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Public Interest Disclosure (Consequential Amendments) Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

PUBLIC INTEREST DISCLOSURE (CONSEQUENTIAL AMENDMENTS) BILL 2013

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for the Public Service and Integrity,

the Honourable Mark Dreyfus QC MP)



 

PUBLIC INTEREST DISCLOSURE (CONSEQUENTIAL AMENDMENTS) BILL 2013

Outline

 

The Public Interest Disclosure (Consequential Amendments) Bill 2013 (the Consequential Bill) will amend a number of Acts in support of the scheme in the Public Interest Disclosure Bill 2013 (the PID Bill). 

The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security (‘the IGIS’) will have oversight functions for the scheme.  Amendments proposed in the Consequential Bill will support that oversight function.  The main amendments in the Consequential Bill are as follows.

·          To amend the Ombudsman Act 1976 to permit the Ombudsman to investigate a public interest disclosure made under the PID Bill where some or all of the disclosable conduct relates to an agency that is not an intelligence agency or the IGIS.  The Ombudsman will also be able to investigate, through the Ombudsman’s own motion powers or upon complaint, the handling of a public interest disclosure by an agency (other than an intelligence agency or the IGIS).  In both cases, the Ombudsman will be able to conduct an inquiry using the powers under the Ombudsman Act. The Ombudsman’s functions under subsection 5(1) of the Ombudsman Act empower the Ombudsman to investigate action that relates to a matter of administration, including actions relating to a public interest disclosure under the PID Bill (that is not a matter relating to an intelligence agency or the IGIS).

·          To amend the Ombudsman Act to require the Ombudsman to consult the Australian Public Service Commissioner where a complaint, including a public interest disclosure, relates to an allegation of misconduct by an APS Agency Head.  Further amendment will require the Ombudsman to bring evidence of misconduct to the notice of the Australian Public Service Commissioner if that evidence suggests that an APS Agency Head may have breached the APS Code of Conduct.  If evidence suggests that the Australian Public Service Commissioner may have breached the APS Code of Conduct, the Ombudsman will be required to bring that evidence of the notice of the Merit Protection Commissioner.  Similar amendments are proposed to the Ombudsman Act in respect of officers of the Parliamentary Service.

·          To amend the Inspector-General of Intelligence and Security Act 1986 to permit the IGIS to inquire into a public interest disclosure that has been, or is required to be, allocated under the PID Bill where some or all of the disclosable conduct relates to an intelligence agency.  The IGIS will be able to inquire into a public interest disclosure that has been allocated to the IGIS under the PID Bill to the extent that it relates to an intelligence agency, as well as inquire into complaints about the handling of a public interest disclosure by an intelligence agency.  In both cases, the IGIS will be able to conduct an inquiry using the powers under the Inspector-General of Intelligence and Security Act.

·          To repeal existing provisions in the Public Service Act 1999 (as amended by the Public Service Amendment Act 2013 ) and the Parliamentary Service Act 1999 (as amended by the Parliamentary Service Amendment Act 2013 ) relating to whistleblower reports.  The PID Bill will provide a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and to provide protections to those who report wrongdoing.  The PID Bill will have broad application across the Commonwealth public sector, including application to Australian Public Service employees and to Parliamentary Service employees. 

·          Consequential upon the repeal of the whistleblower provisions in the Public Service Act (as amended by the Public Service Amendment Act), amend the Public Service Act to preserve a function for the Australian Public Service Commissioner and the Merit Protection Commissioner to inquire into public interest disclosures, within the meaning of the PID Bill, to the extent that a disclosure relates to alleged breaches of the APS Code of Conduct.

·          Consequential upon the repeal of the whistleblower provisions in the Parliamentary Service Act (as amended by the Parliamentary Service Amendment Act), amend the Parliamentary Service Act to preserve a function for the Parliamentary Service Commissioner and the Parliamentary Service Merit Protection Commissioner to inquire into public interest disclosures, within the meaning of the PID Bill, to the extent a disclosure relates to alleged breaches of the Parliamentary Service Code of Conduct.

Financial Impact Statement

Ongoing funding has been provided to the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security for their roles under the proposed scheme.

No other financial impact is anticipated, with agencies to absorb costs associated with establishing internal processes for handling and investigating public interest disclosures. 

Regulation Impact Statement

The measures in the Consequential Bill support the scheme in the PID Bill.  The Office of Best Practice Regulation advised that no regulation impact statement was required for the measures contained in the PID Bill. 

List of abbreviations

APS                                          Australian Public Service

Consequential Bill                   Public Interest Disclosure (Consequential Amendments) Bill

                                                2013

IGIS                                          Inspector-General of Intelligence and Security

IGIS Act                                    Inspector-General of Intelligence and Security 1986

Ombudsman                           Commonwealth Ombudsman

Ombudsman Act                     Ombudsman Act 1976

Parliamentary Service Act      Parliamentary Service Act 1999

PID Bill                                                Public Interest Disclosure Bill 2013

Public Service Act                   Public Service Act 1999

 

 

The Public Service Commissioner will be known as the Australian Public Service Commissioner after the Public Service Amendment Act 2013 takes effect on 1 July 2013.

Statement of Compatibility with Human Rights

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

The Consequential 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 Consequential Bill

The Consequential Bill will make amendments consequential to the Public Interest Disclosure Bill 2013, the stated objects of which are to promote the integrity and accountability of the Commonwealth public sector, encourage and facilitate the making of public interest disclosures by public officials, ensure that public officials who make public interest disclosures are protected from adverse consequence relating to the disclosures, and ensure that disclosures by public officials are properly dealt with and investigated.   The main amendments to Acts proposed in the Consequential Bill are:

·          To amend the Ombudsman Act 1976 to permit the Ombudsman to investigate a public interest disclosure made under the PID Bill where some or all of the disclosable conduct relates to an agency that is not an intelligence agency or the IGIS.  The Ombudsman will also be able to investigate, through the Ombudsman’s own motion powers or upon complaint, the handling of a public interest disclosure by an agency (other than an intelligence agency or the IGIS).  In both cases, the Ombudsman will be able to conduct an inquiry using the powers under the Ombudsman Act. The Ombudsman’s functions under subsection 5(1) of the Ombudsman Act empower the Ombudsman to investigate action that relates to a matter of administration, including actions relating to a public interest disclosure under the PID Bill (that is not a matter relating to an intelligence agency or the IGIS).

·          To amend the Ombudsman Act to require the Ombudsman to consult the Australian Public Service Commissioner where a complaint, including a public interest disclosure, relates to an allegation of misconduct by an APS Agency Head.  Further amendments will require the Ombudsman to bring evidence to the notice of the Australian Public Service Commissioner if that evidence suggests that an APS Agency Head may have breached the APS Code of Conduct.  If evidence suggests that the Australian Public Service Commissioner may have breached the APS Code of Conduct the Ombudsman will be required to bring that evidence of the notice of the Merit Protection Commissioner.  Similar amendments are proposed to the Ombudsman Act in respect of officers of the Parliamentary Service.

·          To amend the IGIS Act to permit the IGIS to inquire into a public interest disclosure that has been, or is required to be, allocated under the PID Bill where some or all of the disclosable conduct relates to an intelligence agency.  The IGIS will be able to inquire into a public interest disclosure that has been allocated to the IGIS under the PID Bill to the extent that it relates to an intelligence agency, as well as inquire into complaints about the handling of a public interest disclosure by an intelligence agency.

·          To repeal existing provisions in the Public Service Act (as amended by the Public Service Amendment Act 2013 ) and the Parliamentary Service Act (as amended by the Parliamentary Service Amendment Act 2013 ) relating to whistleblower reports.  The Public Interest Disclosure Bill will provide a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and to provide protections to those who report wrongdoing.  The PID Bill will have broad application across the Commonwealth public sector, including application to Australian Public Service employees and to Parliamentary Service employees. 

·          Consequential upon the repeal of the whistleblower provisions in the Public Service Act (as amended by the Public Service Amendment Act), amend the Public Service Act to preserve a function for the Australian Public Service Commissioner and the Merit Protection Commissioner to inquire into public interest disclosures, within the meaning of the PID Bill, to the extent that a disclosure relates to alleged breaches of the APS Code of Conduct.

·          Consequential upon the repeal of the whistleblower provisions in the Parliamentary Service Act (as amended by the Parliamentary Service Amendment Act), amend the Parliamentary Service Act to preserve a function for the Parliamentary Service Commissioner and the Parliamentary Service Merit Protection Commissioner to inquire into public interest disclosures, within the meaning of the PID Bill, to the extent a disclosure relates to alleged breaches of the Parliamentary Service Code of Conduct.

Human rights implications

The amendments in the Bill engage the following applicable rights or freedoms.

Right to work and rights in work

The right to work is protected in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to just and favourable conditions of work are protected in Article 7 of the ICESCR.

The right to work and to just and favourable conditions of work are protected and promoted by the Consequential Bill.  Measures in the Bill will give functions to the Ombudsman and to the IGIS (for intelligence agencies) to conduct inquiries into public interest disclosures allocated to them under the PID Bill as well as to investigate or inquire into complaints about the handling of public interest disclosures by agencies.  A public official (within the meaning of the PID Bill) who has suffered detriment as a result of making a public interest disclosure will be able to make a complaint to the Ombudsman or to the IGIS (for intelligence agencies) about that detriment.  The ability to make such a complaint is an additional remedy to the remedies under the PID Bill to apply to the Federal Court or Federal Circuit Court, or to seek a remedy under the Fair Work Act.   Oversight by the Ombudsman and the IGIS in this manner enhances protection for public officials who have made a public interest disclosure.  

The Australian Public Service Commissioner, Merit Protection Commissioner, Parliamentary Service Commissioner and Parliamentary Service Merit Protection Commissioner (‘the Commissioners’) will continue to have functions to inquire into public interest disclosures to the extent the disclosure relates to alleged breaches of the APS Code of Conduct and Parliamentary Service Code of Conduct respectively.  These inquiry functions, to be performed by independent statutory office holders, promote the integrity and accountability of the Commonwealth public sector. 

Right to an effective remedy

The right to an effective remedy for a violation of rights or freedoms recognised in the International Covenant on Civil and Political Rights (‘ICCPR’), and to have the right to that remedy determined by competent judicial, administrative, legislative or other authorities, is contained in Article 2 of the Convention.

 

The Consequential Bill promotes this right as it enables independent review of complaints and public interest disclosures by the Ombudsman, the IGIS and the Commissioners.  

Conclusion

The Bill is compatible with human rights as it advances the right to work and to just and favourable conditions of work and promotes the right to an effective remedy for a violation of rights or freedoms.

Notes on Clauses

Clause 1: Short title

This is a formal clause which gives the citation of the Bill, when enacted.

Clause 2: Commencement

The table in this clause sets out when provisions in the Bill would commence.  The table provides that clauses  1 to  3 (and anything else not covered in the table) would commence on the day on which the Bill receives the Royal Assent.

Table item 3, which covers amendments in Schedule 1 to the IGIS Act and the Ombudsman Act will commence at the same time as section 3 of the PID Bill, when enacted (which is on a date to be fixed by proclamation). 

The other table items for amendments in Schedule 1 (items 2, 4, 5 and 6) will commence whichever is the later of the commencement of the PID Bill (when enacted) and the commencement of the Public Service Amendment Act 2013 and the Parliamentary Service Amendment Act 2013 .  The amendments to the Public Service Act incorporate amendments to be made by the Public Service Amendment Act 2013 , which is to commence on 1 July 2013.  The amendments to the Parliamentary Service Act incorporate amendments to be made by the Parliamentary Service Amendment Act 2013 , which is to commence on 1 July 2013.  

Clause 3: Schedule(s)

The effect of this clause is that each Act specified in Schedule 1 of the Consequential Bill is amended or repealed as set out in the applicable items in the Schedule. Any other item in the Schedule has effect according to its terms.

 

Schedule 1 - Amendments

Australian Law Reform Commission Act 1996

Item 1: Subsection 26(2A) (note)

This item is consequential upon item 22 (repeal of section 16 of the Public Service Act) and will omit a reference to section 16 of that Act which will be inserted into a note to subsection 26(2A) of the Australian Law Reform Commission Act by the Public Service Amendment Act 2013 (item 3, Schedule 3).



 

Inspector-General of Intelligence and Security Act 1986

Item 2: Subsection 3(1)

This item is consequential to item 3 and inserts a definition for ‘disclosable conduct’ into the IGIS Act.  That term is to have the same meaning as in the PID Bill when enacted.

Item 3: After section 8

The item inserts a new clause 8A into the IGIS Act.  Under section 8 of the IGIS Act, the IGIS has functions which include to inquire into any matter that relates to the propriety of particular activities of the intelligence agencies.  The purpose of this clause is to permit the IGIS to inquire into a public interest disclosure that has been, or is required to be, allocated under clause 43 of the PID Bill where some or all of the disclosable conduct relates to an intelligence agency.  The effect of subclause 8A(1) is to deem that conduct to be action that relates to the propriety of particular activities of the intelligence agency, in order that the IGIS may use existing powers under the IGIS act to conduct an inquiry. 

Subclause 8A(2) provides that in determining whether the IGIS is authorised to inquire into the matter under section 8, subsection 8(4) is to be disregarded.  That subsection provides that the IGIS shall not, of his or her own motion or in response to a complaint to the IGIS, perform any of the functions set out in paragraph (2)(a) in relation to an action taken by ASIS, DIGO or DSD except to the extent that Australian citizens or permanent residents are affected or a law of the Commonwealth, a State or a Territory may be violated.  This subsection is to be disregarded because disclosable conduct for the purposes of the PID Bill could involve conduct engaged in by an agency or public official that affects persons who are not Australian citizens or permanent residents or does not violate an Australian law.  In particular, disclosable conduct, as defined in clause 29(1) of the PID Bill, includes conduct, in a foreign country, that contravenes a law that is in force in the foreign country, and is applicable to the agency, public official or contracted service provider and correspondents to a law in force in the ACT (see table item 2).

Subclause 8A(3) provides that for the purpose of applying the IGIS Act to the ‘action’ under subclause 8A(1), the conduct is to be treated as if it were action taken by the intelligence agency, and a public official who belongs to the intelligence agency within the meaning of the PID Bill is taken to be a member of the intelligence agency, and the person who disclosed the information, if the disclosure is allocated to the IGIS, is taken to have made a complaint to the IGIS in respect of the action.

Under existing paragraph 8(2)(a) of the IGIS Act, the IGIS’s function in relation to ASIS, DIGO or DSD of undertaking an inquiry, including into a matter that relates to the propriety of particular activities of those agencies, can be undertaken at the request of the responsible Minister, on the IGIS’s own motion, or in response to a complaint made to the IGIS by a person who is an Australian citizen or a permanent resident.  The effect of subclause 8A(4)(a) is to preserve the limitation that a person who is not an Australian citizen or permanent resident is unable to make a complaint about conduct in relation to ASIS, DIGO or DSD.

Under existing paragraph 8(3) of the IGIS Act, the IGIS’s function in relation to DIO or ONA of undertaking an inquiry, including into a matter that relates to the propriety of particular activities of those agencies, can be undertaken at the request of the responsible Minister, on the IGIS’s own motion.  The effect of subclause 8A(4)(b) is to preserve the limitation that a person cannot themselves make a complaint to the IGIS to inquire into a matter relating to the DIO or ONA.  However, t his does not prevent a person making a public interest disclosure under the PID Bill, when enacted, about DIO or ONA to the IGIS. The IGIS could choose to use the IGIS’ own motion powers to inquire into matters concerning the legality or propriety of DIO or ONA activities.

Subclause 8A(5) provides that it is immaterial whether the disclosable conduct occurred before or after the commencement of the clause. 

Item 4: Subsection 34(1)

This item is consequential upon item 3 and has the effect that the secrecy offence, prohibiting the IGIS and his or her staff from disclosing or using of information acquired under the IGIS Act, will not apply in the performance of functions or duties or in the exercise of powers under the PID Bill when enacted.

Item 5: Paragraph 34(5)(c)

Subsection 34(5) of the IGIS Act provides that if a person is prohibited by the section from disclosing information, the person must not be required to produce in a court any document of which the person has custody or access because the person is performing functions or exercising powers under the IGIS Act or certain other legislation, nor to divulge to a court any information obtained by the person because the person is performing those functions or exercising those powers.  That prohibition is subject to a number of exceptions.  The effect of item 5 would be to expand one of these existing exceptions which permits the person to divulge information to a court, where it is necessary to do so for the purpose of the IGIS Act or the PID Bill, when enacted, if the information is obtained for the purposes of the IGIS Act (preserving the effect of existing paragraph 34(5)(c)) or, if the information is obtained for the purpose of the PID Bill, when enacted.



 

Ombudsman Act 1976

Item 6: Subsection 3(1)

Item 6 inserts definitions relevant to the proposed amendments.

Item 7: Subsection 3(1) (definition of Secretary)

This item is consequential to item 11, 13 and 14 and substitutes a definition of ‘Secretary’ to define the role under the Parliamentary Service Act in addition to preserving the definition for a Secretary for the purposes of the Public Service Act. A Secretary under the Parliamentary Service Act means the Clerk of the Senate (if the Department is the Department of the Senate), the Clerk of the House (if the Department is the Department of the House of Representatives), the Parliamentary Budget Officer (if the Department is the Parliamentary Budget Office) and the person who is the Secretary of another Department.

Item 8: After section 5

The item inserts a new clause 5A into the Ombudsman Act.  Under subsection 5(1) of the Ombudsman Act, the Ombudsman has functions which include investigating action that relates to a matter of administration by a Department or a prescribed authority and in respect of which a complaint has been made, or on the Ombudsman’s own motion.  The purpose of this clause is to permit the Ombudsman to investigate a public interest disclosure that has been, or is required to be, allocated under clause 43 of the PID Bill where some or all of the disclosable conduct relates to an agency (that is not an intelligence agency or the IGIS).  The effect of subclause 5A(1) is to deem that conduct to be action that relates to a matter of administration for the purposes of the Ombudsman Act, in order that the Ombudsman may use existing powers under the Ombudsman Act to conduct an investigation.  The Ombudsman will be able to investigate a public interest disclosure allocated to the Ombudsman for the purposes of the PID Bill. The Ombudsman will also be able to investigate, through own motion powers or following a complaint, the handling of a public interest disclosure by an agency (other than intelligence agency or the IGIS).

Subclause 5A(2) provides that for the purpose of applying the Ombudsman Act to the PID Bill related ‘action’ under subclause 5A(1), the agency is taken to be a prescribed authority for the purposes of the Ombudsman Act, the action is to be treated as if it were action taken by the prescribed authority, and a public official who belongs to the agency within the meaning of the PID Bill is taken to be an officer of the prescribed authority, and the person who disclosed the information, if the disclosure is allocated to the Ombudsman, is taken to have made a complaint to the Ombudsman in respect of the action.

Subclause 5A(3) provides that it is immaterial whether the disclosable conduct occurred before or after the commencement of the clause. 

Item 9:  After subsection 6(10)

Existing provision is made in the Ombudsman Act for the Ombudsman to transfer complaints to the Australian Public Service Commissioner where the complaint could be more conveniently or effectively dealt with by the Commissioner (subsections 6(9) and 6(10)).  Item 9 will insert subclauses 6(11) to (11C) into existing section 6. Subclause 6(11) provides that for the purposes of making a decision under subsection 6(9) relating to a complaint that includes an allegation of misconduct by an Agency Head, the Ombudsman must consult with the Australian Public Service Commissioner.  Item 6 defines an ‘Agency Head’ to have the same meaning as in the Public Service Act.

Subclause 6(11A) inserts equivalent provision for the Ombudsman to decide not to investigate a complaint, or not to investigate a complaint further, and to transfer a complaint to the Parliamentary Service Commissioner where the Ombudsman forms the opinion that a complaint could have been made under the Parliamentary Service Act and that the complaint could be more conveniently or effectively dealt with by the Parliamentary Service Commissioner.  Like existing subsection 6(10), under subclause 6(11B), if the Ombudsman makes a decision to transfer a complaint to the Parliamentary Service Commissioner, the Ombudsman is required to transfer the complaint as soon as is reasonably practicable, and to give the Commissioner information or documents in the Ombudsman’s possession or control, and to notify the complainant as soon as is reasonably practicable that the complaint has been transferred to the Commissioner.

Under subclause 6(11C), for the purposes of considering whether to make a transfer decision under subclause 6(11A) relating to a complaint that includes an allegation of misconduct by the Secretary of a Parliamentary Department, the Ombudsman is required to consult with the Parliamentary Service Commissioner. This is a similar provision to subclause 6(11) concerning a consultation requirement with the Australian Public Service Commissioner.

Item 10: Subsection 8(10)

This item amends the language of subsection 8(10) by replacing the phrase ‘becomes of the opinion’ with ‘forms the opinion’.

Item 11: Paragraph 8(10)(a)

This item amends the language of paragraph 8(10)(a) by replacing the term ’principal officer’ with ‘Secretary’ which is defined in item 7. The amendments clarify who is taken to be a secretary of a department for the purposes of the Public Service Act and the Parliamentary Service Act.

Item 12: At the end of paragraph 8(10)(a)

This item amends the language of paragraph 8(10)(a) by inserting ‘or’ at the end of the paragraph. It is consequential upon item 14.

Item 13: Paragraph 8(10)(b)

This item amends the language of paragraph 8(10)(b) by replacing the phrase ’principal officer’ with ‘Secretary’ wherever it occurs within this paragraph. The amendments clarify who is taken to be a secretary of a department for the purposes of the Public Service Act and the Parliamentary Service Act.

Item 14: After paragraph 8(10)(b)

Under existing subsection 8(10), where the Ombudsman forms the opinion, either before or after completing an investigation, that there is evidence that a person, being an officer of a Department or of a prescribed authority, has been guilty of a breach of duty or misconduct, the Ombudsman is required to bring the evidence to the notice the Minister administering the Department (if the person is the principal officer of the Department) or to the principal officer of the Department (if the person is an officer of the Department and not the principal officer). 

Item 14 will clarify to whom notification must be given when the evidence concerns the Secretary or another officer of a Parliamentary Department. If the evidence concerns a Secretary of a Parliamentary Department, the Ombudsman must notify the Presiding Officer or Presiding Officers in respect of the action under investigation, and if the evidence concerns an officer of a Parliamentary Department (but not the Secretary), the Ombudsman must notify the Secretary of that Parliamentary Department.  

Item 15: Paragraphs 8(10)(c) and (d)

This item amends the language of paragraphs 8(10)(c) and (d) and is consequential upon Item 14.

Item 16: After subsection 8(10)

Item 16 will insert subclauses 8(10A) to 8(10C). Subclause 8(10A) provides that, without limiting subsection 8(10), if the Ombudsman forms the opinion, either before or after completing an investigation under the Ombudsman Act, that there is evidence that an Agency Head may have breached the APS Code of Conduct, the Ombudsman must bring that evidence to the notice of the Australian Public Service Commissioner. If the evidence concerns the Australian Public Service Commissioner, under paragraph 8(10)(b), the Ombudsman will be required to bring that evidence to the notice of the Merit Protection Commissioner.

Subclause 8(10B) provides that, without limiting subsection 8(10), if the Ombudsman forms the opinion, either before or after completing an investigation under the Ombudsman Act, that there is evidence that the Secretary of a Parliamentary Department may have breached the Parliamentary Service Code of Conduct, the Ombudsman must bring that evidence to the notice of the Parliamentary Service Commissioner.

Subclause 8(10C) provides that, without limiting subsection 8(10), if the Ombudsman forms the opinion, either before or after completing an investigation under the Ombudsman Act, that there is evidence that the Parliamentary Service Commissioner may have breached the Parliamentary Service Code of Conduct, the Ombudsman must bring that evidence to the notice of the Parliamentary Service Merit Protection Commissioner.

Item 17: Subsection 35(4)

Section 35 of the Ombudsman Act makes it an offence for the Ombudsman, Deputy Ombudsman and staff to use or divulge information acquired for the purposes of the Ombudsman Act and certain other functions, unless an exception applies.  Subsection 35(4) clarifies that, subject to the exceptions, the Ombudsman or a Deputy Ombudsman is not prevented from disclosing in a report made under the Ombudsman Act such matters as he or she considers ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.  Item 17 will amend that subsection to add setting out grounds for ‘findings’ in a report. 

Parliamentary Service Act 1999

Item 18: Section 16

This item repeals section 16 of the Parliamentary Service Act 1999 (as amended by the Parliamentary Service Amendment Act 2013) which makes provision for the protection of whistleblowers and for the establishment of procedures for whistleblower reports.  Repeal of this provision is to avoid duplication.  The PID Bill will provide a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and to provide protections to those who report wrongdoing.  The PID Bill will have broad application across the Commonwealth public sector, including application to Australian Public Service employees and to Parliamentary Service employees. 

Item 19: Subsection 20(4)

This item, to repeal a reference to section 16, is consequential to item 18 .

Item 20: Paragraph 40(1)(c)

This item repeals paragraph 40(1)(c) of the Parliamentary Service Act (as amended by the Parliamentary Service Amendment Act) that would give the Parliamentary Service Commissioner a function of inquiring into whistleblower reports made to the Commissioner under section 16 (which is to be repealed by item 18 above).  Item 20 substitutes a function for the Parliamentary Service Commissioner to inquire, subject to determinations made under the Parliamentary Service Act, into public interest disclosures within the meaning of the PID Bill (when enacted), to the extent a disclosure relates to alleged breaches of the Parliamentary Service Code of Conduct.

Item 21: Paragraph 48(1)(a)

This item repeals paragraph 48(1)(a) of the Parliamentary Service Act (as amended by the Parliamentary Service Amendment Act) that gives the Parliamentary Service Merit Protection Commissioner a function of inquiring into whistleblower reports made to the Commissioner under section 16 (which is to be repealed by item 18 above).  Item 21 substitutes a function for the Parliamentary Service Merit Protection Commissioner to inquire, subject to determinations made under the Parliamentary Service Act, into public interest disclosures within the meaning of the PID Bill (when enacted), to the extent a disclosure relates to alleged breaches of the Parliamentary Service Code of Conduct.

Public Service Act 1999

Item 22: Section 16

This item repeals section 16 of the Public Service Act (as amended by the Public Service Amendment Act) which makes provision for the protection of whistleblowers and for the establishment of procedures for whistleblower reports.  Repeal of this provision is to avoid duplication.  The PID Bill will provide a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and to provide protections to those who report wrongdoing.  The PID Bill will have broad application across the Commonwealth public sector, including application to Australian Public Service employees and to Parliamentary Service employees. 

Item 23: Section 19

This item, to repeal a reference to section 16, is consequential to item 22 .

Item 24: Paragraph 41(2)(o)

This item repeals paragraph 41(2)(o) of the Public Service Act (as amended by the Public Service Amendment Act) that would give the Australian Public Service Commissioner a function of inquiring into whistleblower reports made to the Commissioner under section 16 (which is to be repealed by item 22 above).  Item 24 substitutes a function for the Australian Public Service Commissioner to inquire, subject to regulations made under the Public Service Act, into public interest disclosures within the meaning of the PID Bill (when enacted), to the extent a disclosure relates to alleged breaches of the APS Code of Conduct.

Clause 25: Paragraph 50(1)(a)

This item repeals paragraph 50(1)(a) of the Public Service Act that gives the Merit Protection Commissioner a function of inquiring into whistleblower reports made to the Commissioner under section 16 (which is to be repealed by item 22 above).  Item 25 substitutes a function for the Merit Protection Commissioner to inquire, subject to regulations made under the Public Service Act, into public interest disclosures within the meaning of the PID Bill (when enacted), to the extent a disclosure relates to alleged breaches of the APS Code of Conduct.



 

Schedule 2 - Transitional provisions

Item 1

Item 1 provides for the protections in subsection 16(1) of the Parliamentary Service Act (to be repealed by item 18 of Schedule 1) to continue to apply in relation to any reports of breaches, or alleged breaches, of the Parliamentary Service Code of Conduct that were made before the commencement of item 1.

Item 2

Sub-item 2(1) provides for procedures and determinations made for the purposes of subsections 16(2) and 16(3) of the Parliamentary Service Act (to be repealed by item 18 of Schedule 1) to continue to apply in relation to any reports of a breach, or an alleged breach, of the Parliamentary Service Code of Conduct that were made to a secretary before commencement of sub-item 2(1).

Sub-item 2(2) provides for determinations made for the purposes of subsections 16(5) and 16(6) of the Parliamentary Service Act (to be repealed by item 18 of Schedule 1) to continue to apply in relation to any reports of a breach, or an alleged breach, of the Parliamentary Service Code of Conduct that were made to the Parliamentary Service Commissioner, Parliamentary Service Merit Protection Commissioner or an authorised person before commencement of item 2(2).

Item 3

Item 3 provides for the protections in subsection 16(1) of the Public Service Act (to be repealed by item 22 of Schedule 1) to continue to apply in relation to any reports of breaches, or alleged breaches, of the APS Code of Conduct that were made before the commencement of item 3.

Item 4

Sub-item 4(1) provides for procedures and regulations made for the purposes of subsections 16(2) and 16(3) of the Public Service Act (to be repealed by item 22 of Schedule 1) to continue to apply in relation to any reports of a breach, or an alleged breach, of the APS Code of Conduct that were made to an APS Agency Head before commencement of sub-item 4(1).

Sub-item 4(2) provides for regulations made for the purposes of subsections 16(5) and 16(6) of the Public Service Act (to be repealed by item 22 of Schedule 1) to continue to apply in relation to any reports of a breach, or an alleged breach, of the APS Code of Conduct that were made to the Australian Public Service Commissioner, Merit Protection Commissioner or an authorised person before commencement of sub-item 4(2).