CHAPTER 3

COMMITTEE VIEW AND RECOMMENDATIONS

3.1        The committee notes that the evidence it has received throughout its inquiry indicates broad-ranging support for the establishment of a legislative framework to provide for the making and investigation of public interest disclosures, and protection for those making public interest disclosures in the Commonwealth public sector. Noting that Commonwealth public interest disclosure legislation has been
long-awaited and highly-anticipated, the committee also expresses its strong support for the introduction of such legislation. Accordingly, the committee considers that the framework provided for in the Bill should be implemented without further delay.

3.2        In the committee's view, the Bill provides for a sound model to support and protect public interest disclosures across the Commonwealth public sector, and will assist in promoting accountability and integrity within that broad sector. The committee agrees that the focus of the model should be on investigating and resolving disclosures internally, and considers that the framework for investigations in the model will allow disclosures to be properly investigated and addressed within relevant agencies at least in the first instance. The committee is also strongly supportive of robust protections afforded to public officials who make disclosures within that environment.

3.3        The committee considers that, in some ways, passage of the Bill is only a starting point for the public interest disclosures scheme for which it provides. The committee notes that there are specific measures in the Bill that allow for the development of standards for public interest disclosures within Commonwealth agencies, along with the delivery of education and awareness campaigns by the Commonwealth Ombudsman and the IGIS. In the committee's view, therefore, the Ombudsman and the IGIS will have a fundamental role to play in the successful implementation of the legislative framework and in helping to establish a
pro-disclosure culture within the Commonwealth public sector. The committee strongly encourages the Australian Government to ensure that adequate funding and resourcing is maintained in relation to the Ombudsman and the IGIS to provide them with as much capability as possible in that regard.

3.4        Given the prolonged period of development of the Bill – some six years, according to evidence from the Department of the Prime Minister and Cabinet (Department) – and assurances by the Department that comprehensive consideration has been given to various policy responses and drafting approaches,[1] the committee is not recommending any substantive changes to the Bill that would have the effect of altering what the committee understands to be the underlying government policy with respect to particular matters. Many of these policies were articulated in the Australian Government's 2010 response to the 2009 House of Representatives Committee's report on whistleblowing in the Commonwealth public sector.

3.5        The committee is, however, making some recommendations for amendments to the Bill. These suggested amendments are relevant to the practical operation of the proposed scheme: the committee considers they will provide public officials with further clarity and certainty in relation to the public interest disclosures process, as well as in relation to the protections that public officials will receive in the event that they choose to make a public interest disclosure.

Internal disclosures

3.6        As noted above, the committee accepts and supports the Bill's focus and the policy intention of encouraging and resolving disclosures within the public sector itself. Therefore the committee is concerned that, as currently drafted, it is not apparent that the protections in the Bill apply where a person makes a public interest disclosure to their immediate supervisor or manager, who is not an 'authorised officer' for the purposes of the legislation.

3.7        Since the key objective of the Bill is to encourage public interest disclosures, the committee believes that this goal will be thwarted where unnecessary barriers are put in the way of public officials wanting to make a disclosure. Further, the committee is mindful of evidence presented during the course of its inquiry which clearly indicates that the majority of disclosures are made to immediate supervisors,[2] and that these types of disclosures are explicitly covered in legislation in other jurisdictions in Australia.

3.8        In the committee's view, it would be a significant discouragement to a person if they were to be told that the information they have disclosed to their supervisor or manager is not, in fact, a protected disclosure under the legislation – simply because that supervisor or manager is not an 'authorised officer'. The committee therefore considers that the Bill should be amended so that a public official can make a public interest disclosure to their direct, or indirect, supervisor or manager if they consider that to be appropriate.

3.9        The committee also acknowledges evidence suggesting amendments to the Bill to provide that, in limited circumstances, a protected external disclosure can be made without the need for an internal disclosure. However, the committee is satisfied that the provision to make an internal disclosure to the Ombudsman (or the IGIS for intelligence agencies) provides an alternative for a person who believes they cannot make a disclosure to an authorised officer within their home agency.

Recommendation 1

3.10      The committee recommends that the Bill be amended to provide that a public official can make a public interest disclosure to a person who is their direct, or indirect, supervisor or manager.

External disclosures

3.11      The committee considers that the provisions providing for the circumstances in which an external disclosure would be protected are problematic. In particular,
the committee agrees with submitters and witnesses that the number of
'further requirements' contained in subclause 26(1), coupled with the tests for whether these requirements are met, may act as a significant deterrent to a person proceeding with an external disclosure.

3.12      As stated above, the committee does not intend to make any recommendations which would alter clear government policy as the committee understands it to be. While the committee recognises that a number of submitters and witnesses have argued for changes regarding the further requirement not to disclose 'intelligence information', the committee notes that the government's response to the House of Representatives Committee's report specifically states that the government's policy position is that, due to national security considerations, '[p]ublic disclosures will not be protected where the public interest disclosure relates to intelligence-related information'.[3] As such, the committee is of the view that this 'further requirement' should remain in relation to external (and emergency and legal practitioner) disclosures.

3.13      The committee does, however, consider that the Australian Government should contemplate amendments which would simplify and clarify the further requirements in item 2 of the table in subclause 26(1), and the following related provisions:

• subclause 26(3) – factors to be considered when determining if a disclosure is contrary to the public interest;
• clause 37 – circumstances in which investigations under Part 3 are inadequate;
• clause 38 – circumstances in which responses to investigations under Part 3 are inadequate; and
• clause 39 – circumstances in which responses to other disclosure investigations are inadequate.

3.14      In considering these amendments, the committee suggests that particular regard should be had to the specific proposals for improvement of those provisions contained in submissions to the inquiry from Dr Gabrielle Appleby,
Dr Judith Bannister and Ms Anna Olijnyk (Submission 9), the Accountability Round Table (Submission 17), the Law Council of Australia (Submission 24), and Professor AJ Brown (Submission 28).

 

Recommendation 2

3.15      The committee recommends that the Australian Government introduce amendments to simplify and clarify the external disclosure requirements in item 2 of the table in subclause 26(1) of the Bill, and in the following related provisions:

• subclause 26(3) – factors to be considered when determining if a disclosure is contrary to the public interest;
• clause 37 – circumstances in which investigations under Part 3 are inadequate;
• clause 38 – circumstances in which responses to investigations under Part 3 are inadequate; and
• clause 39 – circumstances in which responses to other disclosure investigations are inadequate.

Recommendation 3

3.16      In developing the amendments in Recommendation 2, the committee recommends that the Australian Government consider the proposals for amendments in the submissions to the committee's inquiry received from:
Dr Gabrielle Appleby, Dr Judith Bannister and Ms Anna Olijnyk; the Accountability Round Table; the Law Council of Australia; and Professor AJ Brown.

Loss of immunity from civil, criminal or administrative liability

3.17      Many submitters commented on the omission of the word 'knowingly' in clause 11, and the consequences that it may have for persons who make bona fide disclosures, which are found subsequently to be based on incorrect information. The committee notes that a departmental officer has advised that this appears to be an inadvertent omission and that it is likely that an amendment will be made to rectify it.

3.18      The committee supports an amendment to clause 11 of the Bill so that the immunity provided for in clause 10 from civil, criminal or administrative liability (including disciplinary action) for making a disclosure is only lost where a person 'knowingly' makes a false or misleading statement.

 

Recommendation 4

3.19      The committee recommends that clause 11 of the Bill be amended to insert 'knowingly' before the phrase 'making a statement that is false or misleading'.

Clause 81 and preservation of parliamentary privilege

3.20      In relation to external and emergency disclosures, while members of parliament are able to receive these types of disclosures as possible recipients under the definition of 'any person other than a foreign public official' in clause 26, the Bill does not specifically identify members of parliament as a category of recipient.

3.21      The committee notes evidence from the Department on this issue and its advice that clause 81 has been included in the Bill 'for the avoidance of doubt' – apparently based on submissions to the 2009 House of Representatives Committee's inquiry by the then Clerk of the Senate and the then Acting Clerk of the House of Representatives who supported the inclusion of such a provision where legislation provides for public interest disclosures to members of either House of the parliament.

3.22      The committee does not accept the Department's advice on this issue and considers that the logic relied upon in the advice is flawed. As the committee understands it, the former Clerk of the Senate was referring to provisions expressly providing for public interest disclosures to MPs and senators. An express clause dealing with the provision of public interest disclosures to members and senators may be interpreted to modify, alter or affect the powers, privileges and immunities of the Houses or their members. In such circumstances, a clause such as proposed clause 81 may be an appropriate means by which to counter or modify such an interpretation.

3.23      Since the Bill does not contain an express clause to provide for public interest disclosures to MPs and senators, there are no grounds for concluding that the Bill may modify, alter or affect the powers, privileges and immunities of the Houses or their members. Put simply, a provision such as clause 81 has no work to do because it is not necessary to state that those powers, privileges and immunities are unaffected. The committee agrees with the current Clerk of the Senate's advice that '[i]f such clauses become relatively common, then questions may arise about the effect of bills in which they are not used, leading to an argument that, in the absence of such a provision, the powers, privileges and immunities of the Houses may be modified by necessary implication'.[4]

3.24      The committee therefore concludes that there are no grounds for the inclusion of clause 81 and recommends that it be removed from the Bill.

Recommendation 5

3.25      The committee recommends that clause 81 of the Bill be removed.

Role of Commonwealth agencies, Commonwealth Ombudsman and IGIS  

3.26      The committee acknowledges the concerns expressed by a number of submitters to the inquiry that the Bill is overly complex and difficult to navigate. One example of the complexity of the Bill is demonstrated when attempting to answer the simple question: 'to whom can a disclosure be made?' As a starting point, clause 26 sets out (in table format) the four types of public interest disclosures with a column listing the recipients for each type of disclosure. Internal disclosures, which are the focus for the public interest framework, can be made to an 'authorised internal recipient', which is defined in clause 34 (a table) and refers to the 'authorised officer' of an agency as the 'authorised internal recipient'. 'Authorised officer' is defined in clause 36, and refers to the 'principal officer' of an agency. 'Principal officer' is defined in clause 73 of the Bill (another table). Effectively, a person seeking to make an internal disclosure needs to traverse four sections of the Bill and three tables to work out to whom to make a disclosure.

3.27      In the committee's view, the convoluted structure and drafting style of the Bill may be a barrier to those seeking to utilise and apply its provisions unless appropriate correlating education, guidance and support are provided throughout the public sector. As noted above, the committee considers that the measures to be developed by Commonwealth agencies, the Ombudsman and the IGIS as part of the public interest disclosures framework will be absolutely essential in ensuring that the scheme is successfully implemented. The committee is satisfied that these measures will address many of the concerns raised during the course of this inquiry. In the committee's view, these agencies will have an important role to play in establishing a pro-disclosure culture within the Commonwealth public sector.

Support for the development and implementation of standards

3.28      The Bill provides that the Ombudsman may determine standards in relation to a number of matters, including procedures for principal officers to comply with in dealing with internal disclosures, the conduct of investigations and the preparation of reports on investigations. These standards are to be developed in consultation with the IGIS.[5]

3.29      The committee is reassured by the submission from the Ombudsman, which indicates that some thought has already gone into the framing and content of such standards.[6] The committee encourages the Ombudsman, in consultation with the IGIS, to develop the necessary standards promptly.

3.30      The committee would also strongly encourage principal officers to give priority, and all necessary resources, to fulfilling their obligations pursuant to clause 59 of the Bill. These obligations relate to establishing procedures which comply with the standards set out by the Ombudsman, for facilitating and dealing with public interest disclosures and to ensure that sufficient authorised officers are readily accessible by, and identified to, all public officials within their agencies.

Support for education and awareness programs

3.31      Given the complexity of the Bill, the committee concludes that it would be preferable for public officials to have ready access to clear and coherent guidance material in relation to the Bill's practical operation – rather than being required to work through the complicated steps included in the legislation itself when seeking information or clarification on procedures relating to the making of a public interest disclosure.

3.32      Therefore, the committee is strongly supportive of the additional functions of the Commonwealth Ombudsman and the IGIS to conduct education and awareness programs in relation to the legislation, and again stresses the importance of adequate funding and resourcing to enable those agencies to undertake this additional role.

Need for review

3.33      As noted above, the committee considers that timely passage of the Bill is optimal. Despite that view, the committee does not dismiss some of the serious concerns raised in submissions and evidence to this inquiry, particularly in relation to aspects of the Bill which may have the practical effect of discouraging a person from making a public interest disclosure. Accordingly, the committee has formed the view that there would be significant value in a comprehensive review of the operation of the legislation being undertaken to assess its adequacy and effects, after the public interest disclosure framework has been in operation for a period of two years.

Recommendation 6

3.34      The committee recommends that the Australian Government conduct a comprehensive review of the practical operation and effect of the public interest disclosure framework to be established by the Bill, with the review to be undertaken two years after commencement of the legislation.

Other matters

3.35      Due to the complex nature of the Bill and the issues raised during the committee's inquiry, the committee has necessarily focussed its attention on a limited number of key issues. In making its conclusions and recommendations, the committee acknowledges that it has not been able to address all of the suggestions put forward in submissions and evidence to the inquiry.

3.36      Some of the issues raised by stakeholders – but in relation to which the committee has not been in a position to form extensive views – include:

• the requirement that internal, external and emergency disclosures are not contrary to 'designated publication restrictions', which are defined in clause 40;
• the appropriateness of all the criteria in clause 48 setting out when a principal officer may exercise his or her discretion not to investigate a public interest disclosure; and
• the requirement that a person making an internal disclosure to the Ombudsman must believe on reasonable grounds that it would be appropriate for the disclosure to be investigated by the Ombudsman.

3.37      In the circumstances, the committee considers that the Department is best placed to actively and thoroughly consider the evidence presented to this inquiry and consider the appropriateness of suggested amendments to the Bill which accord with government policy. In the committee's view, the concerns and recommendations made by the following submitters should be given further consideration by the Department:

• the Chief Justice of the Family Court of Australia (Supplementary Submission 4) and the Accountability Round Table (Supplementary Submission 17) in relation to designated publication restrictions;
• Professor AJ Brown (Submission 28) in relation to the discretion of the principal officer of an agency not to investigate a disclosure; and
• the Law Council of Australia (Submission 24), in relation to the grounds upon which an internal disclosure can be made to the Ombudsman.

Recommendation 7

3.38      Subject to Recommendations 1-5, and after due consideration of any amendments arising from the 'other matters' referred to in paragraphs 3.35-3.37 of this report, the committee recommends that the Bill be passed.

 

Senator Trish Crossin

Chair

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