Mark Dreyfus (Isaacs, Australian Labor Party, Attorney-General) Share this | Link to 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.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Question agreed to.

Debate adjourned.

Sitting suspended from 12:38 to 16:02

Sharon Grierson (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The question now is that the bill be agreed to.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (16) on sheet 1 circulated in my name together:

(1) Page 20 (after line 10), at the end of Division 1, add:

24A Act of grace payments

(1) The Minister may authorise one or more payments of an amount or amounts specified in the authorisation to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability), if:

  (a) either:

     (i) the person has made a public interest disclosure; or

     (ii) the person has not made a public interest disclosure but the Minister is satisfied that the person has made a disclosure that the person genuinely believed at the time of making it to be a public interest disclosure within the meaning of this Act; and

  (b) either:

     (i) the Minister is satisfied that the disclosure resulted in the protection or the reclaiming of public money; or

     (ii) the Minister considers, in the Minister's absolute discretion, that there are reasons of public interest for making the payment or payments.

(2) Nothing in subsection (1) has the effect of appropriating the Consolidated Revenue Fund for the purposes of making a payment under that subsection.

(2) Clause 26, page 23 (table item 3), omit "and imminent".

(3) Clause 31, page 29 (lines 12 to 15), omit paragraph (b).

(4) Clause 36, page 33 (line 6), before "An", insert "(1)".

(5) Clause 36, page 33 (line 12), at the end of the definition of authorised officer, add:

  ; or (c) for an agency that is a House of the Parliament:

     (i) a Senator or Member who belongs to that House or a public official who belongs to the Finance Department; and

     (ii) is appointed, in writing, by the principal officer of that House (with the agreement of the principal officer of the Finance Department, if the public official belongs to the Finance Department), as an authorised officer for the purposes of this Act.

(6) Clause 36, page 33 (after line 12), at the end of the clause, add:

(2) For the purposes of paragraph (c) of the definition of authorised officer, the Finance Department means the Department administered by the Minister administering the Financial Management and Accountability Act 1997.

(7) Clause 38, page 34 (line 2), omit "(1)".

(8) Clause 38, page 34 (lines 14 to 20), omit subclause (2).

(9) Clause 39, page 34 (line 22), omit "(1)".

(10) Clause 39, page 34 (lines 26 to 32), omit subclause (2).

(11) Clause 41, page 35 (line 28) to page 36 (line 4), omit paragraphs (1)(a) and (b), substitute:

  (a) information that has originated with, or has been received from, an intelligence agency that is about, or that might reveal:

     (i) a source of information; or

     (ii) the technologies or methods used, proposed to be used, or being developed for use, by an intelligence agency to collect, analyse, secure or otherwise deal with, information; or

     (iii) operations that have been, are being, or are proposed to be, undertaken by an intelligence agency;

(12) Clause 41, page 36 (line 20), omit "(b),".

(13) Clause 69, page 60 (after table item 12), insert:

(14) Clause 71, page 64 (after line 13), after paragraph (b), insert:

  (ba) a House of the Parliament; or

(15) Clause 71, page 66 (after table item 2), insert:

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

82A Review

(1) The Minister must, as soon as practicable after the second anniversary of the commencement of this section, cause a review to be undertaken of the operation of this Act.

(2) The persons undertaking the review must give the Minister a written report of the review within 6 months of that second anniversary.

(3) The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

The purpose of these amendments is to clarify the way that an ombudsman can investigate a whistleblower and their claim and how it can be treated by the agency concerned. The position underpinning these amendments is, obviously: supporting the principle of whistleblowing and empowering people to take a stand to do what is right and make a positive and lasting contribution to society.

This is exactly what whistleblowers do and the Greens unequivocally support their protection under law. But we want a whistleblower scheme that assures people that they will not be the focus of investigation but rather that their allegations will be. However, the way that this bill is drafted shows greater preoccupation with protecting Public Service institutions than with public servants themselves. The government's amendments improve this imbalance, but we still have concerns because the bill sets up so many trip-wires for the whistleblower to navigate and, with one wrong step, they can lose their legal protection. In this respect, we wish that the bill was closer to the legislation that was passed in the ACT as part of the agreement between the Greens and the Labor Party, which we believe provides a template for simplicity and effectiveness.

The amendments address a number of issues and I will go through those briefly. First is the question of MPs and their staff. An obvious flaw in the bill is that it does not cover MPs and their staff. Our amendments include them in the operation of this legislation. Members of parliament are imposing standards and obligations on all those working for the Public Service, except themselves.

This legislation, as currently framed, will do nothing to challenge the public perception that politicians are more interested in arranging their affairs to suit themselves than in vigorously pursuing the public interest. These amendments will bring MPs, ministers, speakers, presidents and their staff into the scheme so that they may raise concerns about misconduct, maladministration and corruption before the consequences escalate.

Also addressed by these amendments is the question of intelligence agencies. The blanket exemption on externally disclosing all information created or obtained by an intelligence service is so broad it would cover the most remotely incidental and inane material and even covers disclosing material that has already been publicly released.

Our moderate amendment simply takes this blanket exemption out and leaves in place the long list of exempt material that would threaten investigations, operational matters and broader national security interests. Without this amendment, our intelligence agencies will be more vulnerable to maladministration and corruption than any other public agency because there are no protected avenues for intelligence officers to disclose information to a third party when internal investigations have been fruitless or thwarted by senior management.

These amendments also address the question of act-of-grace payments. Whistleblowers often undergo great personal and financial strain once they have decided to come forward, and this legislation, despite the objects of the act, does not provide enough incentives for someone thinking about doing the right thing and speaking out.

One way that the Greens want to provide incentives is for the minister to have an explicit and broad but non-compellable power to make payments to those whistleblowers who, through their disclosures, have saved the government money either through preventing revenue loss or enabling it to be reclaimed.

There is also a broad power to reward the discloser in the public interest. Many jurisdictions have improved their public service efficiency and reduced waste through offering payment to disclosers. We should do the same so that there is a chilling effect on those who might engage in wrongdoing but do not in knowledge that their colleague might be rewarded if they expose them. I commend the amendments to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Attorney-General) Share this | Link to 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.

Sharon Grierson (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Question negatived.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I move amendment (1) on sheet 2, as circulated in my name:

(1) Clause 26, page 23 (table item 3), after "persons", insert "or to the environment".

Currently under the bill, only significant and imminent acts that are likely to affect the health and safety of one or more persons can be disclosed to a third party—a journalist or a member of parliament, for example—immediately, without going through internal procedures first. Our amendment will allow an external disclosure to occur immediately where there is a substantial threat to the environment. For instance, under the current wording an oil rig that is likely to pollute an entire marine environment could not be publicly revealed unless it affected the health of the workers, too. This amendment will include the environment as an emergency disclosure and will also restrict disclosures on serious matters that have either already happened or where a time frame is not known to the discloser.

Sharon Grierson (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Ordered that the bill be reported to the House with amendments.