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Wednesday, 11 December 2002
Page: 7751


Senator MURRAY (3:47 PM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

It is with pleasure that I introduce the Public Interest Disclosure (Protection of Whistleblowers) Bill 2002, a Bill to replace the Public Interest Disclosure Bill 2001. Like the 2001 Bill this Bill fills a Commonwealth void. In contrast to most other Governments in Australia there is no whistleblower legislation in the Commonwealth jurisdiction, apart from a profoundly inadequate provision in the general legislation governing Commonwealth employees.

The Bill covers the public sector. It does not address the private sector, although there is a need for similar legislation there. This 2002 Bill seeks to refine the 2001 Bill by addressing issues raised by the Report of the Senate Finance and Public Administration Legislation Committee on the 2001 Bill.

This Bill seeks to meet the pressing need to provide protection for those who speak out against corruption and impropriety. Unlike a number of State governments, successive Commonwealth governments have shown a peculiar reluctance to embrace this principle and establish comprehensive protection for whistleblowers. The Bill rests on the premise that individuals who make disclosures serve the public interest by assisting in the elimination of fraud, impropriety and waste. As such, they deserve protection.

Over the past decade there has been growing recognition in Australia of the need for whistleblowing legislation for the Commonwealth public sector. While the Public Service Act 1999 provides a modicum of coverage for Commonwealth public sector whistleblowers, even so that Act only applies to about half of the Commonwealth public sector.

The objective of this legislation is to provide a comprehensive Commonwealth public sector whistleblowing scheme. The Bill enables a person to report improper conduct in the knowledge that the allegation will be duly investigated and that he or she will not suffer from reprisals on account of disclosing such information. It is a Bill that supports public disclosures and the disclosure makers. It is also a Bill that offers protection to those who have the courage to speak out against impropriety. Finally, the Bill outlines appropriate remedies to ensure the interests of all parties are adequately met.

Current whistleblower legislation is clearly inadequate. It does not protect whistleblowers nor does it encourage employees to report wrongdoing.

Whistleblowers play an important role in ensuring the accountability of government. They are individuals who, by reason of their employment, come across information that reveals corruption, dishonesty or improper conduct at any level of government.

When people bring this information to the attention of appropriate authorities, they must be protected from retribution.

Whistleblowing is frequently the only way that impropriety can be exposed, but this often comes at a significant personal and career cost to the whistleblower. A justified fear of reprisal can stop potential whistleblowers from coming forward. As a result corruption or improper conduct can continue unchecked.

This state of affairs is clearly not in the public interest. While the exposure of improper conduct can be embarrassing for governments, this does not justify allowing such conduct to continue by refusing to protect those who would expose it.

Experience both in Australia and overseas has shown that whistleblowers and their families are often harassed and suffer emotionally and financially as a consequence of the whistleblower having exposed unacceptable conduct within the organisation. De Maria and Jan (1994) examined the experiences of 102 whistleblowers in Queensland. Reprisals were noted in 71% of the sample and included: sacking, psychiatric referral, demotion, being charged and being sued. It is essential to provide a secure environment in which whistleblowers will feel confident in expressing their concerns.

Current mechanisms for whistleblower protection for the Commonwealth public sector were introduced under the Public Service Act 1999. However, this only applies to people covered by this Act and that leaves something of a void, in that there are a large number of employees of various Commonwealth government bodies and agencies who are employed under statutes other than the Public Service Act. In addition, members of the public may pass on concerns about an aspect of the administration of a government agency to the office of the Ombudsman, but there are limitations on the ability of the Ombudsman to offer specific protections to whistleblowers.

Consideration should also be given to the fact that the public sector has changed markedly in the past 20 years, notably with outsourcing and privatisation. There is general agreement that current public disclosure legislation is clearly inadequate, but considerable disagreement on how to remedy this situation. This proposed legislation builds on current Commonwealth legislation and institutions in an attempt to ensure that people are encouraged to make disclosures that are in the public interest, without fear of recrimination. Its provisions would benefit from Committee scrutiny.

The Public Interest Disclosure Bill 2002, like its predecessor, is largely based on the ACT Public Interest Disclosure Act 1994. It seeks to build upon existing Commonwealth legislation and institutions and to address concerns raised by the report of the Senate Finance and Public Administration Legislation Committee (September 2002). The report recognised the need for legislation to address the matter of public sector whistleblowing and supported the general intent of the Public Interest Disclosure Bill 2001. This new Bill addresses the concerns raised in the report, notably the absence of the Commonwealth Ombudsman as an independent authority to receive and investigate disclosures.

Several terms have been defined more specifically in this new Bill. The definition of `disclosable conduct' has been amended to stipulate that a wrongdoing would rather than could constitute a criminal offence or reasonable grounds for terminating services. `Maladministration' is included as a category of disclosable conduct and reference is made to the environment in the definition of `public interest disclosure'.

The terms `agency' and `prescribed authority' have been used rather than `the Commonwealth' and `Commonwealth authority' to refer to Commonwealth bodies that the Bill aims to cover. This makes it absolutely explicit who it is that may be subject to a public interest disclosure. All Commonwealth government bodies now come under the jurisdiction of this legislation.

The direction given in the legislation is sufficiently prescriptive to compel agency and authority heads to investigate a public interest disclosure. The establishment of an independent agency, such as the Ombudsman, provides an additional proper authority to receive and investigate a public interest disclosure and ensures an independent authority will treat the disclosure appropriately. This addresses concerns about the lack of independence of the Public Service Commissioner and the Merit Protection Commissioner. The Bill also recognises individuals considering making a public interest disclosure, as well as those who have made a disclosure, to ensure access to assistance and information about making a disclosure.

Disclosures can be made anonymously and the Bill provides for such disclosures to be received and investigated, and for protection under legislation, in the event of the identity of the person making the report becoming known. This is in keeping with the intention of this Bill to facilitate public interest disclosures and the belief that it is the substance of the report that is of primary importance.

Clause 18 of the 2001 Bill [now clause 21 of the 2002 Bill] has been amended to allow the Public Service Commissioner or the Ombudsman to be alerted to concerns about possible reprisals and /or interference in an investigation and so prevent disclosure being referred to another agency. This clause underlines the importance of an independent overseer who can assume responsibility and also ensures that fear of possible reprisals does not prevent disclosure.

The Bill has added a clause offering indemnity provisions for whistleblowers so that in proceedings for defamation there is a defence of absolute privilege in respect of public interest disclosures. This would not apply to frivolous or vexatious disclosures.

The effectiveness of whistleblowing legislation is dependent on individuals having confidence that legislation can and will protect them. In the event that legislation fails to protect a whistleblower, it must provide reliable remedies. The Bill therefore includes provisions that allow victims of unlawful reprisals to sue for damages.

The Bill allows a person to report an unlawful reprisal to a separate and independent authority (Ombudsman). Extending the role of Ombudsman to include the ability to receive complaints of unlawful reprisals, regardless of whom the initial public interest disclosure was made to, would provide a means by which unlawful reprisals could be independently investigated.

In conclusion, I would reiterate that this legislation is a major step in recognising the vital importance of those who, often at great personal cost, draw attention to wrongdoings in the public interest. It provides assurances that public officials can rely on their disclosures being investigated and acted upon. It provides, in the role of the Ombudsman, an independent and separate authority to receive and investigate disclosures. It offers protection for whistleblowers and in the event that this fails, reliable remedies. It is designed to encourage accountability and openness in all areas of the Commonwealth public sector.

“Whistle blowing is socially responsible dissent. At the very least whistle blowing legislation should honour this democratically enshrined speak-out role that gutsy Australians take on reluctantly from time to time.” (William de Maria— Deadly Disclosures 1999)

I commend this Bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.