History of commitment to whistleblower protection airbrushed?

Special Minister of State Gary Gray made the following reference to public sector whistleblower protection in his second reading speech in March in introducing the Public Service Amendment Bill 2012:

Whistleblower reports
The act currently provides protection for whistleblowers in the APS. The regulations provide the framework under which whistleblower reports are handled.The bill makes two small amendments to the scheme. It provides a specific regulation-making power and allows for matters to be excluded from inquiry, including those that relate to an employee's own employment. Such complaints are better directed to the existing review of action scheme.

There has been no further debate.

The minister can buy an argument with the first proposition.

What is proposed are changes to processes associated with a whistleblower who reports a breach of the APS Code of Conduct. There are more than two proposed changes but the minister's reference to "small changes" was well chosen. "Comprehensive" or "far-reaching" would not have come to mind- see below for relevant extracts from the Explanatory Memorandum.

Of course major inadequacies in the Public Service Act protections, including the absence of any protection for public disclosures, were the reasons why much time and energy was spent since 2008 examining comprehensive whistleblower protection legislation

Minister Gray's four sentences air-brush the following history:

• ALP commitment to act on whistleblower protection prior to 2007 election. (They also talked then about justice for Allan Kessing, but that's another incomplete story.)
• House of Representatives Standing Committee on Legal and Constitutional Affairs (Dreyfus) asked to examine models in 2008 and reported in 2009.
• Government responded to the recommendations in March 2010 in a reasonably positive manner and went a bit further than the committee in some respects, including on public disclosures. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance. Whistleblower protection is about ensuring that there are appropriate processes in place, and protections offered, to facilitate the disclosure of wrongdoing, misconduct and corruption. The Government is committed to providing best-practice legislation to achieve this end. The Government will develop legislation reflecting this Government response for introduction during this year.(ie 2010). A further announcement about the legislation will be made in due course.”
• The Gillard agreement in September 2010 with Andrew Wilkie to enable formation of her government included a commitment that parliament would pass the law by July 2011.
•  The Australian Public Service Commission State of the Service Report 2010-2011 released in November 2011: "The government is finalising the Public Interest Disclosure Bill. The legislation is intended to set up a scheme that provides for the investigation of unacceptable conduct in the Australian Government sector and extend the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011."

In March 2012 "two small amendments" proposed to the existing scheme, and nothing since.

What gives???

  
Explanatory Memorandum  

Item 52—at the end of section 16

Item 52 proposes to insert sections 16(2) to (6) to require Agency Heads to establish procedures for an APS employee to make a whistleblower report and for Agency Heads to deal with those reports.

Whistleblower reports made to Agency Heads etc.

Proposed paragraph 16(2)(a) requires that an Agency Head must establish procedures for an APS employee to make a whistleblower report of an alleged breach of the Code of Conduct to an Agency Head or a person authorised by an Agency Head to receive whistleblower reports. An APS employee may make a whistleblower report to any Agency Head.

Proposed paragraph 16(2)(b) requires that an Agency Head must establish procedures to deal with a whistleblower report.

Proposed subsection 16(3) requires that the procedures established by an Agency Head under proposed subsection 16(2) must comply with basic procedural requirements (if any) prescribed by the Regulations.

Proposed subsection 16(4) is included to assist readers, as the procedures under proposed subsection 16(2) would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

Whistleblower reports made to the Commissioner or MPC etc.

Proposed paragraph 16(5)(a) provides a regulation-making power to prescribe procedures for an APS employee to make a whistleblower report of an alleged breach of the Code of Conduct to the Commissioner or the MPC or to a person authorised by the Commissioner or the MPC to receive whistleblower reports.

Proposed paragraph 16(5)(b) provides a regulation-making power to prescribe basic procedural requirements that are to be complied with by the Commissioner or MPC in dealing with whistleblower reports.

Circumstances for declining to inquire, or discontinuing an inquiry, into a whistleblower report

Proposed subsection 16(6) provides that the Regulations may prescribe circumstances in which Agency Heads, the Commissioner or MPC may decline to conduct, or may discontinue, an inquiry into a whistleblower report.

Item 53—paragraph 50(1)(a)

Item 53 repeals the current paragraph 50(1)(a) and replaces it such that it is a function of the MPC to inquire, subject to the Regulations, into whistleblower reports made to the MPC or to a person authorised by the MPC to receive whistleblower reports (see proposed amended section 16 above).

Item 54—subsection 50(2)

Item 54 proposes to extend the current provisions which apply to inquiries under paragraph 50(1)(c) to inquiries under the proposed paragraph 50(1)(a) as part of the MPC’s functions to include whistleblower reports (see proposed section 16). The proposed amendment would give the MPC equivalent powers to those currently available to the Commissioner when investigating whistleblower reports. The functions performed by the Commissioner and MPC in relation to APS whistleblowing are identical, and the current arrangements are inconsistent.