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Standing Committee on Social Policy and Legal Affairs

BROWN, Professor AJ, Griffith Law School, Griffith University

DONNELLY, Ms Melissa, Director, Political, Industrial, Research and Legal Unit, Community and Public Sector Union (PSU Group)

FISHER, Ms Karin, Group Manager, Ethics, Australian Public Service Commission

KARDELL, Ms Cynthia, President, Whistleblowers Australia Inc.

LOVE, Ms Margaret, Committee Member, Whistleblowers Australia Inc.

MASRI, Mr George, Acting Deputy Ombudsman, Office of the Commonwealth Ombudsman

NEAVE, Mr Colin, Ombudsman, Office of the Commonwealth Ombudsman

O'KEEFFE, Ms Elizabeth, Director, Transparency International Australia

PERSSE, Ms Louise, Assistant National Secretary, Community and Public Sector Union (PSU Group)

SMITH, Adjunct Professor Thomas Harrison, Chair, Accountability Round Table

THOM, Dr Vivienne, Inspector-General of Intelligence and Security, Inspector-General of Intelligence and Security

WARREN, Mr Christopher, Federal Secretary, Media, Entertainment and Arts Alliance

Committee met at 09:04

CHAIR ( Mr Perrett ): Welcome. I declare open this public hearing of the House of Representatives Standing Committee on Social Policy and Legal Affairs Inquiry into Public Interest Disclosure (Whistleblower Protection) Bill 2012 and the Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2002. I acknowledge the Ngunawal and Ngambri people, the traditional custodians of this land, and pay our respects to the elders past, present and future. The committee also acknowledges the Aboriginal and Torres Strait Islander people who now reside in this area and thank them for their continuing stewardship of this land.

Please note that these meetings are formal proceedings of parliament. Everything said should be factual and honest and it can be considered a serious matter to attempt to mislead the committee. This hearing, as you might have noticed, is open to the public and is being broadcast live, and a transcript of what is said will be placed on the committee's website. Welcome to the witnesses. Rather than take an opening comment from everybody, I believe through a democratic process it has been decided that Professor AJ Brown is going to make a comment.

Prof. Brown : Thank you very much, Chair. I do not believe it was a democratic process at all.

CHAIR: We are the symbols of democracy, and we have chosen you.

Prof. Brown : Thank you very much. It is a great pleasure to be here for what I think is, by definition, a quite historic hearing being conducted by the committee irrespective of when and how the parliament reaches a conclusion on the question of legislative reform in the area of public interest disclosures and whistleblower protection. This is, by definition, an important milestone on that route. So on my own behalf I would like to thank the committee and the parliament for the opportunity to get this issue, hopefully, moving again, or continuing to move with a bit of revived momentum.

CHAIR: Professor, I think we have been here before with another parliament. Mr Neumann and I were on the same the committee, in probably the same room. We have not moved far.

Prof. Brown : I should acknowledge the fact that I had a role in advising the member for Denison on the formation of this particular private member's bill which is before the committee, a role which I was very happy to have. I would also like to acknowledge that quite a number of people were involved in providing advice to the member for Denison on the contents of this particular bill, including the Blueprint for Free Speech, who are represented here today as well. In terms of the situation that we are in, irrespective of the content of the bill, I was also keen to revisit just some of that history, because it was a little over four years ago that the committee conducted its very far-reaching inquiry into whistleblower protections for the Commonwealth public sector, as I think everybody remembers.

CHAIR: Which we might call the Dreyfus report, just for those listening at home, not to be confused with other endeavours of this committee.

Prof. Brown : Certainly. For those who might not remember, at the same time as that inquiry occurred, the then Special Minister of State, Senator John Faulkner, launched the results of the Whistling while they work research, which was about $1.5 million worth of taxpayer funded research into whistleblower protection in Australia, which was of a comprehensive scale that had not been conducted anywhere else in the world.

In saying that I would like to acknowledge the presence here today of Peter Roberts, from Charles Sturt University, who was on that team. I also acknowledge the Ombudsman's office and Dr Thom and Mr Neave in his current capacity, because the Ombudsman's Office, as well as the Public Service Commission—I would like to acknowledge Karin Fisher—were partner organisations in that research, along with many other integrity agencies.

The reason for mentioning that is, partly, because what I have provided to the committee today by way of background, which I hope will be of some assistance, are two documents. I am happy, if this is the right time, to circulate or table them, or whatever you decide.

CHAIR: I think they have been circulated.

Prof. Brown : One is a list of the 10 key principles that I agreed with Andrew Wilkie should form the basis of this bill before it was drafted. Behind that I also prepared for the committee a breakdown of the Dreyfus committee recommendations and the elements of the government response to those recommendations against one of the key outputs from that research, which was the set of 13 principles about best practice legislation in this area, which was part of that report launched by Senator John Faulkner, which formed a chapter cowritten by John McMillan the then Commonwealth Ombudsman and Chris Wheeler the then and current Deputy New South Wales Ombudsman, and an academic colleague Paul Latimer and myself.

The purpose of doing that was to help the committee, I hope, be able to see the relationship between what is in this bill and any other bill that anyone might ever want to draft or introduce, and the government response to the Dreyfus report, the Dreyfus report itself before that, and the principles that emerged from the $1.5 million worth of taxpayer funded research before that.

I was also invited to reflect very briefly on what has remained the same and what has changed during the four years that we have all been waiting for some progress in the legislative sphere on this front. Is that still what you want me to—

CHAIR: Yes. Just clarify. The Dreyfus committee had the inquiry and put out the report. The government put out its response, which was quite delayed—I think that was two years after the report was handed down.

Prof. Brown : About a year.

CHAIR: I am exaggerating. Okay, but there has been no legislative work. Then Mr Wilkie put this in a private members bill.

Prof. Brown : If it is consistent with how you want to conduct the discussion I was going to reflect a little bit on what has changed since the time of the Dreyfus report and the government response in terms of legislative movement in this whole field, because I think it is useful. Since that time there has been significant reform to the equivalent legislation—public interest disclosure legislation—in Queensland, New South Wales, Western Australia and the ACT.

As of the last week or so there has also been a new bill introduced in Victoria. I am not proposing to refer to that very much because it does not move forward in any respect, but there has also been legislative reform under discussion in the UK which may or may not be relevant—committee members may be aware of it—and also in the United States, even just in the last week.

On the three key issues that we always defined from the research and, in the previous discussions and the previous meetings of the committee, as being the crucial ones, I would summarise them as follows. On the question of introducing a pro-disclosure culture and systems and procedures that will encourage people to report wrong-doing internally in the public sector, support them and protect them wherever possible and manage them effectively—many of these relate to recommendation 16 of the Dreyfus committee but also other recommendations—the situation is that there has been some forward movement in many of those other jurisdictions

but that the Dreyfus recommendations and the government response really remain, if implemented, and this bill has sought to do that, ahead of the game internationally, in effect, and as good as the front-end of the game in terms of those sorts of institutional systems and procedures.

The second big issue is the question of when people should be able to go public as a last resort or in exceptional circumstances. That is where with the drafting of this bill and, I think, for any legislation, the game has changed a little because there has been significant amendment on that issue in Queensland, Western Australia and the ACT. We have seen some new and different types of legislative provisions, thresholds and tests introduced there for consideration. They were part of the thinking of this bill. That all relates to recommendation 21 from the Dreyfus committee and the government response to recommendation 21.

The third big issue is the question of effective compensation for people who blow the whistle even if, through the best intentions of everybody, they still end up suffering in their careers, which is almost inevitable and in some cases almost unavoidable. The question then is what are the effective compensation measures. This is where the Dreyfus committee recommendation 13 recommended a particular route to try to strengthen and embed more effective remedial compensation mechanisms in the Commonwealth public interest disclosure regime by using the Fair Work Act, which was then very much in its design. The government rejected that recommendation but has never announced its policy position to fill that hole. That is an interesting and important area because of the fact we have—

Mrs MOYLAN: Could you explain that again?

Prof. Brown : Recommendation 13 of the Dreyfus report effectively recommended that a public servant making a public interest disclosure would be acknowledged under the Fair Work Act. Then in design—

CHAIR: At that time, Deputy Chair, we were writing the Fair Work Act. The thinking was that we do not have to go there because this would be dealt with in the Fair Work Act.

Prof. Brown : Effectively, the recommendation was that a public servant making a public interest disclosure would be acknowledged as a workplace right under the Fair Work Act. Therefore, all the remedial mechanisms, adverse action mechanisms, protection mechanisms and compensation mechanisms from the Fair Work Act would apply to those circumstances. We can talk about the rationale for that recommendation. The key thing was that the government did not agree with that recommendation.

Dr STONE: Did not agree with it or that it simply did not end up being in the bill?

CHAIR: The government said, 'Thanks but no thanks.'

Prof. Brown : It was not agreed. The text of that is in my larger document I have here today. The text of the government response was that the government will consider further other options for dealing with this issue. In repeatedly asking the government over the subsequent three years or so what the policy position was that was going to feel that particular void, there has never been any further information that I am aware of that would enlighten me, at least, to the extent that are relevant.

The purpose of mentioning that is that there is an area where there has always been a gap in terms of the Commonwealth's policy position. This bill attempted to address it by very clearly coming up with a package of compensation avenues, the first of which is based in a set of clarification amendments to the Fair Work Act to effectively achieve the purpose of the Dreyfus recommendation that was made in the first place, but not limited to that.

I really wanted to flag those three major issues and the fact that the ground had moved in different ways on those three issues. Apart from the content of this bill, or any bill, I wanted to record that this bill is in the parliament and being considered by the committee in follow-up to the very good work of the Dreyfus committee, the very good government policy on this position, up until it became unclear what the government policy was, and the work of previous special ministers of state.

I think we should acknowledge the member for Denison for his service to the parliament and to the country by at least putting this parliament in the position where it is feasible potentially to finally complete this job. So I would like to record that I think the parliament is indebted to the member for Denison and that everybody around this table is indebted to the member for Denison for fulfilling that service to the nation and the parliament.

CHAIR: Thank you, Professor Brown.

Mrs BRONWYN BISHOP: Did you help him write it?

CHAIR: It was stated earlier that he did write it.

Mrs BRONWYN BISHOP: Sorry, I was late.

CHAIR: I would like others at the roundtable to make a comment on what are the improvements that they see in the member for Denison's legislation.

Ms Persse : I could start. From the CPSU's point of view we have an interest in this legislation of course because it is our members who may be caught in these situations. We made a submission in 2008 and probably appeared before that committee and we think this is an important piece of legislation, that it is important that there be legislation and that the parliament deal with this matter. We would like to see this happen in this current parliament.

CHAIR: I seem to recall that the Dreyfus committee heard from your leader at the time, Stephen Jones, who is now a member of the parliament.

Ms Persse : Indeed. I am sure the committee will hear from Mr Jones. We think that this bill provides significant improvement to the rights currently available to people under the Public Service Act. The protections in the Public Service Act are very weak. There is a passing reference to whistleblowing as something that people might make a code of conduct complaint about someone else on that basis. There is protection from victimisation in general around a code of conduct but that area of increasing protections and moving into the Fair Work Act is something that we could speak further on either now or later if that would be helpful.

CHAIR: It will be most useful if you could talk about the specific improvements, even pick one or two that you think are noteworthy.

Ms Persse : We have dealt with all those questions so I can go through our comments on all of those points, omissions and improvements, now.

CHAIR: No need to go back through the submission.

Mrs BRONWYN BISHOP: We have just passed a new Public Service Act. It has gone through with the support of the opposition. I would specifically like to hear from the CPSU about how they see the improvements to the act.

Ms Persse : It does go to this issue of code of conduct, a specific regime around whistleblowing. We think it is important that it be made explicit. This has been the way the parliament has been thinking in dealing with those issues. The Public Service Act covers many things. As I say, there is currently a regime where there is a reference to those things. The issue of protections could be improved, we think.


Ms Persse : The issues around the Fair Work Act are relevant there. One thing I want say about improvements is that while presently you can make a disclosure there is not any requirement for that to be investigated. It is the requirement to be investigated that I think is important to the interests of this committee.

For protections, we think there is some merit in looking at the Fair Work Act and at the capacity to define whistleblowing as a workplace right which accrues certain protections. That is an established area of law now, so we think there is merit in rather than creating a new set of legislation that needs interpretation to make whistleblowing a right to use what exists under that regime already. We also think that the remedy should be quick, accessible and affordable. We think that using an existing set of procedures would assist with that. While workplace rights are enforceable and those matters are dealt with, in the end stage at the Federal Magistrates Court there is some capacity to conciliate prior to that, and we think that would be helpful. We would hope accessing remedies would not be necessary but we do think it is important that it creates some final stage.

CHAIR: Prof. Brown was suggesting it was almost inevitable.

Ms Persse : Our experience of these sorts of things in the public sector—people have all sorts of entitlements in their employment—is when you have a final right, it does create an incentive and impetus to deal with those matters and with the culture of the organisation. If what we are looking at is cultural change, the fact that people have an ultimate right to take some kind of action is an important step.

CHAIR: Ms Fisher, would you like to respond?

Ms Fisher : To which particular point?

CHAIR: To my initial question on improvements you see in the legislation.

Ms Fisher : I would like to make some comments not particularly relating to any improvements or not but more to the practical work. I had understood the committee was looking for comments on the practicality of the act. One particular issue that struck the commission in the bill as drafted was section 22, which relates to the investigation of disclosures where they concern an agency head. We think it is important that as an overriding principle whatever bill you have for public interest disclosures should work alongside the existing frameworks in the Public Service Act and not disturb them. For example, in the Public Service Act there is a significant role for the Public Service Commissioner and also for the Merit Protection Commissioner to a lesser extent in the maintenance of standards of conduct in the Australian Public Service. This role includes, for example, evaluating the extent to which agencies incorporate and uphold the values and the adequacy of systems and procedures in agencies for ensuring compliance with the APS and code of conduct, for promoting the values in the code of conduct and for issuing binding directions on basic procedural requirements for conducting code of conduct investigations.

One important existing function in the Public Service Act for the Public Service Commissioner is the function of inquiring into alleged breaches of the code of conduct by agency heads and reporting on the results of such inquiries, including where relevant recommendations for sanctions to the appropriate authority. The appropriate authority is usually the relevant minister and, in the case of secretaries, the Prime Minister. I think with the bill as drafted there might be some difficulties with the commissioner being able to fulfil his existing responsibilities in that regard. There are powers that presently exist in the act so you do not really need to create new powers in the public interest disclosure bill we are looking at today.

You might therefore have assignment to another officer, such as the Commonwealth Ombudsman or the Inspector General of Intelligence and Security, with the powers that already exist for the Public Service Commissioner. That might be confusing, open to different interpretations, wasteful of resources and generally not good public administration. So I think there are some problems with the bill as drafted in terms of how it sits with the existing Public Service Act and the Public Service Commissioner's powers in that.

As has already been mentioned, there is an existing and more limited whistleblowing scheme that applies in the Public Service. So, in terms of the practical operation of the Public Interest Disclosure Bill, we need to think very carefully about how that would operate within the existing scheme. I note that the consequential and transitional provisions to this bill do not repeal that scheme. So you would need to think about how the two schemes fit together if employers are going to understand how they are expected to operate together.

CHAIR: Would anyone else like to make a comment?

Ms Kardell : There are things that are good about the bill. I am from Whistleblowers Australia so I come from quite a different perspective from most of you at the table. I have been with Whistleblowers Australia since 1994, so I have watched a lot of whistleblowers come and go and come to our organisation. The continuing refrain from most whistleblowers is that if you are a compliant, deferring whistleblower then you are safe—this is my preamble and where I start from—but if you are a confident whistleblower who has done a bit of research about what your rights may be and what the legislation might say then you are not. I place myself in the latter category because I turned up at the ICAC in Sydney on the first day that the Protected Disclosures Act took place and they were all very surprised. It is the whistleblowers who are keen about this legislation and keen about their situations who get into trouble.

There are some good things about this act. It is the language, I think, that gets a tick from Whistleblowers Australia. That starts with the objects of the act, which include things to do with ensuring protection, ensuring support and ensuring that investigations are done appropriately and well. They are the two key areas where most other acts still fail. Most other acts do not rely on that sort of terminology and I think it would be very helpful in the future if we have a federal act that shows the lead and does that. That language in the objects is reflected throughout the act, which I think is a very good thing. I would say to the drafter that I would like the objects to reflect the public interest, rather than omit it and concentrate simply on strengthening public integrity. I would have liked to have seen it say that it will promote the public interest by strengthening public integrity and doing the rest of the things that are listed. I say that because I have looked around the rest of the jurisdictions. The New South Wales act still has the aim of simply encouraging and facilitating disclosures, which is a very poor cousin—or would be if this bill gets up.

On defining a public interest disclosure as 'an honestly held belief on reasonable grounds'—and I will not go any further than to say that those grounds are fairly well accepted as being reasonable—we do not have any problems with that. We do say—and I will come back to it at the end, when we are talking about what we would like to see change—that the public interest disclosures should not be confined to disclosures made by public officials. This committee would be wise to look to one of the very first acts, and that is the South Australian act.

Nothing has happened in the South Australia. Nothing has fallen in. They have not been overtaken by hordes of marauding whistleblowers. It simply says that a person can make a disclosure. I think that the federal jurisdiction is the one which should put itself in the position of showing a lead to the rest of the jurisdictions, and I would like you to think about that.

CHAIR: Do you think that would help set the culture in the nation?

Ms Kardell : I really do. I think that it should just become something that we do as a nation: that we look to the public good, that we nourish and cherish our institutions and we do what we can to keep them safe and strong. That is basically why whistleblowers blow whistles.

Mrs MOYLAN: What role really does black letter law play in changing culture?

Ms Kardell : In New South Wales I have seen it do that, and I would say that it has. It has done that because the Ombudsman's office was giving a strong role in driving the agencies to put in place procedures and processes and to basically educate the populace, if you like, from that position. It has had a big role in New South Wales.

I have got criticisms and I think that it could be done better, although I do not complain or criticise the Ombudsman. I think that the Ombudsman and the standing committee, conceived to push the culture along and educate New South Wales people, was a very good idea. It has achieved that. Black letter law also infuses the debate. It is the framework around which we operate. So to have that clear and considered and appropriate, is very important.

Mrs BRONWYN BISHOP: I would like to get to some specifics. I will put my position on record. When I was a young Liberal, I was very much part of the movement that fought to have an ombudsman appointed. We had to explain what it meant. John Madden was very much part of forcing it through and I think it was the Askin government that actually finally did it. As the young Liberal I was very much part of the movement to have an ombudsman appointed. We had to explain why it mattered, so I have always been interested in these issues. When you are talking about protecting people other than those currently protected, I want to know who those people are. Who is it that you are wanting to broaden the base to include?

Ms Kardell : In the last year I have received two phone calls from two very different quarters of the community. One was—and it is not the only one I received from an area like this—from a parent, a parent who was part of a P&C, had a fairly senior role in the P&C and was intimately involved with their local school and the goings-on and the policies and procedures that were put in place. That person became aware that the principal was involved in running a consultancy from these principal's office. The parent has no standing. She went to the police and was told to go away because she had no interest in the process. She was not at the end of the rort and so she could not get anybody really to look into it. So there is a person—

Mrs BRONWYN BISHOP: Did that person go to her member of parliament and raise that question and say, 'I want you to raise that for me'? That is the proper way to go.

Ms Kardell : I am not sure whether that person did, but it is something that I would advise because there are avenues. But equally, if you are willing to have someone go to a member of parliament, then why aren't you willing to recognise that a person anywhere in our society can bring forward information which, if investigated, would have the effect of righting wrongs, and that one would surely be a wrong?

Mrs BRONWYN BISHOP: Because there is provision now for that to happen. I can tell you, as a member of parliament both as a senator and a member in this place, that I have many, many people come to me in those exact instances and talk to me about it and I have taken up those causes. One case which seems to be missing from all of this—and I am interested why Griffith University has not, because I have not found it—is the Heiner affair, which as a whistleblower issue is huge.

The other one that is a huge issue is the Ms Sneddon case. Ms Sneddon was the whistleblower in the Orkopoulos affair. She was mercilessly punished until Barry O'Farrell gave her some compensation, and she had a win in the court the other day. But years have gone by. Those sorts of things are desperately important.

And I can give you another example of people who were adversely affected by public-sector behaviour—a family, the Midford Paramount case. It took four years but we eventually got a compensation payment for that family of $20 million.

This legislation would not have helped any of those people.

Ms Kardell : There are all sorts of ways to go about all sorts of things. Having been part of Whistleblowers Australia for 20-something years, I know most of them. Going to your MP is a very indirect way of dealing with the issue.

Mrs BRONWYN BISHOP: No, it is very direct. That is what they are there for.

Ms Kardell : It is helpful.

Mrs BRONWYN BISHOP: It is more than helpful; it is effective.

Ms Kardell : You can raise issues, it can get you into a Senate estimates committee and it can get the issue ventilated, but there is no-one who has an obligation to do something. This bill would achieve that.

Mrs BRONWYN BISHOP: No, it would not.

Ms Kardell : There would be a body of people who, on receipt of a piece of paper or an oral statement, would be in the position of having to do something. In the political process, although members of parliament are well-meaning and helpful—

Mrs BRONWYN BISHOP: Thank you very much!

Ms Kardell : Generally speaking.

Mrs BRONWYN BISHOP: That is very kind of you!

Ms Kardell : I am not being kind; I am being truthful.

Mrs BRONWYN BISHOP: Condescending.

Ms Kardell : It is not a direct route and this is what this is about.

CHAIR: Well, it is. We did hear evidence in the Dreyfus inquiry, from Eddie Thomas on Dr Patel. That was certainly a Queensland experience and it was completely different to the Heiner one.

Mr NEUMANN: I am interested in hearing from Dr Thom and Mr Neave, and anyone else, in relation to the external role of the Commonwealth Ombudsman in other than intelligence matters and security matters for the IGIS. The chair and I were very instrumental in pushing very hard in the Dreyfus committee for the roles that we were suggesting and the recommendations. I am interested to hear what you have to say about this particular legislation, both of you and anyone else. I am particularly interested in what the Public Sector Union says about it.

Mr Neave : I can make two quick points. Firstly, the office is very supportive of any legislative proposal which leads to more effective and efficient public administration and setting up a regime whereby issues such as this can be raised. As far as the office is concerned, it is a very good thing. Having a regime where issues are raised with the head of the agency, in my view, tends to lead to fewer complaints coming to my office. My general philosophy is that agency heads are responsible for dealing with complaints and issues and the Ombudsman's Office—and I am speaking very generally here—should really be a safety net rather than something which always deals with complaints. My general philosophy is that complaints belong to the agencies, but disputes belong to the Ombudsman. That is when he or she should become involved.

The second general point I would like to make is that this bill gives responsibilities to our office which are, in principle, not dissimilar to what we have in relation to a whole range of matters just at the moment. It would be a different jurisdiction, but, let's say, not unique to the experience which already exists in the office, such as our other monitoring roles and dealing with complaints—all the other very interesting roles which I found my first few weeks in the job. It is certainly very compatible and we would be happy to take on responsibilities, with the caveat, as usual, that additional responsibilities would need significant resource reallocation or we would perhaps need some new resources. They would be the general comments I would make in response to the question.

Dr Thom : I will not repeat Mr Neave's comments. I would just say that my office is perhaps less known than the Commonwealth Ombudsman. I have jurisdiction in reviewing the activities of the six Australian intelligence community agencies, including ASIO, ASIS and the Defence intelligence agencies. I review them in terms of compliance with Australian law, propriety and respect for human rights. The issues to do with maladministration, misconduct and corruption really align with the sorts of things that I look at already. I think is quite appropriate and its aligns with our current functions, as with the Commonwealth Ombudsman's functions. We were given the oversight role. I am particularly pleased that agencies are encouraged to deal with the matters internally first and then we would review them and follow them up with them. We would also be instrumental in educating the agencies and promoting the new functions in the agencies.

I do have an interest in the protection of national security information and I will just draw the committee's attention to this matter. I think that matter is a bit different to state and territory legislation in that there are broader issues to do with national security information in the Commonwealth compared to the state and territory authorities. I will just note the provision in the legislation that allows a person to disclose sensitive information when they themselves believe that the public interest in the disclosure outweighs the public interest in the protection of particularly sensitive information: it would be quite challenging to the discloser to make that kind of assessment. If I was to make that kind of assessment, I would have to engage fully with the agency to understand the damage that disclosure could cause. I think that is an area that the committee might want to look at.

CHAIR: There was no WikiLeaks four years ago when we did this inquiry, so would you like to make comment on how that has affected the landscape? I might hand over to Mr Wolfe in a minute but other people may like to contextualise.

Mr NEUMANN: I did want to hear what the union had to say about those issues, and I wanted to do that before I finish. This is the issue about the role that was recommended in the Dreyfus report for the Commonwealth Ombudsman and the IGIS, and it has been picked up by this bill.

CHAIR: And then we will come back to you, Dr Thom.

Ms Persse : We do support those bodies having an involvement in the scheme, however it ends up being formulated. We would support the requirement, as Mr Neave suggested, for agencies to produce and have their own internal procedures. We think that the Ombudsman ought to provide guidance about those agency procedures. There should be some consistency. In the bill it is not clear who ticks those procedures off. We think the Ombudsman should look at those as well, partly from a practical point of view because having to deal with many different sets of those is important. We think that is the appropriate place, and again it goes to that idea I mentioned earlier of having an escalation process. If you are looking to drive cultural change, we think that is an important element. One thing I might add is that in the bill the definition of 'agency' is unclear. We talked earlier about the Public Service Act. Of course, not all public moneys are expended through agencies under the Public Service Act, so we think that needs to be clearer—and there is reference other parts of the bill to statutory agencies. Also, state government employees are increasingly working in COAG arrangements, and we think that this bill ought to reference them. We know these things can get tricky, but we think that should be clear. Basically we do support that notion of escalation of the Ombudsman and the Inspector-General of Intelligence and Security being involved in these matters as a step in the process and then, if someone is not satisfied, further rights beyond that.

CHAIR: Dr Thom, would you like to comment on the post-WikiLeaks world? Has that changed the culture? I might ask Professor Brown and then I might hand over to Mr Wolfe.

Dr Thom : In terms of national security information I think it really is for the intelligence community agencies and their parent departments to make policy comments on those rather than myself. But I do want to say that it is a bigger issue in the states and territories.

CHAIR: Mr Neave, I forgot about you.

Mr Neave : I just wanted to add one quick comment. In my previous experience in a different ombudsman role I came across quite a lot of issues and confusion around where someone should go when they have a matter that they wish to raise. I accept what the Public Service Commissioner said before, that perhaps the committee might also look at anything in the bill which creates any confusion about where someone ought to be going because I think that can be difficult. It can dissuade those who wish to do something about something if they are a bit confused about where they should be going. I just wanted to add that point to what I was saying before. I cannot offer any specific change to the legislation to deal with that issue, but I think that the point that the Public Service Commissioner made was in principle a good one.

CHAIR: Yes, but it is the eternal conflict, isn't it, of the problem being the chain of command.

Mr Neave : Yes.

Mrs BRONWYN BISHOP: Professor Brown, I have received an award for whistleblowing from a body associated with your university. That was from the work I did on the Heiner affair, which is still not resolved.

CHAIR: It might come up in the children's commission of inquiry in Queensland; you never know.

Mrs BRONWYN BISHOP: Well, there is an inquiry up there now.

Ms Kardell : I can assure you that it will come up in the inquiry.

Mrs BRONWYN BISHOP: I have acted for a lot of whistleblowers, so I found the case of Ms Sneddon actually starting to test the law by taking legal action quite important in this whole area. I think the decision of the Court of Appeal, in which they held that the State of New South Wales is vicariously liable for the injuries suffered by Ms Sneddon is really quite a milestone step. I wondered if you had looked at this case and the way it had taken, because I am reminded of six policemen who came before me in a crime inquiry who had been through the PIC and all the bodies that are set up to try and protect their whistleblowing rights. They were stopped at every case. Indeed, they tried to stop them from giving evidence, but they managed to do that. But they did not take it further, and they certainly suffered. One young policeman, I recall, suffered quite dramatically because of action—

CHAIR: Ms Bishop, I remind you of the legislation in front of us in terms of—

Mrs BRONWYN BISHOP: Yes, but what I am interested in what is real protection. I personally think that the Public Service Act has gone a long way, and I think that the bodies that are represented here today will have an important function. But I am interested in things that are in place now: legal action that you can take, particularly the ramifications of this case law on the whole area of whistleblowers, which I think is more important than introducing more black letter law.

Prof. Brown : That is an excellent question. I should just say for the record that I believe the award you were given was from Whistleblowers Australia at their national conference at the University of Queensland, as opposed to our group, but I was present and I do remember it. The issues you are identifying, in terms of who is covered and who should be covered by a whistleblower protection regime, and the significance of those legal cases for compensation, are all absolutely valid and absolutely on point. In terms of the protection of the individuals you mentioned, the result of the Dreyfus inquiry and the government response—and I support this—is that to have a very well tailored whistleblower protection regime it needs to be tailored to the jurisdiction, especially the employment jurisdiction that you are trying to effect.

This bill, as per the Dreyfus committee report, is limited to the Commonwealth public sector and Commonwealth employment. But exactly the same equivalent types of protection should be available in every environment. They should be there for private sector employers, they should be there for employees and officers of civil society organisations and they should be there for employees, officers of unions, industrial associations and organisations. But as to whether you put them all in the same piece of legislation or whether you embed them in the legislation that applies to each of those is the question, there are different schools of thought on this. My view, having looked at it a lot, was the same as it was in the original Dreyfus committee inquiry—that is, the way to embed this in the Commonwealth public sector is to make this a scheme designed for the Commonwealth sector, tailored and possibly finessed more than this bill.

Mrs BRONWYN BISHOP: I understand that. What I am saying is that the principles in the Sneddon case can apply federally as well.

Prof. Brown : They can, and this particular bill is significant on the issue of the Gillian Sneddon case because the Dreyfus committee recommended that member of parliament staff should be covered by the scheme—so parliamentary and ministerial staff should be covered by the scheme. The government did not accept that particular recommendation. This bill goes back to the Dreyfus report and attempts to put ministerial and parliamentary staff back in.

Mrs BRONWYN BISHOP: And I note the submission says they should be left out.

Prof. Brown : Sorry? No, my—

Mrs BRONWYN BISHOP: Not yours?

Prof. Brown : No. I am not sure whose. I am sure people are very welcome to argue that. The question in my mind is: if they were left out, how else are they going to be covered? By the new parliamentary integrity commissioner act or regime or whatever?

Mrs BRONWYN BISHOP: That is exactly why I am talking to you about the importance of case law and the other avenues that are available but have not been discussed anywhere.

Prof. Brown : That is right—well, they have been discussed to an extent. The cases you referred to are extremely important because what they demonstrate is that, with a great deal of cost, pain, delay and legal firepower, it is possible to assert your rights to compensation for mistreatment as a whistleblower at common law. That is what has happened in New South Wales in all the major cases. At the end of the day the rights are there, and at the end of the day, with enough time, energy, delay and legal firepower, you can assert them and get compensation, as you should.

Mrs BRONWYN BISHOP: But that applies to every citizen, because of the volume of work of the courts.

Prof. Brown : Yes, but the purpose of good whistleblower protection legislation is to increase the chances that those who have suffered reprisals, detriment or adverse treatment in the workplace as a result of this do not have to fight for five or 10 years through legal firepower. So that is my response to your question.

Mrs BRONWYN BISHOP: How would this legislation have improved the position of Mr Lindeberg in Heiner?

Prof. Brown : Potentially in a number of respects. I am happy to talk about the detail of Heiner, but I am not sure that that should dominate the committee's time.

Mrs BRONWYN BISHOP: But this is a cause celebre that has been going on all over those years. The reason I did the report is that Mr Lindeberg came to me. Indeed, we did something quite unusual: we actually subpoenaed Mr Heiner to come along. It had not been done before, I think. Again, with Mr Wilkie himself, how would this legislation change Mr Wilkie's position?

Prof. Brown : Because it would have given Mr Wilkie the opportunity to seek compensation for any detriment suffered for his disclosure, which he otherwise would not have had.

Mrs BRONWYN BISHOP: But that goes right back to the role of the inspector-general.

Prof. Brown : Those are linked. Anyway, I think that, for the reasons that the CPSU have identified and that were identified in the original Dreyfus report—

Mrs BRONWYN BISHOP: There is no trade union for the Defence Force, nor will there ever be.

Prof. Brown : The key is whether people should have to fight those sorts of long battles either to get things investigated or to seek compensation that we all agree they should have a shot at being able to access. So the whole purpose of the bill is to streamline those processes so that people have a fighting chance.

Mrs BRONWYN BISHOP: So you are saying this bill would override the national interest question and the inspector-general with regard to someone from the Defence Force?

Prof. Brown : No. It would, or should if well designed, provide the framework that would clarify what the balance of public interest is and how it should be resolved for the purpose of enabling the public interest to be satisfied so that people would be able to go to an independent umpire—that is, the court or tribunal that is involved—and be able to say, 'This was in the public interest and therefore the legal consequences should be changed or the remedies or compensation should be available.' They would have the right to be able to do that based on criteria that were available under the common law in previous generations but which are no longer available under the state of law in this country today.

Dr Thom : We are really talking here about the legal protection for disclosers and any kind of damages that they can obtain. Is that the issue?

Prof. Brown : I think that is the guts of where the question was going.

Dr Thom : Under my legislation I can conduct inquiries and investigations. If I believe that somebody has suffered detriment, I can recommend that they receive compensation, but that then is the end of my role; there is no way of enforcing it. In fact, it is up to the agency to decide whether compensation is payable. So I think that is the thing this bill adds that is not currently in the legislation that I conduct inquiries under.

CHAIR: Dr Stone has been waiting very patiently.

Dr STONE: I am interested in the capacity of this bill to look after the interests of Defence Force personnel. We have had the recent significant inquiry with lots of allegations perhaps more in relation to assault, sexual discrimination and so on. Are you satisfied that the bill is able to assist someone who is not sure whether they should go down the protection of the whistleblower line or whether they should just simply present themselves as wanting to have an investigation of, say, rape or whatever. I am interested where that happens in Defence.

The other question is: as Ms Persse said, we should make sure that the whole process is accessible and affordable. When does the person wanting to whistle blow get advice about legal support being able to be provided? If they are salaried they are not going to get access to legal aid. How do we ensure that they are not constrained, by not being able to pay for good legal advice?

CHAIR: It is theoretically available.

Dr STONE: But how does that happen? If I am a public servant earning $70,000 a year and am not sure whether I should say what I know and would like some legal advice about that, how does that happen?

Ms Kardell : There is no-one who can give you advice except a solicitor and perhaps your union's solicitor. Through a union mostly there is an hour or an interview. Beyond that any advice or legal assistance you might get from the union will depend very much upon whether the union takes up your case. Unions in my experience do not really want to pick up every matter that comes to them. They pick and choose a bit. So the answer is there is nowhere. You can buy it.

CHAIR: I have worked for a union. The focus of the union was looking after the members' interests, not necessarily the institution's interest. Often they coincided. If there has been corruption in the institution, that is for the director to look after, whereas the union's focus—and I would be interested to hear from the CPSU—

Ms Kardell : My experience is that it is very patchy in unions, but we are not here for unions. I will refer to one whistleblower. Most of you might be familiar with the name at least. Mr David Reid blew the whistle on contamination incidents and safety procedures at the Australian Nuclear Science and Technology Organisation. His union has treated him poorly. I am intimately involved with his story. I have mentored him. That is one instance. It is a very patchy business. It is like most things. People will be people. Unions are run by people. Their interest in maintaining a relationship with the employer will often tip the balance over and the person will not get any help, particularly if it goes on and it is causing problems. It is a very patchy business.

So where do you get legal advice? You go and buy it if you can afford it or you go to whatever other organisation might be around. So there is not any process within the organisations themselves in New South Wales, my own state, in so far as public interest disclosures are concerned. The provision of legal advice does not exist—and maybe it should and maybe it should not; I do not know—but in the course of making a disclosure that is not something that is canvassed. It just does not happen.

Ms Fisher : You would normally expect Australian public servants to go within their own agency for assistance, but if they do not feel comfortable with that, while we cannot offer legal advice, the Ethics Advisory Service within the Australian Public Service Commission does offer a telephone and email helpline to any public servant considering, for example, making a whistleblowing report. They can ring us or email us—

Dr STONE: You can give them advice about whether it is a sexual assault charge or a whistleblowing type procedure.

Ms Fisher : We can give advice about the values and the code of conduct, and about the different avenues available to public servants for bringing forward an issue. We put it into context for them—they are able to tell us their particular circumstances and we then tell them: 'Well, these are your options', but we do make clear it is not legal advice.

Dr STONE: And that is confidential advice, obviously. You do not report on it.

Ms Fisher : We do say it is confidential as far as the law allows. And we do record those queries that come to us. The Public Service Commissioner reports on them annually.

CHAIR: It is from outside their department, so it is a voice they can trust.

Ms Fisher : Yes.

CHAIR: Mr Wolfe, would you like to make a comment?

Mr Wolfe : I just want to return to what the deputy chair asked before, which is how the black-letter law might be able to change the culture of whistleblowing. I think it is important both substantively and procedurally with respect to how it enlivens the compensation provisions available under the Fair Work Act. That is important for two procedural reasons, the first being the availability of the forum of the Fair Work tribunal, Fair Work Australia. Obviously, that has cost ramifications for an applicant who brings an action there seeking to enliven their protections, or to get a compensation where someone has taken detrimental action or someone has unfairly dismissed them. That is the first point. The second point is the costs. If one were to bring an action in the Federal Court or the Federal Magistrates Court, this bill enables an applicant to use the provisions of the Fair Work Act whereby if they bring an action they are not liable to bear the respondent's costs, unless they make a vexatious claim or act inappropriately in the course of the proceedings.

Those are two black-letter additions which make it easier for a whistleblower to come forward and seek their own protections. That is really important in the sense of incentivising and encouraging whistleblowers to come forward. That is the point I wanted to make.

CHAIR: Okay. Thank you.

Prof. Brown : In answer to those very important practical questions that Dr Stone was asking, I just wanted to point out that the purpose of any bill, and hopefully the purpose of the provision in this bill, is that you would drive the responsibility to explain complaint avenues and remedies as much as possible down into the agency, as Ms Fisher said—because it is the agency that is being forced to get on the front foot here and prevent it becoming a problem by doing the right thing.

At the time that the committee reported, I think the Ethics Advisory Service was only just in conception even—or might have just been set up, I am not sure. Anyway, when the inquiry was going on, I think it was very much in its inception. The Dreyfus committee recommended that part of the role of the Ombudsman's office would be to be the public information source, where public servants could go to get all of that advice. That specific role has not been written into this bill, I think partly because it is one of those operational issues that is dependent on interagency collaboration and on the system working as a whole.

There are provisions in this bill for trying to ensure that the system and the roles of the agencies are complementary rather than conflicting—and I suspect it would only take a very small number of amendments to deal with, for example, any of the sorts of issues that the APSC suggested at the beginning. I think the intention is already in there; it is a question of exactly how it is prosecuted. It really becomes a technical issue. I think some of those sorts of issues basically become operational issues—and that the bill will force the establishment of a system that will then require those operational issues to be sorted out in terms of mutual assistance and an agreed framework between the Ombudsman, the IGIS and the APSC for who provides that information. It may still be the Ethics Advisory Service.

On the broader question of legal support, it is a really big issue. One of the really welcome things about the active role that the CPSU have played in this debate all the way through is the acknowledgement that the unions have a positive role to play—not just defending those who are subject to allegations of different sorts as a result of whistleblowing but also the whistleblowers themselves.

Part of the rationale for making the remedies more accessible is that it should actually create a new niche in the legal-services market that does not currently exist because nobody goes hunting for these remedies. Because it is so impossible, there are no lawyers who are interested in doing it. Once we change those dynamics, more lawyers will be interested in doing it and more lawyers will be interested in providing easy, cheap, efficient advice more readily. We have a very different situation here from the United Kingdom or the United States as a result of that.

Ms O'Keeffe : I am here representing Transparency International Australia. Just for the record, Transparency International is the pre-eminent global coalition against corruption. It has about 100 chapters across the world, of which Australia is one. I want to raise the issue that whistleblower activity is a matter which has been addressed by Transparency International at an international level. Transparency International has developed some draft principles in relation to protected disclosure and whistleblower protection. I wanted to make the point that the legislation that is before you is absolutely consistent with those principles, which is helpful for us. The second point I wanted to make is, to take up what appears to be a bit of an undercurrent here about whether you need dedicated legislation or you want to fix existing legislation—

CHAIR: It is a bit of a moot point when we are inquiring into the legislation.

Ms O'Keeffe : It is a moot point but I just wanted to make the point that we fervently believe that dedicated legislation is really important for a whole host of reasons, some of which have been canvassed here already today—including things like cultural impacts and better law. I also think it is possible to argue, for the purposes of clarity and, if you like, seamless application of the legislative frameworks, that dedicated legislation in this case would probably improve public administration. I will leave it there.

CHAIR: Thank you, Ms O'Keeffe. We might hear from Ms Bishop, then hear from Mr Warren.

Mrs BRONWYN BISHOP: I think it is helpful to look at specific things when we are talking about generalities. With regard to unions, how would this legislation have helped Kathy Jackson in the HSU?

Prof. Brown : I will answer if you like. It would not have applied to employees of unions. It applies to Commonwealth public sector employees, contractors—

CHAIR: The definitions—

Prof. Brown : Yes, so that is its jurisdiction.

Mrs BRONWYN BISHOP: I am specifically asking about its link to Fair Work Australia—to the industrial court. So it is irrelevant.

Prof. Brown : Yes. I would endorse that there are elements of this above protection that are stronger in some elements of the industrial relations legislation, in terms of protections for employees of unions in dribs and drabs. I would be the first to say that there should be consistent principles with this and remedies available, under any jurisdiction, for any employees and members of any organisation; but my assessment is that this legislation should be for Commonwealth public sector employees, contractors and members of Commonwealth organisations.

Mr Warren : I note a lot of the discussion has been about whistleblowers around what I think Professor Brown described as the first and third points of the legislation. Obviously, our key interest is the second point—that is, disclosures to third parties, particularly disclosure to journalists and the media.

We obviously welcome this legislation. It is the important third step of the four key steps for reform. The others have been further information and protection of sources, which have already occurred.

I think that there will always be a debate within the media about whether this legislation goes far enough in legitimising the circumstances in which a person would effect an unauthorised disclosure to a journalist. I guess that is partly our fault, because I think there is an assumption that all journalists make which is that any public servant who talks to them is automatically a whisteblower and should be granted full protections. This legislation is a good step forward. We think it is actually better than the Dreyfus committee recommendation and we would welcome it. There are two points.

You asked a question specifically about WikiLeaks. I do not think WikiLeaks materially changes the situation. There is a global debate about what WikiLeaks is. Interestingly, in Australia, I think it is generally treated by the media as another media organisation and therefore should be entitled to the same—

CHAIR: As in that web entity is another media organisation?

Mr Warren : That is right, yes. To be fair, I do not think that is the orthodox view within the media in North America, for example. Bill Keller from the New York Times has characterised WikiLeaks as a source, which I think is both wrong and dangerous. But in Australia I think there is a subtle consensus within the media, for what that is worth, that it is another media organisation and should be entitled to all the same rights and have the same obligations as any other media organisation. So to an extent it is relevant and may be relevant to the definitions of 'journalist' or 'media organisation'. But I do not think that is really a matter for this legislation. I guess the other reason it is relevant is that that it is more relevant to the member for Denison's previous legislative foray, which provided protection of sources.

CHAIR: Can we go to that, because the definition of 'journalist' in that legislation did not say—I in fact tried to have that legislation changed, such that it was somebody who signs up to the media's—

Mr Warren : Code of ethics?

CHAIR: code of ethics. But Mr Wilkie was not receptive to that—or the timing was bad, I think, to be fair to him. So now almost any blogger in Australia could be covered by that protection. Would you like to make any comments on the definition of 'journalist'? You have just said that WikiLeaks should be treated as a media organisation.

Mr Warren : Defining 'a journalist' is always very difficult. I think we would say the key test should be not, 'Is the key person doing it a journalist,' but, 'Is what is occurring an act of journalism,' which may then be done by a whole lot of people or organisations. This is an issue that, as I am sure you know, has been discussed in a—

CHAIR: What if it is a public servant blogging on the weekend about material, not breaching their non-disclosure duties as a public servant but just blogging generally about stuff?

Mr Warren : I think that is already being determined, hasn’t it, that that is not a—

CHAIR: They are not a journalist?

Mr Warren : Well, they are not necessarily doing journalism. They may be doing journalism but they are not necessarily doing journalism. The classic example is the Greg Jericho case. I do not think that he would hold out that he was doing journalism, certainly not when he was a Public Service employee and blogging. He is perhaps a different position now. But, when he was a public service employee and blogging after-hours, I do not think he held himself out to be either a journalist or to be practising journalism.

CHAIR: Okay.

Mr Warren : There are two points that I want to put on the record because they are about the context of this legislation. The first is—I have talked about the four legs, of which this is the third, and the fourth one, which I know was not part of the remit of this committee but I want to keep it alive—the implementation of the Gibbs committee inquiry into the Crimes Act in the early nineties, which proposed that unauthorised disclosure of information should be decriminalised other than in national security circumstances, which I think is a critical part of the cultural shift necessary to open this up.

The second point, which relates to compensation, is: what would happen to people who had been disadvantaged prior to any legislation coming into effect? We have been particularly concerned and involved in the case of Allan Kessing, for example. As a disclosure of interest, we have paid a significant part of his legal fees. Also, he obviously denies being a whistleblower.

But the question that the government will need to consider in the context of cultural change is: what is the appropriate compensation that can be made to people who have been penalised in the past but might not have been penalised if this legislation had been in place? I know there seems to be some difficulty under Australian law and practice about pardoning people who have been convicted. It is not an area I am at all an expert in, but if this legislation does become law then we believe the government should consider the circumstances of whistleblowers retrospectively affected as well.

CHAIR: For those listening, I should point out that the Press Council would have been here but for the Leveson inquiry report coming out, which means they are a little bit busy at the moment.

Mr NEUMANN: Can I refer Dr Brown to two things he has obliquely referred to this morning. During the Dreyfus inquiry, we were urged very strongly to go down the American road of a false claims act. In this inquiry we have also been urged to consider that. You have not put anything akin to that American Civil War False Claims Act in here—the idea that a whistleblower can sue on behalf of the Commonwealth. Why not? Secondly, you made reference in your opening gambit this morning to changes and reforms that have been brought in in America in the last week or so—maybe there is some case law or something. Can you refer to that as well?

Prof. Brown : In terms of the False Claims Act and 'qui tam' type remedies, I think the time is increasingly approaching when comprehensive legislation on that front will serve Australia well and especially serve the Commonwealth well. Part of the intention behind this bill—Mr Wilkie's intention and my intention—was to do the best we could to implement the Dreyfus committee report and the government response to it wherever that accepted and improved upon the Dreyfus committee report, remembering that the Dreyfus committee report was a bipartisan report of the parliament. It looked at this issue, and it had been looked at before. I think the trend is there that we are ready to use those sorts of remedies and mechanisms for encouraging whistleblowing, as in bounty mechanisms, false claims act mechanisms.

One reason why it is not in the bill is that it would have been a bridge too far in terms of consistency with the Dreyfus committee and the government response. The second reason is that there is a lot of research and policy activity on the potential application of those types of remedies now, including the Attorney-General's Department looking at it in the context of the new National Anti-Corruption Plan and formulating its thoughts about when and how we should go down that road. There are questions about the fact that those remedies can only apply to fraud or quantifiable pecuniary penalties or damages. You can only get a cut for a quantifiable financial figure, and that does not apply to many of the types of wrongdoing that this is really aimed at, which are a whole range of things which are not necessarily related to fraud or to quantifiable pecuniary amounts. Really those types of approaches are something which need to overlay a whole lot of regulation and a whole lot of public integrity that do not necessarily need to be embedded in a public interest disclosure bill like this, which is aimed fundamentally at the relationship between Public Service employees and their employers and the Commonwealth as a whole and the Commonwealth's obligations towards its own people.

The qui tam remedies are accessible by anybody. They are primarily used by whistleblowers, because they have the information which proves the fraud—or the loss, or the crime—but they are also used by other people, so it is not just a whistleblower issue; it is actually a broader issue. It could be used by contractors in the Home Insulation Program, for example, who chose to blow the whistle on all the other contractors who were rorting Commonwealth money, hypothetically speaking.

Mr NEUMANN: What was the recent trend in the US that you referred to?

Prof. Brown : Just before the US election, by executive order the President extended administrative protection consistent with the federal Whistleblower Protection Act in the United States to national security employees, for internal disclosures, for the first time. That is now one of the key elements of the new whistleblower protection enhancement bills that have now apparently, finally, after years, got to the next stage at the congress. I think they may be en route to be law just in the last week.

It is just a confirmation that there is significant movement; even in the totally dysfunctional US Congress there is actually movement to increase, enhance and regularise the protections, and to extend the protections. That was the main point that I was making.

Mrs BRONWYN BISHOP: Professor Brown, going to the new Public Service Act—the whistleblower protections in there and the provision for regulation making. It seems to me that some of the things you are talking about could be covered by regulations to the existing legislation. And I take up Ms Fisher's comments about the need for the Public Service Commissioner and the Merit Protection Commissioner to be the people who are basically in charge of the investigation and taking action. Have you put your mind to that?

Prof. Brown : Certainly. In this bill there is certainly reference to—

Mrs BRONWYN BISHOP: But leaving aside the bill; supposing the bill is not there—suppose we are looking at the Public Service Act, that we are looking at the provisions and that we are looking at the regulation-making power.

Ms Fisher : Sure. The regulation-making power is important. The recent amendments to the Public Service Act introduced some greater flexibility for the Public Service Commission in how it goes about setting in place a framework for code of conduct investigations, especially in the whistleblowing field. That flexibility can be achieved in a number of ways. I think the concern, which was the concern documented by the Dreyfus committee, was that there are some elements of the principles that should govern that framework which should be in legislation, rather than in regulations. But you will still need the procedures and the guidelines which can be developed under those legislative provisions.

Because we are talking about this bill: I think that the main issues this bill has sought to address are the issues about the fact that the Public Service Act regime only covers approximately half of all Commonwealth employment in total. Roughly: it probably has changed a bit, but certainly a couple of years ago it was about half in total.

Mrs BRONWYN BISHOP: Because of contractors?

Prof. Brown : And the many agencies that are not Public Service Act agencies—that are not agencies in the Australian Public Service. From my point of view, the government response left out the Australian Public Service Commissioner and the Merit Protection Commissioner much more in the response than it should have. This bill lists them amongst the integrity agencies that have particularly special roles, as well as referring directly and cross-referencing to the Public Service Act, to code of conduct investigations and responsibilities and procedures under that act.

The overall point is that there are many different types of responses to alleged or suspected wrongdoing that already go on right across the public service. There is everything from existing code of conduct investigations, to criminal investigations, to internal Defence investigations to everything. The purpose of this legislation should not be—and I do not think that this bill is—to replace all of those. It is to overlay all of those and to assist with the coordination of those by providing some unifying points in the framework and in remedies and compensation mechanisms.

Some of the suggestions that have already been made to the committee, including by Ms Fisher today, point to areas where those connections could possibly even be brought through and clarified. But we are quite clearly in a position—and this is what the Dreyfus committee accurately identified, I think—of it not being a case of it all being one of these different regimes. All of these different systems already operate; this will be something which overlays all of those systems without replacing them. Those coordination issues which I think the integrity agencies have alluded to have always been very prominent and critical. Wherever there is room to improve the clarity of that coordination of roles within the bill it should be progressed.

I would assume that Mr Wilkie, whose bills they are, would appreciate any suggestions in that direction from any of the witnesses to the committee, or from the submissions or from the committee personally. I would expect that.

Mrs BRONWYN BISHOP: I will come back to that point. Just in a drafting sense, there are two bills. It seems to me that the second bill is really in place of having amendments to the first bill. Is that what happened?

Prof. Brown : No. The consequential amendments bill amends other legislation. It amends the Fair Work Act—

Mrs BRONWYN BISHOP: But you can do that in the schedule to the original bill. But that got forgotten, did it?

Prof. Brown : That was a drafting decision. That was not—

Mrs BRONWYN BISHOP: The timing would seem to indicate that there was a—

Prof. Brown : I am not actually the drafter.

Mrs BRONWYN BISHOP: But you obviously had a lot of input.

Prof. Brown : I understand that Mr Wilkie's office and the Clerk's office made the decision that it was appropriate to go with the primary bill and the consequential amendments bill.

Mrs BRONWYN BISHOP: The Clerk's office would have outsourced the drafting of this bill though. They would not have had the resources to do that.

Prof. Brown : I believe they did, but it is not my—

Mrs BRONWYN BISHOP: They have the ability to outsource. What I am really saying is that, with regard to covering the Public Service per se, are the things that are in this bill which relate to the Public Service capable of being dealt with by regulations in the Public Service Act?

Prof. Brown : For the most part, no.

Mrs BRONWYN BISHOP: What are the areas that you say cannot be dealt with that way?

Prof. Brown : The application of all of these things to the non Public Service Act agencies—

Mrs BRONWYN BISHOP: I did not ask that. I just asked about that part that relates specifically to the Public Service.

Prof. Brown : In many cases, some of the adjustments to the roles and responsibilities of different agencies, including the other central agencies that have a role in these things, even in relation to Australian Public Service Act agencies—

Mrs BRONWYN BISHOP: But what are those—

Prof. Brown : I cannot see that the parliament would think it was appropriate to embed those amendments to roles and responsibilities in addition to the responsibilities of the Ombudsman's office in the Public Service Act, for example.

Mrs BRONWYN BISHOP: But specifically what areas?

Prof. Brown : I am happy to supply you with a list of the relevant sections, perhaps on notice, if that would appease you. There are a lot of them.

Mrs BRONWYN BISHOP: Give me one example.

Prof. Brown : I would say that quite a bit of part 7 relating to legal protections for disclosures, pretty much all of part 8 relating to oversight of public interest disclosures for the reasons that I just mentioned—

Mrs BRONWYN BISHOP: Which were? Just repeat those reasons.

Prof. Brown : I cannot imagine that the government, the parliament or the opposition would see it as appropriate to be setting out the roles and responsibilities of other independent statutory agencies like the Ombudsman's office or the Inspector General of Intelligence and Security in the Public Service Act or in regulations to the Public Service Act, especially when those agencies have their own enabling legislation and the jurisdiction that is being created is broader than just Public Service Act agencies.

Mrs BRONWYN BISHOP: What is the difference between imposing that on those agencies by a separate piece of legislation and doing it by regulation or amendment to the principal act?

CHAIR: There would not be such a weird overlap, would there?

Mrs BRONWYN BISHOP: This bill is the overlap.

CHAIR: That is what I mean.

Mrs BRONWYN BISHOP: At the moment we have discrete areas. I personally, having been a minister in the Defence portfolio, believe that Defence should be entirely separate. I do not think it is appropriate for it to be put in with the general mass.

Prof. Brown : At risk of being accused of a hospital pass, I am going to look at Ms Fisher and ask her if she would have a stab at saying that the Public Service Commission believes that these types of roles and responsibilities across the entire regime, including non Public Service Act agencies and other integrity agencies—

Mrs BRONWYN BISHOP: We are not talking about non Public Service agencies. We are talking about the Public Service.

Prof. Brown : should not be embedded in regulations in the Public Service Act.

CHAIR: Yes, please, Ms Fisher.

Ms Fisher : What is the question? If you can just clarify the question for me, I will see if I can answer it.

CHAIR: My understanding is that it is: rather than having the umbrella whistleblower legislation, why not have the Public Service Act—

Mrs BRONWYN BISHOP: Where it is dealt with.

Prof. Brown : That is a big question. The Public Service Act currently provides protection for Australian Public Service employees who report a breach or an alleged breach of the APS Code of Conduct to authorised persons.

The amendment bill amends the act to the extent that it allows for a regulation-making power and provides for agency heads to establish procedures for people to make whistleblowing reports, and it allows those regulations to provide some discretion for dealing with those reports.

To the extent that the bills are different, as Professor Brown said, the Public Service Act deals with Public Service agencies and Public Service employees.

Mrs BRONWYN BISHOP: That is precisely the point I am making. Rather than trying to have a great big bill that is covering everybody, when we are dealing with the Public Service why, if there are issues that are specific, and that Professor Brown thinks are important to include in the whistleblower protection regime, could that not be done for the Public Service by having it done either through the regulation-making power that is specifically in the amendment bill or, indeed, by further amendment to the bill itself so that the Public Service remains in charge of the Public Service? My view is that Defence should always remain separate, and not be covered by some overarching legislation, for instance.

Ms Fisher : The agencies that are principally outside the act are the Australian Defence Force, the Australian Federal Police and agencies like the CSIRO. I am not a lawyer, so it is difficult for me to answer that question categorically, but as far as my reading goes I think you probably could make regulations that—

Mrs BRONWYN BISHOP: Would cover those sorts of issues?

Ms Fisher : It could not go outside the Public Service—

Mrs BRONWYN BISHOP: I do not want it to go outside the Public Service. I want the Public Service Commissioner and the Merit Protection Commissioner to be able to deal with the Public Service. When we are dealing with Defence I think that is an entirely separate matter that needs to be dealt with. I query the status of the CSIRO, but I believe the Federal Police are in a discrete situation as well. My concern is that there are issues which can be raised in the terms of this discussion which are important issues to be addressed in the Public Service context, and then we can look at it differently for Defence and the Federal Police, if you like. I do not wish for the umbrella to take over the whole thing. If there are things that are important to the Public Service, can they be dealt with by way of regulation or amendment to bring it in line with the sorts of things you are talking about?

Ms Fisher : I am not certain that they could be. I would like to look at that further.

Mrs BRONWYN BISHOP: You might take back your hospital pass and have a think about it.

Ms Fisher : Having got the bill in front of me now it looks as though they provide for procedures to be established.

CHAIR: Why don't we get a more considered response from you.

Mrs BRONWYN BISHOP: I will give you an example. The library, in its appraisal of the amendment bill, indicated:

The second reading speech states that the amendments relating to whistleblower reports will allow ‘matters to be excluded from inquiry, including those that relate to an employee’s own employment’ as ‘[s]uch complaints are better directed to the existing review of action scheme’.

That, in fact, is not in the bill. It is pointed out that maybe this is flagging the fact that it will be in the regulations. The regulation-making power as it is established under this bill is pretty strong. It does not have to be a Henry VIII clause, but it still has a strong regulation-making power.

CHAIR: I have a question to the table generally. Would anyone like to comment on the possibility that the inclusion of members and senators within the scheme of legislation could lead to an intersection between a potential legislative whistleblowing scheme and parliament's role in managing any allegations of misconduct by parliamentarians? Would anyone like to respond?

Mrs BRONWYN BISHOP: The CPSU says not, so perhaps they would like to talk.

Ms Persse : We think there needs to be clarity for people in those situations. This seems to be a contested area, and we think it is something committee will need to look at, and that the parliament will have a view on as well.

We did not make a recommendation about that; we just noted it as an issue that is clearly of concern. Our main interest would be that our members in that area of employment have as clear a path and protections as would anyone else. We note that it is an area that the committee seemed to grapple with last time.

CHAIR: Ms Kardell, would you like to make a comment?

Ms Kardell : I would like you to repeat the question, if you would not mind. I do not think I understand it.

CHAIR: Should parliamentarians be covered by the legislation or should they be looking after themselves? It shows my bias as a parliamentarian. You might not be interested in this area.

Ms Kardell : I have never thought about it.

CHAIR: Professor Brown, no doubt you have thought about it.

Prof. Brown : I think the two issues of the committee are: should public servants or parliamentary staff who make disclosures about parliamentarians be able to then seek the legal protections under the regime? That is question one. Question two is—

CHAIR: And your thinking is yes.

Prof. Brown : I think the public is expecting yes, some way or other. You only need to look at the debate that is going on in Victoria this week about the extent to which the parliamentarians appear to have excised themselves or not from the accountability regimes to which everybody else is liable. There is a question of public confidence in the federal parliament at the moment. There always is, as there always should be, but there is a particular one at the moment. I think the question for the committee is: how is it going to demonstrate to the public that disclosures of this kind about these kinds of matters, which are generally serious by statutory definition, will be appropriately dealt with and that people who make them, especially if they are employees or parliamentary staff, are protected. That is the primary issue.

I do not think there is any way of escaping that issue. If it is not dealt with in the same bill as other members of the Public Service, contractors and the small fish, then it will need to be dealt with under some kind of parliamentary integrity regime that is robust enough to regain and sustain that public confidence. There may be a recommendation there for where the committee thinks it should go, even if not in this bill.

Mrs BRONWYN BISHOP: That is precisely why I raise the Gillian Sneddon case. On the day that she was to give evidence in the trial against Mr Orkopolous, she was advised she no longer had a job. If that is not intimidation, I do not know what is.

Prof. Brown : I have been a ministerial staffer. You go into these sorts of jobs with a sense of the political risk—not that that risk is justified. You do not expect to find that.

Mrs BRONWYN BISHOP: No, you do not.

Prof. Brown : But I am even more concerned about the average public servant from way down the chain who has information about serious wrongdoing, either by a parliamentary staff member or by a politician. What is the protection for them? So, if the disclosure relates to those levels, this legislation should be able to deliver protection for them, or something else just as strong.

CHAIR: For the MP to be an authorised recipient, so that—

Prof. Brown : It is more the question of who is defined as a public official for the purposes of whether their wrongdoing—

Mrs BRONWYN BISHOP: Where they go to make a complaint is the question. I think that can be dealt with separately from a question of overarching legislation. I am sorry, I imputed the CPSU's comment to you, Professor Brown, when they said they—

Ms Kardell : I cannot recall. Does this bill include the member of parliament as a recipient of a public interest disclosure?


Ms Kardell : I was going to say: does this bill include a member of parliament as a recipient for the purposes of making a public interest disclosure? It does in New South Wales; you can take yourself along to an MP; six months down the track, if the disclosure has not been investigated and nothing has been done, you can either go to the press or a member of parliament—and in Queensland, too, I think. So it should be.

Prof. Brown : In that respect, this bill is actually different to both of those because the part dealing with disclosures to third parties—

CHAIR: Could you point us to the section, Professor Brown?

Prof. Brown : It is part five, section 32 on pages 24 and 25 of the bill. Under circumstances defined in this part, the public official may make a public interest disclosure to a person—that is, any person—whom they reasonably believe can assist them to ensure that appropriate action is taken. So it is through third parties, but then it is confirmed that that does include a journalist. But it would actually mean anything. I do not believe those New South Wales or Queensland provisions are really best practice in terms of singling out individual members of parliament as disclosure recipients because I think that, for the sorts of reasons that Mrs Bishop articulated, it is part of their job. The legislation acknowledges and protects parliamentary privilege, as recommended by the Dreyfus committee. I do not think that there is any real need to specify the roles of parliamentarians, but there is still a need to protect those who make disclosures that go there. As to parliamentary privilege, it is a bit like journalists' privilege: fundamentally they protect the parliamentarian or the journalist; they may or may not, in effect, protect the source.

Mrs BRONWYN BISHOP: One of the reasons I got a bit cross with Ms Kardell earlier, perhaps a little unfairly, was: I do not think enough is made of the power of a member of parliament to represent and get justice for individuals. It is hugely powerful. Without disclosing a current case that I am dealing with, there is a real need for a remedy for a particular constituent that I have. As member of parliament, I get access to people that an ordinary person cannot, and I really can put the case strongly and really can get outcomes. Far from trying to paint members of parliament, as is popularly done, as pariahs in some way, I think that the ability of members of parliament to represent and get justice for their people and to use the sort of reach that we have needs to be more broadly known. I do not like the idea of them being put down as just people against whom, potentially, allegations must be made, because, by and large, people do that job pretty well, and I think we make the system poorer if we do not acknowledge that.

CHAIR: On that positive note, I might ask for concluding comments or questions.

Ms Kardell : I would like to say something. We have not looked at a stand-alone authority. Whistleblowers Australia has had a policy since 1991-ish that we should move to a false claims act at some point, and everything tells me that the climate is changing. In the years leading up to this time, my submissions have been met with a lack of interest, for all sorts of reasons; it has not been its time. But I think its time is coming. People have become sufficiently knowledgeable about the act and how it works in the United States of America and they are starting to appreciate the benefits that would accrue to the Commonwealth if it were in place. And it would bring changes. So that is the first thing I would like to say.

From about 1994, we have had a policy that there should be a stand-alone whistleblower protection unit, and that is still our policy. Kim Sawyer has been a member of Whistleblowers Australia for a long time, so I am familiar with Kim's views and in large part they are the organisation's views. We have always lobbied hard for a stand-alone organisation. More recently in New South Wales we were presented with the alternative of something or nothing, and the 'something' was the ombudsman's office providing a type of oversight role, which is a failure, in my view, as it stands, because it does not do what we would have it do.

It seems to me that, without any additional cost for the offices which are currently listed as being recipients for disclosures, who would normally in that sense investigate the disclosure, there is an opportunity in the bill for a carve-up, if you like—for the two major oversight bodies, being the IGIS and the Commonwealth Ombudsman, being put to one side and being given the role, together with their oversight responsibilities, of investigating disclosures of detrimental action and looking to protect the whistleblower. In other words, they would know who the whistleblowers were because the various organisations which had responsibility for investigating the disclosures—the initial whistleblowing—would be registering that and making those things known to the Ombudsman's office and the IGIS. In that sense, those two organisations will be well placed to, for example, make applications to restrain employers or just quietly get on the phone and say, 'This is not something you should be doing; leave that employee alone.' I think something like that is happening in New South Wales in relation to Peter Fox, the senior police officer. I see a real role in this bill for the two major oversight agencies, being the Ombudsman and the IGIS, to be set aside, not to be recipients of the whistleblowing per se, except upon review. I see them as having a role to encourage and facilitate whistleblowing practices across the Commonwealth sector and also to protect whistleblowers. So, if I had a whistleblower who was in serious trouble, I could say, 'Go and see Mr Neave and tell him about your disclosure that you have made to someone else'—perhaps the Defence Department—and that process could then be taken forward. In this way you would arm the Ombudsman in a very effective way with the role of getting everybody to perform their task as they should. There are many, many reasons why we would have you do this.

CHAIR: Ms Kardell, we might have to bring you to a close.

Ms Kardell : One last thing, please; I will try to be brief.

CHAIR: We do want a comment from other people, and I should point out that the Ombudsman had to leave.

Ms Kardell : Yes, indeed, I am sorry that he did, because I have been mentioning him.

Ms Fisher : There is just one comment I would like to make on the points you have just made. Within the Australian Public Service there are already some existing arrangements that would go to some of the points that you have made. There is a review of actions scheme within section 33 of the act under the auspices of the Merit Protection Commissioner where employees can apply for a review of any action taken about them by their employer in the first instance to their employer and in a second-tier review to the Merit Protection Commissioner. I would imagine that if it were an adverse action in relation to a whistleblowing report, that is the sort of thing that might be covered. There are also the adverse action provisions of the Fair Work Act. So there are some existing arrangements already in place.

Ms Kardell : I appreciate that, but I am actually proposing something quite different. It is to say that you have—

CHAIR: I think we got the gist of your proposal, Ms Kardell. We do have to move on, I am sorry, because our focus is obviously on the legislation in front of us, not on what might be tomorrow.

Ms Kardell : That is fine.

CHAIR: Ms Fisher or Ms O'Keefe, would you like to comment? Do not feel obliged. Professor Brown?

Prof. Brown : From a technical point of view I think there have been some really valid issues highlighted by both written and oral submissions. I suspect that there are solutions to all of those within the framework of the bill. I am happy to make some more suggestions or supplementary submissions to the committee on those aspects. I do not speak for the member for Denison, so what recommendations—

CHAIR: Despite suggestions to the contrary!

Prof. Brown : he may or may not like from anybody, including me; I simply do not know and cannot say. I think the process of refining is as it should be and I really do encourage all parties to see this as a once-in-a-generation opportunity that needs to be taken.

CHAIR: Thank you. The CPSU?

Ms Persse : Just a few things: in the light of the discussion today we do think that a defined scheme is important where there are clear obligations on the person who has given those powers to investigate within a particular time frame. As I mentioned earlier, we think that is important in supporting the culture of strong public administration. I think it is worth saying that we do think that the standard of public administration in the Commonwealth is very high. These discussions tend to focus on the things that go wrong, when so much goes right. So many public servants are incredibly dedicated and we do know that, when these things occasionally arise, it puts people in a really invidious position where their protections are not clear. So we think that clarity and a clear obligation to investigate are important.

I agree with Dr Stone's commentary about legal advice. Our interest in legal protections at the end of the road is simply that our experience—and this also goes to the industrial relations field—is that if you do not have those ultimate sanctions, things can get a lot more hazy along the road and people may end up having to take several actions. We think those matters are important not because we would like to see a lot of people heading off to them but because they provide the ultimate check.

Finally, our submission says—and I think it is important to make this point—that should the Ombudsman have these responsibilities directed towards his office that resourcing will be important for all the things that our people have spoken about that that body should do.

CHAIR: Thank you, Ms Persse. I would like to thank all the witnesses before closing the public hearing. I thank everyone for coming along but, particularly, our supplementary member, Mrs Bishop, who obviously has great knowledge and experience in this area.

I would ask that a subcommittee be set up, consisting of me, Shayne Neumann, Dr Stone, Judi Moylan and Mrs Bishop for the inquiry into the Public Interest Disclosure (Whistleblower Protection) Bill 2012 and the Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012 and also a subcommittee be set up of me, Dr Stone and Ms Moylan for the inquiry into the Courts and Tribunals Legislation Amendment (Administration) Bill 2012.

Resolved (on motion by Mrs Bishop):

That this committee authorises publication, including publication on the parliamentary database, of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 10:57