real reason we need to have a public interest disclosure bill introduced as soon as possible is that there is a deficiency when it comes to the Public Service and those people who contract to the Commonwealth or volunteer for Commonwealth government activity. Only about two-thirds of Commonwealth public sector employees in the Australian Public Service are covered by APS whistleblower provisions. Of course, employees who work for those agencies which are governed by the Commonwealth Authorities and Companies Act 1997 are specifically included. They include employees of the ANU, the ABC and a variety of other corporate governmental agencies. So public interest disclosures are very important to deal with from the point of view of a model piece of legislation and a national approach.

We are not talking about internal grievances and internal management disputes. We are really talking about serious disclosures: evidence of illegal activity, corruption, maladministration, dangers to public safety, dangers to the environment, official misconduct and scientific misconduct—serious matters which adversely affect the public interest. The committee recommended that those types of disclosures be protected and recommended the expansion in the categories of people who make those disclosures to encompass Commonwealth agencies and insider knowledge. For example, those people who are deemed to be public officials for the purpose of the legislation would also be covered, as well as volunteers. So there is breadth in the coverage. With respect to the way this is dealt with, there is a staged approach. The first port of call for a whistleblower is to deal with their matter internally with their superiors. Then they go to an external agency, and finally there is the safety valve of the media if it is absolutely necessary.

There was discussion and submission about which particular body or bodies should be involved in the oversight of whistleblowing legislation. The committee believed—and I agree; it was a unanimous decision—that the Commonwealth Ombudsman has the oversight and the integrity agency requirements to do these sorts of tasks. The Australian Public Service Commissioner and the Commonwealth Ombudsman gave evidence in relation to the additional costs involved in this process. They gave evidence that it would cost an additional $1.5 million initially and recommended that a deputy be appointed for this purpose in the various agencies. They also said that after two or three years the cost would be about $1 million to the Commonwealth with six to seven employees. I concur with the committee’s decision that the Commonwealth Ombudsman has the appropriate skills, expertise and experience to handle these really difficult, sensitive and serious matters. The research shows that that is the case. The evidence before the committee shows that this should be the avenue that people take if internal matters have not been dealt with properly.

There is a subjective test that the committee recommends with respect to whistleblowing. The whistleblower must have an honest and reasonable belief on the information available to them that the matter concerns disclosable conduct. The committee rejected the objective test, which was that the disclosure showed or tended to show wrongdoing. We thought that would not lead towards good public policy and that there would be people who would be dissuaded from coming forward with disclosures. We are not about protecting false allegations or reckless disclosures but we are about good public policy. The committee appropriately rejected the idea of a qui tam provision in the public interest disclosure legislation. The idea of pecuniary profit or incentivisation for a disclosure to be made is simply anathema to me, and I certainly agree with the committee’s recommendation that we should look at the public good and a more communitarian approach to public disclosure. We should look at an approach that does not follow the American system in these circumstances.

I conclude by saying that we have taken note of what the Inspector-General of Intelligence and Security has said in relation to the matter. We have specifically excluded a number of intelligence agencies, such as ASIO, ASIS and the ONA, from this public interest disclosure legislation in our recommendations. I urge the government to act upon this and act quickly. We would have liked to see this happen under the previous government’s regime but we urge the government to take note of these recommendations, which in our view will help to overcome what I would describe as the governmental vices of secrecy, victimisation, inflexibility and buck-passing and will promote what I would describe as the governmental virtues of openness, transparency, flexibility and accountability. I am very pleased to be a member of the committee, and I thank all those people who participated. I particularly want to recognise the admirable qualities of the chairperson, the member for Isaacs, who did the job exceptionally well.

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