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

The government does not support this set of amendments and, in fact, has moved an amendment similar to amendment (16), which would establish in the bill a requirement for the minister to undertake a review of the operation of the bill two years after it has commenced.

The government does not support the act-of-grace amendment—amendment (1). That would authorise a minister to make payments to a person who has made a public interest disclosure where public moneys are reclaimed or where it is in the public interest. The emphasis of the scheme in this bill is on disclosures of wrongdoing being reported to and investigated within government.

This bill focuses on removing disincentives to making public interest disclosure by affording robust protections to public officials who come forward to report wrongdoing. I note that the whistleblower protection report tabled by the House of Representatives Standing Committee on Legal and Constitutional Affairs, which has very much informed the development of this bill, did not make a recommendation that incentives or payments should be made to public officials making disclosures.

The government does not support amendment 2. That would remove the word 'imminent' from the criteria for a protected emergency disclosure. The criterion, as it has been drafted in the bill, conforms with the government's response to the House of Representatives Standing Committee on Legal and Constitutional Affairs whistleblower protection report. In recommendation 21 of that report, the committee referred to disclosures being made to the media where a matter has been previously the subject of an internal disclosure and has not been acted on in a reasonable time having regard to the nature of the matter and the matter threatens 'immediate, serious harm to public health and safety.'

The government response on this aspect, which is, again, reflected in the bill, is that a discloser needs to believe on reasonable grounds that the information concerns a substantial and imminent danger to the health or safety of one or more persons. Again, the focus of the bill is on disclosures being handled within government. A substantial but not imminent threat to public safety may be disclosable conduct for a protected external disclosure if the requirements for that disclosure are met.

The amendments that deal with actions by ministers, senators and authorised officers of an agency that is a house of parliament being disclosable conduct—generally, the government does not support the proposed amendments that would apply this scheme to members of parliament or their staff or actions taken by a minister or a presiding officer. Members of parliament and their staff perform roles that are different to Commonwealth public sector agencies and their staff. This difference warrants further detailed consideration, which could be undertaken upon a subsequent review of the operation of the act, which is provided for in the amendment we have moved—a review of the act two years after its commencement.

There are some amendments relating to what is to occur following an inadequate response to investigation by the minister. Again, the government does not support these amendments. The government has moved amendments that will omit from the bill clauses 38 and 39, which deal with when responses to investigations under part 3 or other investigative powers are taken to be inadequate. The government amendments would instead provide different criteria relating to whether a discloser believes on reasonable grounds that a response to an investigation was inadequate. The government amendments would preserve the principle that a response to a disclosure investigation is taken not to be inadequate to the extent that the response involves action that has been taken by a minister or a presiding officer. This is consistent with the position in the bill that the scheme not apply to conduct of a minister or members of parliament.

Coming to the amendments that deal with intelligence information, as I said in my summing-up remarks this bill does apply to intelligence agencies. A public official within an intelligence agency can make a protected disclosure about wrongful conduct in their agency. The restrictions in the bill that relate to intelligence agencies apply to external disclosures. Information that is intelligence information cannot be disclosed outside government and no protection is afforded to any public disclosures of this kind of information.

The amendments proposed to the definition of intelligence information would effectively remove paragraph 41(1)(a) of that definition as a separate ground—that is, information that has originated with or has been received from an intelligence agency. Information received from an intelligence agency has to remain undisclosed. It is very important, and that is why those amendments are not supported.

A broad approach to what constitutes intelligence information is necessary to avoid subjective misconstruction of the harm that could arise through public disclosure of this kind of information. A discloser may inaccurately assess or be unable to accurately assess the harm that could arise to operations through public disclosure of sensitive intelligence information. Inadvertent or inappropriate disclosure of intelligence information may compromise national security and potentially place lives at risk. Also, Australian intelligence agencies have obligations to their foreign partners to maintain confidentiality of information shared for the purpose of assisting those agencies to fulfil their national security functions.

Amendment (16), the final amendment in this set, is not supported. As I have indicated the government has moved an amendment to the bill that would make provision for a review of the operation of the act within two years.

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