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Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012

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2010-11-12

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Andrew Wilkie MP



Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012

 

 

OUTLINE

 

The Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012 contains amendments to legislation, where necessary, to facilitate the introduction of the Public Interest Disclosure (Whistleblower Protection) Bill 2012 . The latter Bill aims to strengthen public integrity by encouraging and facilitating the disclosure of corruption, maladministration and other wrongdoing in the Commonwealth public sector. It does so by providing protection for public officials to make such disclosures, including by providing a unified regulatory oversight. This has an impact on existing legislation and agencies.

 

The Acts amended by the Schedule(s) to this Bill are the following:

 

Fair Work Act 2009

Ombudsman Act 1976

Parliamentary Service Act 1999

Public Service Act 1999

 

 

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Clause 1: Short title

1.     This clause specifies that, when the Bill is enacted, it is to be cited as the Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012.

Clause 2:  Commencement

2.     This clause sets out when the various parts of the Bill are to commence.  Clauses 1 to 3 of the Bill will commence on the day that the Bill receives the Royal Assent.  Schedule 1, setting out the amendments to other Acts, will commence at the same time as sections 3 to 62 of the Public Interest Disclosure (Whistleblower Protection) Act 2012 commence.

Clause 3: Schedules(s)

3.     This clause explains that the Schedules to this Bill will amend or repeal the Acts set out in those Schedules in accordance with the provisions of each Schedule.

4.     Schedule 1 provides for amendments to the Fair Work Act 2009 , the Ombudsman Act 1976 , the Parliamentary Service Act 1999 , and the Public Service Act 1999 .

 



Schedule 1:  Amendments

 

Fair Work Act 2009

 

Item 1: Section 12 (after paragraph (c) of the definition of workplace law )

1.     This item inserts a definition under the headline of “workplace law” in the definitions section to include the Public Interest Disclosure (Whistleblower Protection) Act 2012.  This amendment makes clear that remedies under the Fair Work Act 2009 are available for detrimental action taken against a person as a result of a public interest disclosure under the primary Act, where undertaken in the course of a person’s employment.

 

Item 2: After paragraph 336(c)

2.     This item inserts an explicit mention of the Public Interest Disclosure (Whistleblower Protection) Act 2012 within the objects section of the Chapter on workplace rights and responsibilities.  This amendment reinforces that remedies under the Fair Work Act 2009 are available for detrimental action taken against a person as a result of a public interest disclosure under the primary Act, where undertaken in the course of a person’s employment.

 

Item 3: After section 387

3.     This item refines the definitions of what constitutes an unfair dismissal to incorporate those who make disclosure under the Public Interest Disclosure (Whistleblower Protection) Act 2012 .

 

Item 4:  At the end of section 392

4.     This item establishes a different regime for the compensation cap when the unfair dismissal relates to a disclosure under the newly created section 387A, and gives discretion to the Fair Work Australia to be just and equitable taking into account of the circumstances.

 

Ombudsman Act 1976

 

Item 5: After subsection 5(2)

1.     This item ensures that the Ombudsman may exercise, to the full, all the powers granted to that office under the Public Interest Disclosure (Whistleblower Protection) Act 2012 by ensuring that qualifications or limitations upon its powers, which might otherwise apply, do not apply in respect of matters relating to public interest disclosures.

 

Parliamentary Service Act 1999

 

Item 6: Section 16 (heading)

1.     This item repeals the heading to include a more appropriate heading in light of the new definitions and scope of the Public Interest Disclosure (Whistleblower Protection) Act 2012 .

 

Public Service Act 1999

 

Item 7: Section 16 (heading)

1.     This item repeals the heading to include a more appropriate heading in light of the new definitions and scope of the Public Interest Disclosure (Whistleblower Protection) Act 2012 .

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012 contains amendments to legislation, where necessary, to facilitate the introduction of the Public Interest Disclosure (Whistleblower Protection) Bill 2012. The latter Bill aims to strengthen public integrity by encouraging and facilitating the disclosure of corruption, maladministration and other wrongdoing in the Commonwealth public sector. It does so by providing protection for public officials to make such disclosures, including by providing a unified regulatory oversight. This has an impact on existing legislation and agencies.

 

The Acts amended by the Schedules to this Bill are the following:

 

·          Fair Work Act 2009

·          Ombudsman Act 1976

·          Parliamentary Service Act 1999

·          Public Service Act 1999

 

None of these amendments make any substantive changes to the law, and are purely administrative.

 

Human rights implications

The Bill does not engage any applicable rights or freedoms directly as it concerned with the administrative arrangements necessary for the implementation of the Public Interest Disclosure (Whistleblower Protection) Bill 2012 .

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

 

Andrew Wilkie MP