House of Representatives Speech- Legal and Constitutional Affairs Committee Report

Can I thank other members of the House of Representatives Standing Committee on Legal and Constitutional Affairs, including the deputy chair of the committee, the member for Fisher, and the member for Blair, for speaking to the report and also thank them for their participation in the committee’s deliberations on this important matter. Could I also thank the member for Fremantle for the speech that we have just heard, because it went a long way towards setting the context of accountability, transparency and integrity in public administration, putting it in an international context and drawing on the work that we know that the member for Fremantle has done overseas. It is important to recognise that a scheme of protection for whistleblowers taking legislative form is but one of a range of measures in this area of improving transparency, improving accountability and improving integrity of government.

Can I thank other members of the House of Representatives Standing Committee on Legal and Constitutional Affairs, including the deputy chair of the committee, the member for Fisher, and the member for Blair, for speaking to the report and also thank them for their participation in the committee’s deliberations on this important matter. Could I also thank the member for Fremantle for the speech that we have just heard, because it went a long way towards setting the context of accountability, transparency and integrity in public administration, putting it in an international context and drawing on the work that we know that the member for Fremantle has done overseas. It is important to recognise that a scheme of protection for whistleblowers taking legislative form is but one of a range of measures in this area of improving transparency, improving accountability and improving integrity of government.

We have recommended a comprehensive scheme, and a scheme which is very long overdue. It is a scheme that is of course intended to protect workers in the public sector who speak out about wrongdoing. The focus is on improving accountability, improving integrity in public administration. As we say in the report, it is not just about introducing legislation. It is about, through that scheme of legislation and through procedures adopted by public sector agencies, creating a culture in which public servants and all who work in the public sector are encouraged to speak out when they see wrongdoing or maladministration in their workplace.

I have said it is long overdue, and perhaps one could demonstrate that by pointing to the fact that there is already in every state and territory in Australia, as well as in a whole range of overseas jurisdictions, legislation that provides protection for whistleblowers. But one can say it is long overdue also because going back some 14 years there have been numerous reviews and attempts made to introduce this type of legislation at the Commonwealth level. You could start with the 1994 report from the Senate Select Committee on Public Interest Whistleblowing, which was entitled In the public interest. That was an all-party committee. It made a very comprehensive set of recommendations with, perhaps one can say with hindsight, a somewhat elaborate scheme. Perhaps the elaborateness of the scheme that was recommended by the Senate select committee in 1994 is what led, first of all, to a very long delay in a response by the former Keating government, which did not come until November 1995. While the government accepted quite a number of the recommendations of that Senate committee and indicated that it was going to move to introduce legislation, the election of March 1996 brought that promise to an end. The new coalition government abandoned the preparation of specific legislation on whistleblowing. There was very, very limited protection introduced in the Public Service Bill that was introduced in 1997, and the provisions that were introduced then found their way into section 16 of the Public Service Act.

But, even then, there was very serious criticism by two parliamentary committees. The Joint Committee of Public Accounts, in its report of September 1997, and the Senate Finance and Public Administration Legislation Committee, in its report of October 1997, were both critical of the very limited whistleblower protections that were proposed in that Public Service Bill. Those provisions did, however, come into force in 1999 and are still there in section 16 of the Public Service Act. Since then, there have been no fewer than three private member’s bills, introduced by Senator Andrew Murray in 2001, 2002 and 2007, dealing with whistleblower protection or public interest disclosure. But, without any support from the former government, each of those three bills proposed by Senator Murray lapsed.

There is one benefit only of the long delay we have seen in introducing legislation at the Commonwealth level, and that is that it has enabled this committee and also the government to consider the lessons that are to be learnt from, in some cases, over a decade of experience in the states and territories of this kind of legislation. The committee, and so too the government, has also had the benefit of a whole range of research work that has been conducted by a three-year project headed by Dr AJ Brown of Griffith University. This project has been referred to extensively by the committee in its deliberations, and it has been referred to by other speakers on this report. In that ‘Whistle while they work’ project, as it was entitled, Dr AJ Brown and his colleagues were able to conduct research across thousands of workplaces by means of survey work and direct interview, as well as holding their own seminars and producing discussion papers over that lengthy period. The situation produced by that is that the House of Representatives Standing Committee on Legal and Constitutional Affairs was in a position that standing committees do not often find themselves in, which was that all of that research work was available to the committee, and we were able to take full advantage of it.

The report produced by the ‘Whistle while they work’ project in early September last year contained such helpful sections as a complete analysis of all of the state and territory legislation, including analysis of the deficiencies discovered in each of those state and territory schemes, and also recorded the results of the empirical research work done by the ‘Whistle while they work’ project. Interestingly, one of the conclusions expressed was that, contrary to the popular perception, people who blow the whistle in their workplace do not always suffer. Very often there is a full investigation of the matters raised and, as should be the case, the whistleblower is commended for disclosing the matter of concern.

What the legislation that this report deals with is aimed at is the other situation—with which we are all too familiar—where someone who has made an allegation of wrongdoing, maladministration, corruption or the like within their workplace does suffer in a range of ways. The proposal is that a very large group of public servants and those working in the public sector are to be protected. That is perhaps the core recommendation of the report. Casting the net so widely will ensure that the legislation covers not just those people who are employed under the Public Service Act, which captures in effect only about two-thirds of public servants. It is proposed that the legislation would cover everybody who works for a Commonwealth agency, everybody who works for a Commonwealth corporation and everybody who works for a company that is contracting to the Commonwealth, and it will include a mechanism that recognises even people who are volunteers within corporations or organisations that are connected with the Commonwealth public sector. As was commented on by Dr AJ Brown at the press conference that followed the tabling of the report yesterday, that coverage is very important because it is important that everyone involved in the public sector knows that, if they discover wrongdoing and make a disclosure in respect of that wrongdoing, they will be protected.

Another important feature of the scheme of legislation that the committee has recommended is that it would set up a procedure for making a disclosure and then impose obligations on public sector agencies who receive disclosures. It is important that the legislation specify a set of procedures, because one of the things that the committee wanted to ensure was that people who are contemplating making a disclosure be able to determine, by ready reference either to the legislation or to guidelines that we hope will be prepared based on the legislation, that they are eligible for protection and the procedures that they need to follow in order to gain that protection. They will also be able to readily see that there are obligations on the agencies to which they make the disclosure to go on and investigate the matter and, further, that there are remedies available to them if that does not occur.

It is very important to ensure that the protection that is afforded by the legislation achieves the purpose that it is aimed at and that the person considering the disclosure be able to see just how the protection is going to work. The purpose which the legislation is aimed at is, of course, improving integrity and accountability in public administration and improving the already high quality of public administration in this country. Unless those considering making a disclosure can see at a glance that they are going to be protected, there will be continuing discouragement from engaging in whistleblowing activity.

There are a range of other aspects of the legislation that I would like to mention. Another is the sequential nature of disclosure that is proposed by the recommended scheme of legislation, and by that I mean that it is proposed that those wishing to make a disclosure first make the disclosure to the agency that they work for or are connected to and then that the legislation provide for the possibility of disclosure to another, more central Commonwealth agency apart from the agency that the whistleblower is connected to. There is a recommendation that the Commonwealth Ombudsman be the central oversight agency for the whole scheme of the legislation, but other recommendations for the legislation are that it would be possible to make the disclosure not only to the Commonwealth Ombudsman but also, at a general level, to the Australian Public Service Commissioner and her colleague, the Merit Protection Commissioner.

There are further recommendations that would provide for disclosures to be made to a range of agencies specialised in their particular area—for example, in the intelligence and security area, we have recommended that the Inspector-General of Intelligence and Security be authorised to receive disclosures, as is the Commonwealth Ombudsman for that purpose. For other specialised areas, we have recommended that such agencies as the Aged Care Commissioner, the Integrity Commissioner, who was mentioned by the member for Fremantle, the Commissioner for Complaints of the National Health and Medical Research Council, the Inspector-General in the Department of Defence and the Privacy Commissioner all be able to receive disclosures about wrongdoing that are directly relevant to their area of expertise.

Following the tabling at the press conference yesterday, Dr AJ Brown also noted the recommendations that the committee has made in respect of the legislation needing to include a set of obligations for managers, Dr Brown making the point that that is an important obligation. Dr Brown also commended the recommendations for external oversight and coordination by the Commonwealth Ombudsman, and I can say to the House that the reason the Commonwealth Ombudsman was selected is that it is regarded by the committee as being the Commonwealth agency with the most expertise in investigating complaints and is recognised across the public service—and, indeed, in the wider community—as being the agency that was established for that purpose.

As has already been noted, the report of the committee has been very well received in most quarters. Senator Faulkner, the Special Minister of State, has indicated that the government is now to consider the report. I look forward to receiving the government’s response to the report. I note that the Special Minister of State’s press release informed the public that the Special Minister of State was looking forward to progressing the issue through government, to developing legislation later this year and to introducing legislation in this term of the parliament. It is a long overdue measure, and I look forward to the legislation being introduced.