House of Representatives Speech- Public Interest Disclosure Bill 2013, Public Interest Disclosure (Consequential Amendments) Bill 2013

  I welcome the contributions of all members to the debate on the Public Interest Disclosure Bill 2013 and the Public Interest Disclosure (Consequential Amendments) Bill 2013. The Public Interest Disclosure Bill 2013 has an object of promoting integrity and accountability in the Commonwealth public sector. The bill will achieve this by establishing a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and those who report it. It is the first stand-alone legislation for this purpose at the federal level.

I welcome the contributions of all members to the debate on the Public Interest Disclosure Bill 2013 and the Public Interest Disclosure (Consequential Amendments) Bill 2013. The Public Interest Disclosure Bill 2013 has an object of promoting integrity and accountability in the Commonwealth public sector. The bill will achieve this by establishing a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and those who report it. It is the first stand-alone legislation for this purpose at the federal level.

I thank the parliamentary committees for their inquiries and reports on the Public Interest Disclosure Bill 2013. The House of Representatives Standing Committee on Social Policy and Legal Affairs and the Senate Standing Committee on Legal and Constitutional Affairs together received more than 30 submissions on the bill. Both those inquiries recommended that this bill be passed, with the Senate committee's recommendation subject to certain amendments being made. I welcome these contributions and will be moving government amendments that are designed to further enhance the operation of the scheme.

A main purpose of the bill is to establish clear procedures for allegations of wrongdoing to be reported by public officials and for findings of wrongdoing to be rectified. The emphasis on the scheme is on the disclosure of wrongdoing being reported to and investigated within government. To this end, the bill places obligations on principal officers of agencies to ensure that public interest disclosures are properly investigated and that appropriate action is taken to deal with recommendations relating to their agency. In short, these are obligations to act on disclosures of wrongdoing and to fix wrongdoing where it is found. A well-implemented and comprehensive scheme should lead to a discloser having confidence in the system, and remove incentive for the discloser to make public information to parties outside government.

Recourse for making disclosures outside government should be exercised with reserve when reported wrongdoing is not being properly investigated and rectified, and when other public interests will not be undermined. This is reflected in the requirements to make a qualifying protected external disclosure. Amendments that I will be moving to the bill will make some changes to the qualifying requirements for public interest disclosures. External disclosure is not the only recourse for a public official who is dissatisfied with the manner in which their disclosure has been handled. It is also open to an official to make a complaint to the Ombudsman or to the Inspector-General of Intelligence and Security at any stage of the process for dealing with a public interest disclosure.

I clarify that the bill applies to the intelligence agencies. A public official within an intelligence agency can make a protected disclosure about wrongful conduct in their agency. The disclosure can be made to an authorised officer in the intelligence agency or to the Inspector-General of Intelligence and Security. A public interest disclosure concerning the conduct of an intelligence agency will be required to be investigated and dealt with in the same way as a disclosure concerning an agency that is not an intelligence agency. The activities of intelligence agencies are governed by the Intelligence Services Act 2001 and the Australia Security Intelligence Organisation Act 1979. Under those acts, intelligence agencies must seek a direction or authority from the appropriate minister for agency use of special powers and other sensitive activities for that purpose. The responsible minister must be satisfied that any activity undertaken by an intelligence agency is in accordance with the function of that agency in addition to other factors set out in the legislation.

The purpose of clause 33 of the bill is to make clear that intelligence agencies lawfully conducting activities in accordance with their functions as defined by the Intelligence Services Act 2001 and the Australia Security Intelligence Organisation Act 1979 cannot form the basis for a public interest disclosure. The question of whether or not conduct engaged in by an intelligence agency is in the proper performance of its functions is itself a matter that can be reviewed by the Inspector-General of Intelligence and Security.

The restrictions in the bill relating to intelligence agencies apply to external disclosures. Information that is 'intelligence information' cannot be disclosed outside government and no protection is afforded for any public disclosure of this kind of information. Information that concerns the conduct of an intelligence agency can also not be disclosed outside government and does not qualify for a protected 'external disclosure', but may be the subject of an 'emergency disclosure'. In that case, the restriction on public disclosure of 'intelligence information' would still apply.

The restrictions on public disclosure of intelligence information and the conduct of intelligence information are supported by the risk that very sensitive information could be improperly or unwittingly publicly disclosed. Inadvertent or inappropriate disclosure of intelligence information may compromise national security and potentially place lives at risk. Australian intelligence agencies also have obligations to their foreign partners to maintain the confidentiality of information shared with them.

Some argue that the bill should apply to disclosures by and about members of parliament and to staff engaged by them. On this matter, the bill implements the government's response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report on whistleblower protection. In that response, the government said that allegations of wrongdoing by members of parliament should be addressed by the parliament. This recognises that members of parliament and their staff perform roles that are different to Commonwealth public sector agencies and their staff.

Some criticism has also been made that the bill does not apply to federal judicial officers. It would not be appropriate for the scheme to apply to judicial officers as it would impinge on the constitutional independence of the federal courts. Allegations of wrongful conduct by federal judicial officers can be investigated through the complaints framework established by the Courts Legislation Amendment (Judicial Complaints) Act 2012 and the Judicial Misbehaviour and Incapacity (parliamentary Commissions) Act 2012.

There has also been some criticism that the bill may be difficult to understand for public officials making a disclosure. The bill places obligations on principal officers of agencies to establish procedures for facilitating and dealing with public interest disclosures. These procedures must comply with standards that are determined by the Ombudsman. It is part of the oversight functions for the Ombudsman and the Inspector General of Intelligence and Security to give assistance to current and former public officials making a disclosure as well as to agencies to comply with the scheme. I am able to advise that the Ombudsman proposes to publish guidance on the office's website that will supplement the legislation and standards. This guidance will further assist public officials considering making a disclosure as well as agencies in complying with the scheme.

The Public Interest Disclosure Bill and the Public Interest Disclosure (Consequential Amendments) Bill represent an important reform to strengthen the process in which wrongdoing in the Commonwealth public sector is handled, and to strengthen the protections for those who report wrongdoing. I commend the bills to the House.