Chapter 4 Committee Comment
The Committee notes the strong support expressed by submitters for a public
interest disclosure scheme. The Committee considers that legislation for public
interest disclosure is overdue and to this end, welcomes the introduction of
these public interest disclosure bills.
The Committee is pleased that, taking into account the recommendations of
the LACA Report, the Parliament is considering providing a means for identifying
and reporting wrongdoing in the Commonwealth public sector as well as ensuring
that problems are rectified.
It is vital that individuals in the Commonwealth public sector are
willing to report wrongdoing and that they are confident that the system will
support them if they make such a public interest disclosure. A robust public
interest disclosure scheme will provide confidence in the Commonwealth public
sector from within and with the Australian public generally.
The Committee believes that public interest disclosure legislation
should operate at the junction between public information and confidential and
sensitive information held by governments. There is a tension, however, as to
where the junction should be located.
The Committee notes that several stakeholder groups would like to see
protection provided for all types of disclosures. The Attorney-General has
stated that the emphasis of the scheme proposed in the PID Bill is to encourage
internal disclosures and provide opportunities for government to identify and
The Committee agrees with the Attorney-General that government should be
given the opportunity to identify and rectify issues in the first instance.
The Committee notes that the Wilkie Bill is broader in its coverage of
types of disclosures and scope of protections offered. This bill is supported
by many of the stakeholder groups representing whistleblowers who have bravely
stepped forward when there has been a culture where little or no protection is
Both bills seek to remedy this situation and to achieve a robust system
that affords appropriate protection to all parties in the disclosure and
investigative process of any alleged wrongdoing.
The Committee notes that a number of issues have been raised in regard
to the different schemes proposed and considers that both bills will benefit
from further parliamentary debate.
While a number of issues have been raised by submitters, the Committee
has not proposed amendments to either bill as it considers it is for the
Parliament to determine issues such as the coverage, definitions, compensation or
other operational aspects of a new scheme. These are policy considerations, and
the purpose of the Committee inquiring into the bills is to provide an Advisory
Report which will assess technical aspects of a bill and aid the Parliament in its
debate and determination of the detail of each bill.
Consequently, for this Advisory Report the Committee has chosen to
provide a detailed summation of the range of comments made by submitters and
witnesses. In many instances, submitters are more critical of the PID Bill than
the Wilkie Bill, and suggest that the PID Bill does not go far enough.
However a number of the issues raised in relation to the PID Bill were
considered at length by the LACA committee (for example Qui Tam and certain
third party disclosures) and were not considered workable or appropriate to the
Australian context. Many other issues raised are reported here although they
would more appropriately be addressed through regulation and standards rather
than legislation. Other issues are beyond what is proposed by a public interest
disclosure scheme but, in the interests of comprehensive reporting of the
consultative process, they are included in this Advisory Report.
It is anticipated that, by providing a summation of the range of
comments received, the Parliament may be better appraised of how a scheme may
function, including its scope and limitations, when debating the provisions of either
bill. It is also intended that, by highlighting the issues raised, the
Parliament has the opportunity to consider amendments to either bill.
On balance, it is the view of the Committee that the PID Bill is more
appropriately situated in terms of providing a comprehensive framework for
public interest disclosures across the Commonwealth public sector. The PID Bill
ensures that reports of suspected wrongdoing are properly handled by agencies
and protects public officials who report suspected wrongdoing.
The emphasis of the scheme proposed in the PID Bill is on disclosures of
wrongdoing being reported to and investigated within government in the first
instance. This approach ensures that reports are responded to and problems are
While a number of issues have been raised, particularly in regard to the
PID Bill, the Committee notes the overwhelming support for the introduction of public
interest disclosure protections. The degree of interest in this inquiry
reflects the urgent need to develop a pro-disclosure culture and an
accompanying protective scheme.
The Committee notes the sixth report of 2013 of the Joint Committee on
Human Rights, and the clarifications
sought in relation to the PID Bill, particularly regarding:
- the prohibition on
disclosures of certain categories of information
- the exceptions to the
use protected disclosure information, and
- the exemptions and
extent of the special arrangements available to intelligence agencies.
The concerns of the Human Rights Committee are consistent with many of
the concerns raised by stakeholders. While the Committee maintains its support
for the PID Bill and the much needed introduction of a public interest
disclosure scheme, it agrees that further rationale for these provisions should
be provided to the House during the course of debate on the Bill.
The Committee considers legislation to be the initial step and the real
work will be in developing internal disclosure processes and raising awareness within
the Commonwealth public sector.
The Committee considers that many of the issues that have been brought
to its attention in this inquiry will be addressed either through the education
and awareness program or the standards developed by the Ombudsman and IGIS.
There is significant scope for the Ombudsman to clarify and provide additional
detail about the majority of the issues identified here.
The Committee encourages the Ombudsman to consider all such issues when
determining standards for the procedures and ensure that public officials are
able to be confident in the operation of a public interest disclosure scheme.
The Committee is of the view that the central role of the Ombudsman’s
office and the IGIS is critical and, should the Parliament implement a public
interest disclosure scheme, then detailed refinement of the Ombudsman and IGIS
oversight roles will be required. The importance of these oversight roles to
the success of developing a culture of disclosure cannot be underestimated. The
Committee notes that both agencies are to be provided with additional funding
to carry out these duties.
In conclusion, the Committee considers that public interest disclosure
protection is long overdue. Noting the complex and challenging nature of the
subject the Committee urges the Parliament to pass the PID Bill, having considered
in detail the issues raised in this Advisory Report.
The Committee recommends that the House of Representatives pass
the Public Interest Disclosure Bill 2013 having given consideration to
amendments based on issues raised in this Advisory Report, in particular:
scope of protections offered where disclosures are made in good faith, though
they may later be found to be false or misleading;
scope and clarity of protections offered for external disclosures; and
scope of protections from reprisals.
In order for the Parliament to have adequate time to consider and debate
the PID Bill, the Committee has made the decision to report early. The
Committee urges its Senate colleagues from the Legal and Constitutional Affairs
Committee to submit their report as early as possible so that both Houses can
have sufficient time to properly consider the proposed legislation.
A public interest disclosure scheme across the Commonwealth public
sector is a significant reform and a critical step in ensuring transparency and
accountability across agencies. Given that the success of the scheme requires
not just legislative change but the development of rigorous internal procedures
and cultural change to foster disclosure across agencies, the Committee notes
the importance of a review to assess the implementation and operation of a
Should the Parliament enact a public interest disclosure scheme, the
Committee suggests that, twelve months from implementation of the scheme, a
review take place to assess its operation. The issues raised in this Advisory
Report should be considered when reviewing the scheme.
Graham Perrett MP