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Tuesday, 13 May 2008
Page: 1659

Senator Stott Despoja asked the Minister representing the Prime Minister in the Senate, upon notice, on 12 February 2008:

(1)   Under what legislation, regulations or codes are ‘public interest disclosure’ and/or whistleblower and like claims processed.

(2)   What criteria are used in the Australian Public Service generally to determine the validity of claims under ‘public interest disclosure’ situations, that is, by whistleblowers or people making whistleblower-like claims or allegations.

(3)   Does the criterion for assessing the validity of a whistleblower or a whistleblower type claim include any psychiatric or psychological assessment; if so, what is the legislative basis for such an assessment, including specific clauses.

Senator Chris Evans (Minister for Immigration and Citizenship) —The Prime Minister has provided the following answer to the honourable senator’s question:

I am advised that:

(1)   Section 16 of the Public Service Act 1999 (PS Act) protects federal public servants from discrimination or victimisation where they report breaches of the Australian Public Service (APS) Code of Conduct (‘the Code of Conduct’) to an agency head, the Merit Protection Commissioner or the Public Service Commissioner. Although they do not contain specific references to whistleblowers, the Workplace Relations Act 1996 (WR Act) and the Occupational Health and Safety Act 1991 (OHS Act) also provide some protection. Paragraph 659(2)(e) of the WR Act states that employment cannot be terminated for ‘the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities’. Under section 76 of the OHS Act, a similar provision is included whereby an employee who complains about a work-related health, safety or welfare matter cannot be dismissed for that reason. Members of Parliament are protected under the Parliamentary Privileges Act 1987 in relation to disclosures in the course of, or incidental to, parliamentary business. Further, the Australian Standard Whistleblower Protection Programs for Entities AS 8004-2003 sets out elements for establishing, implementing and managing an effective whistleblower protection program. It is intended as a practical guide for corporations, government agencies and not-for-profit entities wishing to implement such a program.

(2)   It is implicit under section 16 of the Public Service Act that a report can only be made by an APS employee about an APS employee. Each particular case and the issues it raises is considered on its merits. More generally, Public Service Regulation 2.4 requires Agency Heads to establish procedures for dealing with a whistleblowing report made by an APS employee, including the requirement for such procedures to have regard to procedural fairness and comply with the Privacy Act 1988, and the requirement that a report will be investigated unless it is considered to be frivolous or vexatious.

(3)   No, see above. However, under Public Service Regulation 3.2 an Agency Head can direct an APS employee to attend a medical examination if there is reason to believe that the state of health of the employee:

  • may be affecting the employee’s work performance;
  • has caused, or may cause the employee to have an extended absence from work;
  • may be a danger to the employee;
  • has caused, or may cause, the employee to be a danger to other employees or members of the public; or
  • may be affecting the employee’s standard of conduct.