Whistleblower legislation: the what, who and when you can go public- in a fashion.

The Government will need votes from the independents to get whistleblower legislation

Mark Dreyfus

through the parliament, and one at least, Andrew Wilkie, speaks with authority when it comes to the subject. 

So differences between the Dreyfus bill of last week and the Wilkie bill introduced into Parliament last year and other best practice standards adopted in Queensland and the ACT, foreshadow further debate both on on big picture issues and fine points of detail. The Attorney General left the door open, in contrast to last week's media reform "take or leave it" debacle: 

"Given the complex nature of the issue I also consider that consultation should continue on the content and structure of the bill. If it becomes clear that the whistleblower scheme would benefit from legislative amendment I will be happy to bring them forward if this bill progresses."

Like most of you I'm waiting for the definitive analysis from Professor A.J Brown.
( Update 26 March: "Serious problems” that must be fixed, according to a report on Crikey (paywall) “Currently, I wouldn’t be supporting the bill,” Brown, who is also a director of Transparency International Australia, told Crikey. “There are too many things wrong with it in its current form to achieve its intended objectives. Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield. .It means public servants who blow the whistle on wrongdoing by politicians, including concerns about corruption or bribery, would not be protected. .... Brown’s second major concern is the sweeping exemption for disclosures about intelligence agencies.")

In the meantime a quick look at the big three: what is covered, who is covered and in what circumstances a person can disclose information to an outsider and still be protected.

What is covered
The Dreyfus bill is likely to get close to a tick for the broad range of matters covered by the definition of disclosable conduct. It goes far beyond the standard corrupt conduct, serious maladministration and serious or substantial waste of public money, to include a range of other conduct notably conduct that is "an abuse of public trust", that "unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons", or "results in, or increases, a risk of danger to the environment."

Who is covered
The Dreyfus bill includes a lengthy definition of "public official" that extends to a person employed by a contractor, and under Clause 70, to an individual that an authorised officer determines can be taken to be a public official. 

Whether this is good enough for Wilkie remains to be seen. 

His bill specifically included in the definition senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984. 

The parliamentary committee that Mark Dreyfus chaired in 2009 recommended ministerial and other staff employed under the MoPS act should be covered. The government responded in 2010 : The 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."

External disclosures
Both bills set out circumstances where disclosure outside the system can qualify as a protected disclosure. Dreyfus is broader generally than Wilkie, the former opening up disclosure to any third person other than a foreign government official, the latter limited to disclosure to a journalist. 
(Update: Better wisdom. A.J Brown tells me "Wilkie is broader than Dreyfus on external disclosure -- not narrower... Wilkie makes it explicit that any person includes journalists, but still extends to any person than foreign public official.  Dreyfus is just not explicit on that, and much narrower in terms of other restrictions on when people can go public.")


And there are other differences. 

 For example, the Wilkie bill alone protects disclosure to a journalist without prior internal notification if a public official honestly believes on reasonable grounds that:

  (a)  the public official has information that tends to show disclosable conduct; and

  (b)  there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and

   (c)  it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.

On a separate issue, the Dreyfus bill alone limits the information that can be disclosed in this way to where disclosure on balance, is not contrary to the public interest. That's quite a tightrope for any public official to walk. What if disclosure would reveal major corruption - say the bribing of officials here or overseas - but would reveal information that (under the FOI act) is the subject of an absolute exemption on grounds disclosure would be contrary to the public interest as a cabinet document, or information that arguably could damage international relations? Disclose that at your own peril by the sound of it.

An exception to this public interest test applies where the information reveals substantial and imminent (another high hurdle) danger to the health or safety of one or more persons.

A companion piece while this is on the table should be a government response to the ALRC
Report 112 Secrecy laws and open Government in Australia that has had no attention as far as those on the outside can fathom since it was tabled in March 2010. The draconian s 70 of the Crimes Act that criminalises unauthorised disclosure certainly fails Wilkie's "Kessing test."

Some extracts from the bills on these key issues follow.

A. What is disclosable conduct

Dreyfus

1	Conduct that contravenes a law of the Commonwealth, a State or a Territory.
2	Conduct, in a foreign country, that contravenes a law that: (a) is in force in the foreign country; and (b) is applicable to the agency, public official or contracted service provider; and (c) corresponds to a law in force in the Australian Capital Territory.
3	Conduct that: (a) perverts, or is engaged in for the purpose of perverting, or attempting to pervert, the course of justice; or (b) involves, or is engaged in for the purpose of, corruption of any other kind.
4	Conduct that constitutes maladministration, including conduct that: (a) is based, in whole or in part, on improper motives; or (b) is unreasonable, unjust or oppressive; or (c) is negligent.
5	Conduct that is an abuse of public trust.
6	Conduct that is: (a) fabrication, falsification, plagiarism, or deception, in relation to: (i) proposing scientific research; or (ii) carrying out scientific research; or (iii) reporting the results of scientific research; or (b) misconduct relating to scientific analysis, scientific evaluation or the giving of scientific advice.
7	Conduct that results in the wastage of: (a) public money (within the meaning of the Financial Management and Accountability Act 1997 ); or (b) public property (within the meaning of that Act); or (c) money of a prescribed authority; or (d) property of a prescribed authority.
8	Conduct that: (a) unreasonably results in a danger to the health or safety of one or more persons; or (b) unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons.
9	Conduct that: (a) results in a danger to the environment; or (b) results in, or increases, a risk of danger to the environment.
10	Conduct of a kind prescribed by the PID rules.

             (2)  Without limiting subsection (1), the following are also disclosable conduct :

                     (a)  conduct engaged in by a public official that involves, or is engaged in for the purpose of, the public official abusing his or her position as a public official;

                     (b)  conduct engaged in by a public official that could, if proved, give reasonable grounds for disciplinary action against the public official.

             (3)  For the purposes of this section, it is immaterial:

                     (a)  whether conduct occurred before or after the commencement of this section; or

                     (b)  if an agency has engaged in conduct—whether the agency has ceased to exist after the conduct occurred; or

                     (c)  if a public official has engaged in conduct—whether the public official has ceased to be a public official after the conduct occurred; or

                     (d)  if a contracted service provider has engaged in conduct—whether the contracted service provider has ceased to be a contracted service provider after the conduct occurred.

B. Who is a public official?

Dreyfus:

Public officials and the agencies to which they belong
Item	Column 1 Public official	Column 2 Agency to which the public official belongs
1	A Secretary of a Department.	The Department.
2	An APS employee in a Department.	The Department.
3	A Head of an Executive Agency.	The Executive Agency.
4	An APS employee in an Executive Agency.	The Executive Agency.
5	A principal officer of a prescribed authority.	The prescribed authority.
6	A member of the staff of a prescribed authority (including an APS employee in the prescribed authority).	The prescribed authority.
7	An individual who constitutes a prescribed authority.	The prescribed authority.
8	A member of a prescribed authority (other than a court).	The prescribed authority.
9	A director of a Commonwealth company.	The Commonwealth company.
10	A member of the Defence Force.	The Defence Department.
11	An AFP appointee (within the meaning of the Australian Federal Police Act 1979 ).	The Australian Federal Police.
12	A Parliamentary Service employee (within the meaning of the Parliamentary Service Act 1999 ).	The Department in which the Parliamentary service employee is employed.
13	An individual who: (a) is employed by the Commonwealth otherwise than as an APS employee; and (b) performs duties for a Department, Executive Agency or prescribed authority.	The Department, Executive Agency or prescribed authority.
14	A statutory officeholder, other than an individual covered by any of the above items.	Whichever of the following agencies is applicable: (a) if the statutory officeholder is a deputy (however described) of the principal officer of an agency—that agency; (b) if the statutory officeholder performs the duties of his or her office as duties of his or her employment as an officer of or under an agency—that agency; (c) otherwise—the agency ascertained in accordance with the PID rules.
15	An individual who is a contracted service provider for a Commonwealth contract.	Whichever of the following agencies is applicable: (a) if the relevant services are to be, or were to be, provided wholly or principally for the benefit of an agency, or of a party to a contract with an agency—that agency; (b) otherwise—the agency ascertained in accordance with the PID rules.
16	An individual who: (a) is an officer or employee of a contracted service provider for a Commonwealth contract; and (b) provides services for the purposes (whether direct or indirect) of the Commonwealth contract.	Whichever of the following agencies is applicable: (a) if the relevant services are to be, or were to be, provided wholly or principally for the benefit of an agency, or of a party to a contract with an agency—that agency; (b) otherwise—the agency ascertained in accordance with the PID rules.
17	An individual (other than a statutory officeholder, a judicial officer or an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the individual by or under a law of the Commonwealth, other than: (a) the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ; or (b) the Australian Capital Territory (Self-Government) Act 1988 ; or (c) the Corporations Act 2001 ; or (d) the Norfolk Island Act 1979 ; or (e) the Northern Territory (Self-Government) Act 1978 ; or (f) a provision prescribed by the PID rules.	The Department administered by the Minister administering that law.
18	An individual (other than a judicial officer) who exercises powers, or performs functions, conferred on the individual under a law in force in the Territory of Christmas Island (whether the law is a law of the Commonwealth or a law of the Territory).	The Department administered by the Minister administering the Christmas Island Act 1958.
19	An individual (other than a judicial officer) who exercises powers, or performs functions, conferred on the individual under a law in force in the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory).	The Department administered by the Minister administering the Cocos (Keeling) Islands Act 1955.
20	The Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.	The Department administered by the Minister administering the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

             (2)  A statutory officeholder means an individual (other than a judicial officer or an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

                     (a)  the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ; or

                     (b)  the Australian Capital Territory (Self-Government) Act 1988 ; or

                     (c)  the Corporations Act 2001 ; or

                     (d)  the Norfolk Island Act 1979 (except section 51D of that Act); or

                     (e)  the Northern Territory (Self-Government) Act 1978 .

             (3)  For the purposes of item 6 of the table in subsection (1):

                     (a)  a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976 is taken to be a member of the staff of the Ombudsman; and

                     (b)  a person who is a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 is taken to be a member of the staff of the IGIS; and

                     (c)  a staff member of the Australian Commission for Law Enforcement Integrity is taken to be a member of the staff of the Integrity Commissioner.

                 (4)  To avoid doubt, a judicial officer, or a member of a Royal Commission, is not a public official for the purposes of this Act.

70   Individuals taken to be public officials

                 (1)    If:

                            (a)    an authorised officer of an agency believes, on reasonable grounds, that an individual has information that concerns disclosable conduct; and

                            (b)    apart from this subsection, the individual was not a public official when the individual obtained the information; and

                            (c)    the individual has disclosed, or proposes to disclose, the information to the authorised officer;

the authorised officer may, by written notice given to the individual, determine that this Act has effect, and is taken always to have had effect, in relation to the disclosure of the information by the individual, as if the individual had been a public official when the person obtained the information.

             (2)  The authorised officer may make the determination:

                     (a)  on a request being made to the authorised officer by the individual; or

                     (b)  on the authorised officer’s own initiative.

             (3)  If the individual requests an authorised officer of an agency to make the determination, the authorised officer must, after considering the request:

                     (a)  make the determination, and inform the individual accordingly; or

                     (b)  refuse to make the determination, and inform the individual of the refusal and the reasons for the refusal.

                 (4)    A determination under this section is not a legislative instrument.

C. External disclosure

Dreyfus

External disclosure	Any person other than a foreign public official	(a) The discloser believes on reasonable grounds that the information may concern one or more instances of disclosable conduct. (b) On a previous occasion, the discloser made an internal disclosure of information that consisted of, or included, the information now disclosed. (c) Either or both of the following applies: (i) a disclosure investigation relating to the internal disclosure has been completed; (ii) this Act requires an investigation to be conducted under Part 3, and that investigation has not been completed within the time limit under section 52. (d) Either or both of the following applies: (i) if the disclosure investigation was an investigation under Part 3—the investigation was inadequate; (ii) in any case—the response to the investigation was inadequate. (e) The disclosure is not, on balance, contrary to the public interest. (f) No more information is publicly disclosed than is reasonably necessary in the public interest. (g) The disclosure is not contrary to a designated publication restriction. (h) The information does not consist of, or include, intelligence information. (i) None of the conduct with which the disclosure is concerned relates to an intelligence agency.
3	Emergency disclosure	Any person other than a foreign public official	(a) The discloser believes on reasonable grounds that the information concerns a substantial and imminent danger to the health or safety of one or more persons. (b) The extent of the information disclosed is no greater than is necessary to alert the recipient to the substantial and imminent danger. (c) If the discloser has not previously made an internal disclosure of the same information, there are exceptional circumstances justifying the discloser’s failure to make such an internal disclosure. (d) If the discloser has previously made an internal disclosure of the same information, there are exceptional circumstances justifying this disclosure being made before a disclosure investigation of the internal disclosure is completed. (e) The disclosure is not contrary to a designated publication restriction. (f) The information does not consist of, or include, intelligence information.

D. Disclosure to a journalist
Wilkie:

31  When disclosure may be made to journalists etc.

             (1)  This Part applies if a public official has made a public interest disclosure to a person mentioned in section 17 and:

                     (a)  the person has refused or failed to receive the disclosure; or

                     (b)  an investigating entity has refused or failed to investigate the disclosure, other than in accordance with section 26; or

                     (c)  the discloser has not been told within 3 months after the day the disclosure is made whether or not the disclosure will be investigated or dealt with; or

                     (d)  the discloser has been told the disclosure will be investigated but has not been told about the progress of the investigation for a period of more than 3 months; or

                     (e)  the disclosure has been investigated, and

                              (i)  there is clear evidence that 1 or more instances of disclosable conduct mentioned in the disclosure has occurred, or was likely to have occurred; and

                             (ii)  the discloser has been told by the investigating entity that no action will be taken in relation to the disclosable conduct.

             (2)  This Part also applies if a public official honestly believes on reasonable grounds that:

                     (a)  the public official has information that tends to show disclosable conduct; and

                     (b)  there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and

                     (c)  it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.

32  Disclosure may be made to journalists etc.

             (1)  A public official to whom this Part applies may make a public interest disclosure to a person whom they reasonably believe can assist them to ensure that appropriate action is taken in relation to the disclosable conduct.

             (2)  To avoid doubt, a person to whom a public interest disclosure may be made under this section includes a journalist.

             (3)  In this section:

journalist means a person who is engaged and active in the publication of news and who may be given information by someone else in the expectation that the information may be published in a news medium.

news medium means a medium for the dissemination to the public, or a section of the public, of news and observations on news.

33  Limitations on disclosures to journalists etc.

             (1)  In making a disclosure under this Part, the discloser:

                     (a)  must disclose sufficient information to show that the conduct is disclosable conduct, but not more than is reasonably necessary to show that the conduct is disclosable conduct; and

                     (b)  if a public interest disclosure was made under section 17—may inform the person about the progress and outcome of any investigation.

             (2)  Before making a disclosure under this Part, the discloser must first:

                     (a)  have regard to whether the information proposed to be disclosed includes sensitive defence, intelligence or law enforcement information; and

                     (b)  if the proposed disclosure includes such information, satisfy themselves, on reasonable grounds, that the public interest in disclosure of the particular disclosable conduct outweighs the public interest in protection of the particular sensitive defence, intelligence or law enforcement information.

             (3)  Notwithstanding subsection 32(1), a public interest disclosure may not be made under this Part to a foreign public official.