Mark Dreyfus (Isaacs, Australian Labor Party, Attorney-General) Share this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill and move amendments (1) to (73), as circulated, together:

  Commonwealth tribunal means:

  (a) a body established as a tribunal by or under a law of the Commonwealth; or

  (b) a statutory officeholder prescribed by the PID rules for the purposes of this paragraph.

(2) Clause 8, page 7 (lines 16 and 17), omit the definition of designated publication restriction, substitute:

  designated publication restriction means any of the following:

  (a) section 121 of the Family Law Act 1975;

  (b) section 91X of the Migration Act 1958;

  (c) section 110X of the Child Support (Registration and Collection) Act 1988;

  (d) a non-publication order (within the meaning of Part XAA of the Judiciary Act 1903) of any court;

  (e) a suppression order (within the meaning of Part XAA of the Judiciary Act 1903) of any court;

  (f) an order under section 31 or 38L of the National Security Information (Criminal and Civil Proceedings) Act 2004;

  (g) an order under section 28 of the Witness Protection Act 1994;

  (h) an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975;

  (i) a direction under section 35AA of the Administrative Appeals Tribunal Act 1975;

  (j) a direction under subsection 25A(9) of the Australian Crime Commission Act 2002;

  (k) section 29B of the Australian Crime Commission Act 2002;

  (l) a direction under section 90 of the Law Enforcement Integrity Commissioner Act 2006;

  (m) section 92 of the Law Enforcement Integrity Commissioner Act 2006.

(3) Clause 8, page 8 (lines 18 to 20), omit the definition of inadequate.

(4) Clause 8, page 9 (line 21), omit "tribunal", substitute "Commonwealth tribunal".

(5) Clause 8, page 10 (after line 19), after the definition of statutory officeholder, insert:

  supervisor, in relation to a person who makes a disclosure, is a public official who supervises or manages the person making the disclosure.

(6) Clause 11, page 12 (line 12), after "for", insert "knowingly".

(7) Page 12 (after line 16), after clause 11, insert:

11A Designated publication restrictions

     Section 10 does not apply to civil, criminal or administrative liability (including disciplinary action) for making a disclosure that contravenes a designated publication restriction if the person making the disclosure:

  (a) knows that the disclosure contravenes the designated publication restriction; and

  (b) does not have a reasonable excuse for that contravention.

(8) Clause 18, page 15 (line 22) to page 16 (line 10), omit the clause, substitute:

18 Costs only if proceedings instituted vexatiously etc.

(1) In proceedings (including an appeal) in a court in relation to a matter arising under section 14, 15 or 16, the applicant for an order under that section must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (2).

(2) The applicant may be ordered to pay the costs only if:

  (a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or

  (b) the court is satisfied that the applicant's unreasonable act or omission caused the other party to incur the costs.

(9) Clause 19, page 16 (line 15), omit the penalty, substitute:

Penalty:   Imprisonment for 2 years or 120 penalty units, or both.

(10) Clause 19, page 16 (line 29), omit the penalty, substitute:

Penalty:   Imprisonment for 2 years or 120 penalty units, or both.

(11) Page 17 (after line 4), at the end of Subdivision B, add:

19A Interaction between civil remedies and offences

     To avoid doubt, a person may bring proceedings under section 14, 15 or 16 in relation to the taking of a reprisal, or the threat to take a reprisal, even if a prosecution for an offence against section 19 in relation to the reprisal or threat has not been brought, or cannot be brought.

(12) Heading to Subdivision D, page 18 (line 28), omit the heading, substitute:

Subdivision D—Interaction with the Fair Work Act 2009

(13) Clause 22, page 19 (line 1), after "employee", insert "(within the meaning of that Part)".

(14) Page 19 (after line 5), after clause 22, insert:

22A Interaction with remedies under the Fair Work Act 2009

(1) A person is not entitled to make an application to the Federal Court or Federal Circuit Court for an order under section 14, 15 or 16 of this Act in relation to particular conduct if another application has been made:

  (a) under section 539 of the Fair Work Act 2009 in relation to a contravention of section 340 or 772 of that Act constituted by the same conduct; or

  (b) under section 394 of the Fair Work Act 2009 in relation to the same conduct.

(2) A person is not entitled to apply under:

  (a) section 539 of the Fair Work Act 2009 for an order in relation to a contravention of section 340 or 772 of that Act constituted by particular conduct; or

  (b) section 394 of the Fair Work Act 2009 for an order in relation to particular conduct;

if another application has been made for an order under section 14, 15 or 16 of this Act in relation to the same conduct.

(3) This section does not apply if the other application mentioned in subsection (1) or (2) has been discontinued or has failed for want of jurisdiction.

(15) Page 19 (before line 6), before clause 23, insert:

Subdivision E—Miscellaneous

(16) Clause 25, page 21 (line 8), after "recipient", insert "or a supervisor".

(17) Clause 25, page 21 (lines 17 and 18), omit "designated publication restrictions and".

(18) Clause 25, page 21 (lines 20 to 22), omit note 1, substitute:

Note 1: Disclosable conduct, authorised internal recipient and intelligence information are defined in Subdivisions B, C and D.

(19) Clause 26, page 22 (table item 1), omit the table item, substitute:

(20) Clause 26, page 22 (paragraph (a) of the cell at table item 2, column 3), omit the paragraph, substitute:

(21) Clause 26, pages 22 and 23 (paragraphs (c) and (d) of the cell at table item 2, column 3), omit the paragraphs, substitute:

(22) Clause 26, page 23 (paragraph (f) of the cell at table item 2, column 3), omit "in the public interest", substitute "to identify one or more instances of disclosable conduct".

(23) Clause 26, page 23 (paragraph (g) of the cell at table item 2, column 3), omit the paragraph.

(24) Clause 26, page 24 (paragraph (e) of the cell at table item 3, column 3), omit the paragraph.

(25) Clause 26, page 24 (after line 3), after subclause (2), insert:

  (2A) A response to a disclosure investigation is taken, for the purposes of item 2 of the table in subsection (1), not to be inadequate to the extent that the response involves action that has been, is being, or is to be taken by:

  (a) a Minister; or

  (b) the Speaker of the House of Representatives; or

  (c) the President of the Senate.

(26) Clause 26, page 24 (after line 6), before paragraph (3)(a), insert:

  (aa) whether the disclosure would promote the integrity and accountability of the Commonwealth public sector;

  (ab) the extent to which the disclosure would expose a failure to address serious wrongdoing in the Commonwealth public sector;

  (ac) the extent to which it would assist in protecting the discloser from adverse consequences relating to the disclosure if the disclosure were a public interest disclosure;

  (ad) the principle that disclosures by public officials should be properly investigated and dealt with;

  (ae) the nature and seriousness of the disclosable conduct;

(27) Heading to clause 32, page 29 (line 20), omit "tribunals", substitute "Commonwealth tribunals".

(28) Clause 32, page 29 (line 30) to page 30 (line 3), omit paragraph (1)(c), substitute:

  (c) conduct of:

     (i) a member of a Commonwealth tribunal; or

     (ii) the chief executive officer of a Commonwealth tribunal; or

     (iii) a member of the staff of the chief executive officer of a Commonwealth tribunal;

     when exercising a power of the Commonwealth tribunal; or

(29) Clause 32, page 30 (line 4), omit "tribunal", substitute "Commonwealth tribunal".

(30) Clause 32, page 30 (lines 14 to 27), omit subclause (3), substitute:

(3) Member of the staff of the chief executive officer of a court or Commonwealth tribunal means:

  (a) an officer of the court or Commonwealth tribunal (other than the chief executive officer); or

  (b) a member of the staff of the registry or registries of the court or Commonwealth tribunal; or

  (c) an officer or employee of an agency whose services are made available to the court or Commonwealth tribunal; or

  (d) a person prescribed by the PID rules to be a member of the staff of the court or Commonwealth tribunal for the purposes of this Act.

Note: For declaration by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(4) For the purposes of subsection (3):

  (a) a judicial officer of a court is not taken to be an officer of the court; and

  (b) a member of a Commonwealth tribunal is not taken to be an officer of the tribunal; and

  (c) if a statutory officeholder is a Commonwealth tribunal—the statutory officeholder is not taken to be an officer of the tribunal.

(31) Clause 34, page 32 (line 1), omit the note, substitute:

Note 1: For authorised officer, see section 36.

Note 2: A discloser may also disclose information to his or her supervisor (who is then obliged under section 60A to give the information to an authorised officer).

(32) Subdivision D, clauses 37 to 39, page 33 (line 13) to page 34 (line 32), omit the Subdivision.

(33) Heading to Subdivision E, page 35 (line 1), omit the heading, substitute:

Subdivision D—Intelligence information

(34) Clause 40, page 35 (lines 2 to 25), omit the clause.

(35) Clause 42, page 38 (line 5), after "an agency", insert "(either directly by the discloser or through a supervisor of the discloser)".

(36) Clause 42, page 38 (lines 8 to 10), omit the note, substitute:

Note 1: In order for a disclosure to be an internal disclosure (one of the types of public interest disclosure), the disclosure must be made to an authorised officer or a supervisor.

Note 2: The way a disclosure is allocated (or a refusal to allocate a disclosure) may be the subject of a complaint to the Ombudsman under the Ombudsman Act 1976, or (in the case of an intelligence agency) to the IGIS under the Inspector-General of Intelligence and Security Act 1986.

(37) Clause 43, page 38 (lines 12 to 17), omit subclause (1), substitute:

(1) If a person (the discloser) discloses information:

  (a) to an authorised officer of an agency (the recipient agency); or

  (b) to a supervisor of the discloser who then gives the information to the authorised officer;

the authorised officer must allocate the handling of the disclosure to one or more agencies (which may be or include the recipient agency).

Note 1: For the assistance that authorised officers must give to disclosers, see section 60.

Note 2: For the obligation of supervisors to give information to authorised officers, see section 60A.

(38) Clause 44, page 39 (line 28), after "authorised officer", insert ", and the discloser consents to the principal officer being informed".

(39) Clause 44, page 39 (after line 28), after subclause (1), insert:

  (1A) The authorised officer must also inform:

  (a) if the disclosure is allocated to an agency that is not the Ombudsman, the IGIS or an intelligence agency—the Ombudsman; or

  (b) if the disclosure is allocated to an intelligence agency—the IGIS;

of the matters of which the principal officer of the agency must be informed under subsection (1).

(40) Clause 44, page 39 (lines 29 and 30), omit "if the discloser is readily contactable".

(41) Clause 44, page 39 (lines 32 and 33), omit ", if the discloser is readily contactable,".

(42) Clause 44, page 40 (after line 4), at the end of the clause, add:

(4) Subsection (2) or (3) does not apply if contacting the discloser is not reasonably practicable.

(43) Clause 46, page 41 (after line 10), at the end of the clause, add:

Note: The way a disclosure is investigated (or a refusal to investigate a disclosure) may be the subject of a complaint to the Ombudsman under the Ombudsman Act 1976, or (in the case of an intelligence agency) to the IGIS under the Inspector-General of Intelligence and Security Act 1986.

(44) Clause 48, page 42 (lines 6 and 7), omit paragraph (1)(b).

(45) Clause 48, page 42 (lines 10 and 11), omit paragraph (1)(d), substitute:

  (d) the disclosure is frivolous or vexatious; or

(46) Clause 48, page 42 (lines 36 and 37), omit subparagraph (1)(i)(i), substitute:

     (i) because the discloser's name and contact details have not been disclosed; or

(47) Clause 49, page 43 (line 34), omit "if the discloser is readily contactable—".

(48) Clause 49, page 44 (after line 1), at the end of the clause, add:

(4) Paragraph (3)(b) does not apply if contacting the discloser is not reasonably practicable.

(49) Clause 50, page 44 (line 3), omit "If the discloser is readily contactable, the", substitute "The".

(50) Clause 50, page 44 (line 4), after "must", insert ", as soon as reasonably practicable,".

(51) Clause 50, page 44 (after line 10), after subclause (1), insert:

  (1A) If paragraph (1)(a) applies, the principal officer must inform the discloser of the estimated length of the investigation.

(52) Clause 50, page 44 (after line 26), at the end of the clause, add:

(5) This section does not apply if contacting the discloser is not reasonably practicable.

(53) Page 44 (after line 26), after clause 50, insert:

50A Notification to Ombudsman or IGIS of decision not to investigate

(1) If:

  (a) the principal officer of the agency has decided under section 48 or 49 not to investigate the disclosure under this Division, or not to investigate the disclosure further; and

  (b) the agency is not the Ombudsman, the IGIS or an intelligence agency;

the principal officer must inform the Ombudsman of the decision, and of the reasons for the decision.

(2) If:

  (a) the principal officer of the agency has decided under section 48 or 49 not to investigate the disclosure under this Division, or not to investigate the disclosure further; and

  (b) the agency is an intelligence agency;

the principal officer must inform the IGIS of the decision, and of the reasons for the decision.

(54) Clause 51, page 45 (line 15), omit "If the discloser is readily contactable, the", substitute "The".

(55) Clause 51, page 45 (line 29), at the end of paragraph (5)(b), add:

     ; or (iv) contravene a designated publication restriction.

(56) Clause 51, page 45 (after line 29), at the end of the clause, add:

(6) Subsection (4) does not apply if contacting the discloser is not reasonably practicable.

(57) Clause 52, page 46 (lines 19 to 22), omit subclause (5), substitute:

(5) If the 90-day period is extended, or further extended:

  (a) the Ombudsman or the IGIS, as the case may be, must inform the discloser of the extension or further extension, and of the reasons for the extension or further extension; and

  (b) the principal officer of the agency must, as soon as reasonably practicable after the extension or further extension, inform the discloser of the progress of the investigation.

  (5A) Subsection (5) does not apply if contacting the discloser is not reasonably practicable.

(58) Clause 55, page 48 (lines 1 to 6), omit the clause.

(59) Clause 57, page 50 (line 3), omit "section 40", substitute "section 8".

(60) Clause 58, page 51 (line 6), after "authorised officers", insert ", supervisors".

(61) Clause 58, page 51 (after line 8), at the end of the clause, add:

Note: The way the additional obligations are complied with (or non-compliance with the additional obligations) may be the subject of a complaint to the Ombudsman under the Ombudsman Act 1976, or (in the case of an intelligence agency) to the IGIS under the Inspector-General of Intelligence and Security Act 1986.

(62) Page 52 (after line 21), after clause 60, insert:

60A Additional obligations of supervisors

     If:

  (a) a public official discloses information to a supervisor of the public official; and

  (b) the supervisor has reasonable grounds to believe that the information concerns, or could concern, one or more instances of disclosable conduct; and

  (c) the supervisor is not an authorised officer of the agency to which the supervisor belongs;

the supervisor must, as soon as reasonably practicable, give the information to an authorised officer of the agency.

(63) Clause 65, page 55 (lines 19 and 20), omit "or another law of the Commonwealth".

(64) Clause 65, page 55 (lines 23 and 24), omit "or another law of the Commonwealth".

(65) Clause 65, page 55 (line 25) to page 56 (line 5), omit paragraphs (2)(c) and (d), substitute:

  (c) the disclosure or use is for the purposes of, or in connection with, taking action in response to a disclosure investigation; or

(66) Clause 65, page 56 (lines 21 to 23), omit subclause (4).

(67) Clause 70, page 64 (after line 7), after subclause (3), insert:

  (3A) This section does not apply if the individual is a judicial officer or is a member of a Royal Commission.

(68) Clause 73, page 67 (line 16), omit "tribunal", substitute "Commonwealth tribunal".

(69) Clause 75, page 69 (line 5), omit "section 40", substitute "section 8".

(70) Clause 78, page 71 (lines 9 to 17), omit subclause (1), substitute:

(1) A person who is:

  (a) the principal officer of an agency or a delegate of the principal officer; or

  (b) an authorised officer of an agency; or

  (c) a supervisor of a person who makes a disclosure;

is not liable to any criminal or civil proceedings, or any disciplinary action (including any action that involves imposing any detriment), for or in relation to an act or matter done, or omitted to be done, in good faith:

  (d) in the performance, or purported performance, of any function conferred on the person by this Act; or

  (e) in the exercise, or purported exercise, of any power conferred on the person by this Act.

(71) Clause 78, page 71 (line 20), omit "section 40", substitute "section 8".

(72) Clause 81, page 72 (lines 8 to 17), omit the clause.

(73) Page 72 (after line 24), after clause 82, insert:

82A Review of operation of Act

(1) The Minister must cause a review of the operation of this Act to be undertaken.

(2) The review must:

  (a) start 2 years after the commencement of this section; and

  (b) be completed within 6 months.

(3) The Minister must cause a written report about the review to be prepared.

(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

The government amendments to the Public Interest Disclosure Bill will improve the operation of the bill and clarify certain provisions. Proposed amendments will implement substantially the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee as well as a number of suggestions arising from submissions made to the House of Representatives Standing Committee on Social Policy and Legal Affairs and to the Senate Standing Committee on Legal and Constitutional Affairs.

A number of amendments are proposed that will change the requirements to qualify for a protected public interest disclosure. These amendments serve to simplify and clarify some of these requirements and to implement recommendations 2, 3 and 7 of the Senate committee report.

These include amendment (21), which will change the criteria for establishing when an investigation or report is taken to be inadequate for the purpose of qualifying for a protected 'external' disclosure. Concerns were raised that the criteria in clauses 37 to 39 would be difficult to apply and should be based on a subjective assessment by the discloser. Amendment (21) will have the effect that inadequacy will be met if a discloser believes on reasonable grounds that the part 3 investigation was inadequate, or a response to an investigation was inadequate, or if a part 3 investigation has not been completed within the required time limit. Only one of these grounds would need to be established to meet the inadequacy requirement for an 'external' disclosure.

To give balance to the list of factors that must be taken into account for the purposes of the public interest test for an 'external' disclosure, further factors will be added to the list in subclause 26(3). These include factors favouring disclosure and reflected in the objects of the bill. The existing listed factors weighing against public disclosure of information align with exemptions in the Freedom of Information Act and will be retained.

Amendments (19) and (20) would amend the criteria to qualify for a protected 'internal' or 'external' disclosure so that a disclosure could qualify for protection where the information tends to show disclosable conduct as well as where the discloser believes on reasonable grounds that the information tends to show disclosable conduct. It will no longer be a requirement to qualify for a protected 'internal', 'external' or 'emergency' disclosure that the disclosure not be contrary to a 'designated publication restriction'. However, it remains important that the protection framework in the bill does not undermine the policy supporting confidentiality of non-publication orders and directions of the kind identified as 'designated publication restrictions' in the bill.

The approach in the amendments is that a discloser will lose the immunity protections in clause 10 of the bill where the discloser knows that the disclosure contravenes a designated publication restriction and does not have a reasonable excuse for that contravention.

Making a report of wrongdoing in the workplace can take courage. Public officials need confidence that they will not be exposed to detriment in any way as a consequence of raising concerns about wrongdoing. A number of amendments will further strengthen the protections in the bill for public officials who make qualifying disclosures. Amendment (6) corrects an omission so that the immunity protections given in clause 10 of the bill would only be lost if the discloser knowingly makes a false or misleading statement. This change implements recommendation 4 of the Senate committee report. The penalty for the offences of taking a reprisal or threatening to take a reprisal against a person who has made a disclosure will be increased to two years imprisonment or 120 penalty units or both.

Instituting proceedings in a court for redress for alleged detriment as a result of making a public interest disclosure is a decision that most people would not take lightly. Amendment (8) will serve to ameliorate reservations a public official may have to bringing proceedings under the bill arising from exposure to pay a defending party's costs. Under this amendment, a current or former public official who brings an action in the Federal Court or Federal Circuit Court for a remedy under the bill could not be ordered to pay the defending party's costs unless the court is satisfied they instituted the proceedings vexatiously or acted unreasonably to cause the other party to incur costs. A court could exercise its ordinary jurisdiction to award costs against a defending agency party. Some amendments will serve to enhance the oversight roles for the ombudsman and the Inspector-General of Intelligence and Security.

Authorised officers in agencies will be required to give the ombudsman and the inspector-general certain details about a disclosure at the time a decision is made on how the agency or agencies will handle the disclosure. This obligation supplements an existing requirement for agencies to give information to the ombudsman about public interest disclosures at the end of each financial year, and that would be used to inform the ombudsman's annual report on the operation of the act.

As the bill now stands, to qualify for a protected internal disclosure a public official must make the disclosure to an authorised officer within the agency. Amendment (19) and related amendments will implement recommendation 1 of the Senate committee's report so that a public official can also make a public interest disclosure to a person who is their supervisor or manager. To complement that amendment, a supervisor would be required to give the information they have received to an authorised officer in their agency where the supervisor has reasonable grounds to believe that the information tends to show disclosable conduct.

The Senate committee suggested that disclosure to a supervisor includes people who are in an indirect supervisory or management relationship. This approach has not been adopted. The concept of a person who indirectly supervises someone in the Commonwealth public sector is potentially very broad. As a supervisor will have an obligation to refer suspected disclosable conduct to an authorised officer, this measure is not intended to apply to a person who would not ordinarily be considered an official's supervisor.

It remains an obligation under the bill for a principal officer to ensure there are a sufficient number of readily accessible authorised officers in an agency and to ensure that public officials are aware of the identity of each authorised officer in their agency. An official who does not want to make a disclosure to their supervisor could make a disclosure to an authorised officer.

Amendment (72) will implement recommendation 5 of the Senate committee report by omitting clause 81 from this bill. Amendment (73) will implement recommendation 6 of the Senate committee report that a review of the operation of the act be undertaken two years after it has commenced. This review will provide a good opportunity for the procedures in the act to be examined, as well as for consideration to be given to widening its application including to members of parliament and to staff.

I commend the amendments to the House.

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