Whistleblower protection through the House, now all up to the Senate

Rob Oakeshott's concern earlier in the week that the Public Interest Disclosure Bill might disappear in the morass of the last weeks of parliament proved unfounded. Or his raising the subject may have had the right effect in ensuring it saw the light of day?

The House of Representatives passed the bill yesterday along with 73 late in the piece government amendments, some of which came from this recent Senate committee report, and just one of a number proposed by The Greens Adam Bandt. 

Mr Bandt's amendment will extend circumstances that allow for a protected external disclosure, for example to a journalist or a member of parliament, without prior internal attempts to bring the matter to attention where there is a substantial threat to the environment. 

Andrew Wilkie struck out on an argument put from the floor for changes close to his heart, including extension of protection for disclosures about parliamentarians or by those who work for them, and for "the careful disclosure of wrongdoing by intelligence officials."

The Attorney General Dreyfus emphasised:

A main purpose of the bill is to establish clear procedures for allegations of wrongdoing to be reported by public officials and for findings of wrongdoing to be rectified. The emphasis on the scheme is on the disclosure of wrongdoing being reported to and investigated within government... A well-implemented and comprehensive scheme should lead to a discloser having confidence in the system, and remove incentive for the discloser to make public information to parties outside government. Recourse for making disclosures outside government should be exercised with reserve when reported wrongdoing is not being properly investigated and rectified, and when other public interests will not be undermined

Despite some reservations about how the bill could have been improved further, there was

praise all round from speakers in the debate for the Attorney General and his work back in 2008-9 as chair of the Standing Committee on Legal and Constitutional Affairs that got things moving, and for forcing the issue over the line finally following his appointment earlier in the year. And for Professor AJ Brown of Griffith University (and TI Australia) and Tim Smith QC and Howard Whitton of the Accountability Roundtable for valuable inputs. 
(Update: AJ Brown highlights key elements on The Conversation.)

Whether the bill and a consequential amendments bill will make it to the top of the pile of around 200 bills on the Senate list is not known, so Mr Oakeshott (who didn't take part in the House debate) and others concerned over the six years of slow progress on this issue still have cause to be nervy for the next week or so.

What the Attorney General had to say about intelligence matters- no protections for the like of Mr Snowden here (or in the US) - and about the more significant government amendments follow.

Intelligence matters.

A public official within an intelligence agency can make a protected disclosure about wrongful conduct in their agency. The disclosure can be made to an authorised officer in the intelligence agency or to the Inspector-General of Intelligence and Security. A public interest disclosure concerning the conduct of an intelligence agency will be required to be investigated and dealt with in the same way as a disclosure concerning an agency that is not an intelligence agency. The activities of intelligence agencies are governed by the Intelligence Services Act 2001 and the Australia Security Intelligence Organisation Act 1979. Under those acts, intelligence agencies must seek a direction or authority from the appropriate minister for agency use of special powers and other sensitive activities for that purpose. The responsible minister must be satisfied that any activity undertaken by an intelligence agency is in accordance with the function of that agency in addition to other factors set out in the legislation.

The purpose of clause 33 of the bill is to make clear that intelligence agencies lawfully conducting activities in accordance with their functions as defined by the Intelligence Services Act 2001 and the Australia Security Intelligence Organisation Act 1979 cannot form the basis for a public interest disclosure. The question of whether or not conduct engaged in by an intelligence agency is in the proper performance of its functions is itself a matter that can be reviewed by the Inspector-General of Intelligence and Security.

The restrictions in the bill relating to intelligence agencies apply to external disclosures. Information that is 'intelligence information' cannot be disclosed outside government and no protection is afforded for any public disclosure of this kind of information. Information that concerns the conduct of an intelligence agency can also not be disclosed outside government and does not qualify for a protected 'external disclosure', but may be the subject of an 'emergency disclosure'. In that case, the restriction on public disclosure of 'intelligence information' would still apply.

The restrictions on public disclosure of intelligence information and the conduct of intelligence information are supported by the risk that very sensitive information could be improperly or unwittingly publicly disclosed. Inadvertent or inappropriate disclosure of intelligence information may compromise national security and potentially place lives at risk. Australian intelligence agencies also have obligations to their foreign partners to maintain the confidentiality of information shared with them.

This Supplementary Explanatory Memorandum describes the government's amendments. The Attorney General referred specifically to

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.