On the Government response to the Dreyfus Report on whistleblower protection, I'm happy to go with experts like Dr AJ Brown of Griffith University and others quoted in today's Australian saying the scheme as outlined is close to world best practice. Some points from my reading suggest the devil as usual is in the detail and some responses won't please everyone. There are qualifications on protected disclosures to the media that don't seem to have been mentioned in the first wave of media euphoria at the result. Unions, and I expect some members won't be happy at the response to Recommendation 25. The Minister says we can expect a bill to be on the already crammed legislative agenda this year.
Disclosure to the media
Media reports inevitably concentrate on and warmly welcome, as we all do, the protection for disclosures to the media or other third parties and the wider scope afforded to them in the response compared to the Dreyfus proposal. Here's the full text. There are a few more wrinkles ( in italics) and a lot of "ands" in the main protected disclosure provision than reported. so far.
Recommendation 21:
The Committee recommends that the Public Interest Disclosure Bill protect disclosures made to the media where the matter has been disclosed internally and externally, 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.
Government Response: Agreed in principle.
The PID Bill will protect public disclosures (e.g. to third parties, including the media):
(a) where:
(i) the matter disclosed has previously been disclosed to the responsible agency and the integrity agency, or the integrity agency directly; and
(ii) the disclosure relates to a serious matter; and
(iii) the disclosure was not acted upon in a reasonable time or the discloser has a reasonable belief that the response was not adequate or appropriate; and
(iv) no more information than is reasonably necessary to make the disclosure is publicly disclosed; and
(v) the public interest in disclosure outweighs countervailing public interest factors (e.g. protection of international relations, national security, cabinet deliberations etc); OR
(b) where:
(i) the discloser has a reasonable belief that a matter threatens substantial and imminent danger or harm to life or public health and safety; and
(ii) there are exceptional circumstances explaining why there was no prior disclosure internally (i.e. to the responsible agency) or externally (e.g. to the Commonwealth Ombudsman) of the serious public interest disclosure.
Public disclosures will not be protected where the public interest disclosure relates to intelligence-related information or is to a foreign government official.
Ombudsman has carriage
There was some jostling between the Public Service Commissioner and the Ombudsman over who should be responsible for the general operation of the legislation but the Ombudsman won out. The Ombudsman will also be the integrity agency- the step beyond the officer's agency- for public interest disclosures except those relating to Commonwealth intelligence and security agencies which should go to the Inspector-General of Intelligence and Security .
Government Response: Agreed in principle.
The PID Bill will protect public disclosures (e.g. to third parties, including the media):
(a) where:
(i) the matter disclosed has previously been disclosed to the responsible agency and the integrity agency, or the integrity agency directly; and
(ii) the disclosure relates to a serious matter; and
(iii) the disclosure was not acted upon in a reasonable time or the discloser has a reasonable belief that the response was not adequate or appropriate; and
(iv) no more information than is reasonably necessary to make the disclosure is publicly disclosed; and
(v) the public interest in disclosure outweighs countervailing public interest factors (e.g. protection of international relations, national security, cabinet deliberations etc); OR
(b) where:
(i) the discloser has a reasonable belief that a matter threatens substantial and imminent danger or harm to life or public health and safety; and
(ii) there are exceptional circumstances explaining why there was no prior disclosure internally (i.e. to the responsible agency) or externally (e.g. to the Commonwealth Ombudsman) of the serious public interest disclosure.
Public disclosures will not be protected where the public interest disclosure relates to intelligence-related information or is to a foreign government official.
Ombudsman has carriage
There was some jostling between the Public Service Commissioner and the Ombudsman over who should be responsible for the general operation of the legislation but the Ombudsman won out. The Ombudsman will also be the integrity agency- the step beyond the officer's agency- for public interest disclosures except those relating to Commonwealth intelligence and security agencies which should go to the Inspector-General of Intelligence and Security .
Parliamentary staff and those employed under MOPS not included
Recommendation 4:
The Committee recommends that the Public Interest Disclosure Bill provide that the Commonwealth Ombudsman is the authorised authority for receiving and investigating public interest disclosures made by employees under the Members of Parliament (Staff) Act 1984.
Government Response: Not agreed.
The PID Bill will not authorise employees under the Members of Parliament (Staff) Act 1984 to make disclosures under the scheme.
Disclosures will not be able to be made under the scheme about Members of Parliament. Allegations of wrongdoing by Members of Parliament should be addressed by the Parliament.Similarly, disclosures will not be able to be made under the scheme about Members of Parliament (Staff) Act 1984 employees.
Members of the public get a nod maybe, 5 years down the track
Government Response: Not agreed.
The PID Bill will not authorise employees under the Members of Parliament (Staff) Act 1984 to make disclosures under the scheme.
Disclosures will not be able to be made under the scheme about Members of Parliament. Allegations of wrongdoing by Members of Parliament should be addressed by the Parliament.Similarly, disclosures will not be able to be made under the scheme about Members of Parliament (Staff) Act 1984 employees.
Members of the public get a nod maybe, 5 years down the track
Recommendation 6:
The Committee recommends that, after a period of operation of the proposed legislation, the Australian Government consider introducing protection for members of the public to make public interest disclosures about the Australian Government public sector.
Government Response: Agreed.
The Government supports a review of the legislation being undertaken within five years from the date of commencement of the legislation, to consider protection for members of the public to make public interest disclosures about the Australian Government public sector.
Broad range of types of protected disclosures
Government Response: Agreed.
The Government supports a review of the legislation being undertaken within five years from the date of commencement of the legislation, to consider protection for members of the public to make public interest disclosures about the Australian Government public sector.
Broad range of types of protected disclosures
All the categories recommended have been endorsed,
Recommendation 7: Agreed in principle.
The Government supports in principle the categories outlined in this recommendation. The PID Bill will include the following categories of wrongdoing: illegal/unlawful activity (including corruption);maladministration; breach of public trust; scientific misconduct; wastage of public funds; dangers to public health or safety; dangers to the environment; official misconduct (including breaches of applicable codes of conduct); and adverse action against a person who makes a public interest disclosure under the legislation.
Current s.16 not to be repealed
The Government supports in principle the categories outlined in this recommendation. The PID Bill will include the following categories of wrongdoing: illegal/unlawful activity (including corruption);maladministration; breach of public trust; scientific misconduct; wastage of public funds; dangers to public health or safety; dangers to the environment; official misconduct (including breaches of applicable codes of conduct); and adverse action against a person who makes a public interest disclosure under the legislation.
Current s.16 not to be repealed
Recommendation 8:
The Committee recommends that, on the enactment of a Public Interest Disclosure Bill, the Australian Government repeal current whistleblower provisions in s. 16 of the Public Service Act 1999 and s. 16 of the Parliamentary Service Act 1999.
Government Response: Not agreed.
The PID Bill will only protect disclosures which are made under the PID scheme. The existing regimes for complaints under other Acts will remain. Accordingly, protections for persons making complaints about breaches of the Australian Public Service Code of Conduct, or the Code of Conduct within the meaning of the Parliamentary Service Act 1999, rather than making a disclosure under the PID Act, should retain the protections offered by the Public Service Act 1999 or the Parliamentary Service Act 1999.
While these sections will not be repealed, the Government considers that the titles of each of these sections should be amended to remove the word „whistleblowers‟.
The Committee recommends that, on the enactment of a Public Interest Disclosure Bill, the Australian Government repeal current whistleblower provisions in s. 16 of the Public Service Act 1999 and s. 16 of the Parliamentary Service Act 1999.
Government Response: Not agreed.
The PID Bill will only protect disclosures which are made under the PID scheme. The existing regimes for complaints under other Acts will remain. Accordingly, protections for persons making complaints about breaches of the Australian Public Service Code of Conduct, or the Code of Conduct within the meaning of the Parliamentary Service Act 1999, rather than making a disclosure under the PID Act, should retain the protections offered by the Public Service Act 1999 or the Parliamentary Service Act 1999.
While these sections will not be repealed, the Government considers that the titles of each of these sections should be amended to remove the word „whistleblowers‟.
Recommendation 13:
Protected disclosures not a workplace right
The Committee recommends that the Public Interest Disclosure Bill define the right to make a disclosure as a workplace right and enable any matter of adverse treatment in the workplace to be referred to the Commonwealth Workplace Ombudsman for resolution as a workplace relations issue.
Government Response: Not agreed.
The Government does not consider it appropriate that making a disclosure under the scheme should be a workplace right under the Fair Work Act 2009 (the FW Act). The Government does not consider the FW Act is an appropriate vehicle to protect people who make disclosures about the public sector. The Government will further consider options to protect persons who make disclosures under the scheme from detrimental treatment in the workplace which occurs as a result of making the disclosure.
Protections from liability
There has been criticism in the media that nothing was said about compensation for anyone who suffers discrimination or worse if the system doesn't work in a particular instance. As to the rest:
Protected disclosures not a workplace right
The Committee recommends that the Public Interest Disclosure Bill define the right to make a disclosure as a workplace right and enable any matter of adverse treatment in the workplace to be referred to the Commonwealth Workplace Ombudsman for resolution as a workplace relations issue.
Government Response: Not agreed.
The Government does not consider it appropriate that making a disclosure under the scheme should be a workplace right under the Fair Work Act 2009 (the FW Act). The Government does not consider the FW Act is an appropriate vehicle to protect people who make disclosures about the public sector. The Government will further consider options to protect persons who make disclosures under the scheme from detrimental treatment in the workplace which occurs as a result of making the disclosure.
Protections from liability
There has been criticism in the media that nothing was said about compensation for anyone who suffers discrimination or worse if the system doesn't work in a particular instance. As to the rest:
Recommendation 14:
The Committee recommends that the protections provided under the Public Interest Disclosure Bill include immunity from criminal liability, from liability for civil penalties, from civil actions such as defamation and breach of confidence, and from administrative sanction.
Government Response: Agreed in principle.
The Government considers that a person who has an honest and reasonable belief that the disclosure concerns disclosable conduct under the legislation should be protected from all legal liability resulting from the disclosure, where the disclosure has been made in accordance with the scheme.
The Government will limit the scope of this protection to avoid conferring automatic immunity on those public officials whose participation in the conduct which they subsequently report may attract criminal or other liability.
Disclosures to an MP not protected by this law
The Committee recommends that the protections provided under the Public Interest Disclosure Bill include immunity from criminal liability, from liability for civil penalties, from civil actions such as defamation and breach of confidence, and from administrative sanction.
Government Response: Agreed in principle.
The Government considers that a person who has an honest and reasonable belief that the disclosure concerns disclosable conduct under the legislation should be protected from all legal liability resulting from the disclosure, where the disclosure has been made in accordance with the scheme.
The Government will limit the scope of this protection to avoid conferring automatic immunity on those public officials whose participation in the conduct which they subsequently report may attract criminal or other liability.
Disclosures to an MP not protected by this law
Recommendation 22:
The Committee recommends that the Public Interest Disclosure Bill include Commonwealth Members of Parliament as a category of alternative authorised recipients of public interest disclosures.
Government Response: Not agreed.
The Government notes that parliamentary privilege and the implied right to freedom of political communication already provide some protection to Members of Parliament and persons who provide information to them in certain circumstances. The Government also refers to its responses to Recommendations 23 and 24.
But recognition that a parliamentarian may become aware of a disclosure
Government Response: Not agreed.
The Government notes that parliamentary privilege and the implied right to freedom of political communication already provide some protection to Members of Parliament and persons who provide information to them in certain circumstances. The Government also refers to its responses to Recommendations 23 and 24.
But recognition that a parliamentarian may become aware of a disclosure
Recommendation 23:
The Committee recommends that, if Commonwealth Members of Parliament become authorised recipients of public interest disclosures, the Australian Government propose amendments to the Standing Orders of the House of Representatives and the
Senate, advising Members and Senators to exercise care to avoid saying anything in Parliament about a public interest disclosure which would lead to the identification of persons who have made public interest disclosures, which may interfere in an investigation of a public interest disclosure, or cause unnecessary damage to the reputation of persons before the investigation of the allegations has been completed.
Government Response: Agreed in principle.
While the Government does not consider Members of Parliament should be authorised recipients under the scheme, it may be that they will from time to time become aware of a matter which is a public interest disclosure. Accordingly, the Government will consider whether to support the introduction of amendments advising Members of Parliament to exercise care in how such a matter is handled, were they to become aware of the substance of a public interest disclosure. For instance, the Government is concerned to avoid the identification of persons who have made public interest disclosures, interference in an investigation of a public interest disclosure, or unnecessary damage to the reputation of persons before the investigation of allegations has been completed.
Recommendation 24:
The Committee recommends that the Public Interest Disclosure Bill provide that nothing in the Act affects the immunity of proceedings in Parliament under section 49 of the Constitution and the Parliamentary Privileges Act 1987.
Government Response: Agreed.
For the avoidance of doubt, the PID Bill will provide that nothing in the Act affects the immunity of proceedings in Parliament under section 49 of the Constitution and the Parliamentary Privileges Act 1987.
Disclosure in seeking advice from professional associations and unions not protected
Recommendation 25:
The Committee recommends that the Public Interest Disclosure Bill protect disclosures made to third parties such as legal advisors, professional associations and unions where the disclosure is made for the purpose of seeking advice or assistance.
Government Response: Agreed in part.
The Government does not consider these third party groups should be authorised recipients under the scheme. Nevertheless, the Bill will provide statutory protections for communications with legal advisors made for the purpose of obtaining legal advice or assistance.
Ombudsman discretion to publish reports
Recommendation 26:
The Committee recommends that the Public Interest Disclosure Bill provide authority for the Commonwealth Ombudsman to publish reports of investigations or other information relating to disclosures (including the identity of persons against whom allegations are made) where the Ombudsman considers it is in the public interest to do so.
Government Response: Agreed in principle.
The Commonwealth Ombudsman will have authority to publish reports of investigations or other information relating to disclosures (including the identity of persons against whom allegations are made) where the Commonwealth Ombudsman considers it is in the public interest to do so.
As the Inspector-General of Intelligence and Security is the primary external authority for disclosures relating to Commonwealth intelligence and security agencies, the Inspector-General will have the authority to prepare and publish reports relating to disclosures on these matters. Any such publications will be subject to privacy, national security and like considerations.
The Committee recommends that, if Commonwealth Members of Parliament become authorised recipients of public interest disclosures, the Australian Government propose amendments to the Standing Orders of the House of Representatives and the
Senate, advising Members and Senators to exercise care to avoid saying anything in Parliament about a public interest disclosure which would lead to the identification of persons who have made public interest disclosures, which may interfere in an investigation of a public interest disclosure, or cause unnecessary damage to the reputation of persons before the investigation of the allegations has been completed.
Government Response: Agreed in principle.
While the Government does not consider Members of Parliament should be authorised recipients under the scheme, it may be that they will from time to time become aware of a matter which is a public interest disclosure. Accordingly, the Government will consider whether to support the introduction of amendments advising Members of Parliament to exercise care in how such a matter is handled, were they to become aware of the substance of a public interest disclosure. For instance, the Government is concerned to avoid the identification of persons who have made public interest disclosures, interference in an investigation of a public interest disclosure, or unnecessary damage to the reputation of persons before the investigation of allegations has been completed.
Recommendation 24:
The Committee recommends that the Public Interest Disclosure Bill provide that nothing in the Act affects the immunity of proceedings in Parliament under section 49 of the Constitution and the Parliamentary Privileges Act 1987.
Government Response: Agreed.
For the avoidance of doubt, the PID Bill will provide that nothing in the Act affects the immunity of proceedings in Parliament under section 49 of the Constitution and the Parliamentary Privileges Act 1987.
Disclosure in seeking advice from professional associations and unions not protected
Recommendation 25:
The Committee recommends that the Public Interest Disclosure Bill protect disclosures made to third parties such as legal advisors, professional associations and unions where the disclosure is made for the purpose of seeking advice or assistance.
Government Response: Agreed in part.
The Government does not consider these third party groups should be authorised recipients under the scheme. Nevertheless, the Bill will provide statutory protections for communications with legal advisors made for the purpose of obtaining legal advice or assistance.
Ombudsman discretion to publish reports
Recommendation 26:
The Committee recommends that the Public Interest Disclosure Bill provide authority for the Commonwealth Ombudsman to publish reports of investigations or other information relating to disclosures (including the identity of persons against whom allegations are made) where the Ombudsman considers it is in the public interest to do so.
Government Response: Agreed in principle.
The Commonwealth Ombudsman will have authority to publish reports of investigations or other information relating to disclosures (including the identity of persons against whom allegations are made) where the Commonwealth Ombudsman considers it is in the public interest to do so.
As the Inspector-General of Intelligence and Security is the primary external authority for disclosures relating to Commonwealth intelligence and security agencies, the Inspector-General will have the authority to prepare and publish reports relating to disclosures on these matters. Any such publications will be subject to privacy, national security and like considerations.
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