Bills Digest No. 127, 2012–13

4 June 2013

Public Interest Disclosure (Consequential Amendments) Bill 2013

Mary Anne Neilsen
Law and Bills Digest Section 

Date introduced: 29 May 2013

House: House of Representatives

Portfolio: Public Service and Integrity

Commencement: Various dates as set out in section 2, which generally are linked to commencement of the proposed Public Interest Disclosure Act 2013 or the Public Service Amendment Act 2013.[1]

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Public Interest Disclosure (Consequential Amendments) Bill 2013 (‘the Bill’ or ‘the Consequential Bill’) is to amend a number of Acts in support of the Public Interest Disclosure Bill 2013 (‘the PID Bill’).[2]

The purpose of the PID Bill is to establish a framework to encourage and facilitate reporting of wrongdoing by public officials in the Commonwealth public sector. The PID Bill also aims to ensure that Commonwealth agencies investigate and respond to public interest disclosures and it provides protections to public officials who make qualifying public interest disclosures.

Structure of the Bill

The Bill consists of two Schedules:

·         Schedule 1 amends the Australian Law Reform Commission Act 1996, the Inspector-General of Intelligence and Security Act 1986, the Ombudsman Act 1976, the Parliamentary Service Act 1999 and the Public Service Act 1999 and

·         Schedule 2 contains transitional arrangements. The reader is referred to the Explanatory Memorandum to the Bill for further information on this Schedule.

Background

The reader is referred to the ‘Background’ section in the Bills Digest for the PID Bill.[3] The ‘Key issues and provisions’ section below also has relevant background where appropriate.

Committee consideration

The PID Bill was referred to both a House of Representatives and a Senate Committee for inquiry and report. Full details of these inquiries are available in the Bills Digest for the PID Bill. The Consequential Bill, having a much later date of introduction and being essentially technical and consequential, is unlikely to be referred to a Committee.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[4] The Government considers that the Bill is compatible.

Key issues and provisions

Schedule 1

Inspector-General of Intelligence and Security Act 1986

The Inspector-General of Intelligence and Security Act 1986 (the IGIS Act)[5] provides the basis for the Inspector-General of Intelligence and Security (IGIS) to conduct inspections of the Australian intelligence agencies and to conduct inquiries. The IGIS can receive and investigate complaints about activities of the agencies including complaints from current and former public officials. The IGIS has its own motion powers in addition to considering requests from Ministers and complainants.

Under the public interest disclosure scheme (PID scheme) to be established in the PID Bill, the IGIS will have oversight and investigative functions for the scheme in relation to matters to do with intelligence agencies and intelligence information. Amendments to the IGIS Act in items 2 to 5 of Schedule 1 of the Bill support this function.

Under section 8 of the IGIS Act, the IGIS has functions which include inquiring into any matter that relates to the propriety of particular activities of the intelligence agencies. Item 3 of Schedule 1 of the Bill inserts proposed section 8A into the IGIS Act. The purpose of this section 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.[6]

The effect of proposed subsection 8A(1) is to deem the conduct that is disclosed under the PID Bill 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.[7]

Ombudsman Act 1976

Under the Ombudsman Act, the Commonwealth Ombudsman has a role to investigate complaints from individuals, groups or organisations about the administrative actions of Australian Government officials and agencies. It also has power to undertake investigations of administrative action on an ‘own motion’ basis - that is, on the initiative of the Ombudsman.

Under the PID scheme to be established in the PID Bill, the Ombudsman will have both oversight and investigative functions for the scheme in relation to matters to do with agencies apart from intelligence agencies. Amendments to the Ombudsman Act in items 6 to 17 of Schedule 1 of the Bill support this function.

The functions of the Ombudsman are set out in section 5 of the Ombudsman Act.[8] They include the function of investigating actions relating to administration by a Department or by a prescribed authority and in respect of which a complaint has been made, or on the Ombudsman’s own motion (subsection 5(1)).

Item 8 of Schedule 1 of the Bill inserts proposed section 5A into the Ombudsman Act. The purpose of this section is permit the Ombudsman to investigate a public interest disclosure made to the Ombudsman or allocated to the Ombudsman under clause 43[9] of the PID Bill where the alleged wrongful conduct relates to an agency (other than an intelligence agency or the Inspector-General of Intelligence and Security). The effect of proposed subsection 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.[10]

Item 9 of Schedule 1 of the Bill amends section 6 of the Ombudsman Act, which sets out certain discretions available to the Ombudsman when investigating certain complaints. In particular subsections 6(9) and 6(10) deal with transfers of complaints to the Public Service Commissioner where a complaint has been made to the Ombudsman and the Ombudsman thinks the complaint could have been made under the Public Service Act and the complaint would be more conveniently dealt with by the Public Service Commissioner. Item 9 inserts equivalent provisions (proposed subsections 6(11A) and 6(11B)) which will allow transfer of complaints to the Parliamentary Service Commissioner for complaints that Ombudsman thinks could have been made under the Parliamentary Service Act and would be more conveniently dealt with by the Parliamentary Service Commissioner.

Item 9 also inserts proposed subsections 6(11) and 6(11C) that deal with cases of misconduct by departmental and agency heads. Proposed subsection 6(11) provides that for the purposes of making a decision under subsection 6(9) relating to a case of alleged misconduct of an Agency Head[11] the Ombudsman must consult the Australian Public Service Commissioner. Proposed subsection 6(11C) is an equivalent provision relating to Parliamentary Departments, so that the Ombudsman must consult with the Parliamentary Service Commissioner where the complaint concerns a Secretary of a Parliamentary Department.[12]

Items 14 and 16 amend section 8 of the Ombudsman Act. Section 8 deals with the various protocols the Ombudsman must follow when conducting investigations. In particular existing subsection 8(10) provides that when conducting investigations and the Ombudsman forms a view that there is evidence of misconduct by an officer of a Department, the Ombudsman must inform the principal officer of that Department, or in the case of evidence of misconduct by the principal officer, must inform the Minister. Item 14 inserts an equivalent provision in relation to evidence of misconduct concerning officers or secretaries of the Parliamentary Departments.

Item 16 inserts proposed subsections 8(10A) to 8(10C). Proposed subsection 10(A) provides that when conducting an investigation and the Ombudsman believes there is evidence that an Agency Head may have breached the APS Code of Conduct he/she must notify the Public Service Commissioner of that evidence. Proposed subsection 8(10B)) is an equivalent provision in relation to secretaries of Parliamentary Departments. It places an obligation on the Ombudsman to inform the Parliamentary Service Commissioner of evidence of a breach of the Parliamentary Service Code by secretaries. In the case of a breach by the Parliamentary Service Commissioner the obligation is to inform the Parliamentary Service Merit Protection Commissioner (proposed subsection 8(10C)).

If the evidence concerns the Australian Public Service Commissioner then the Ombudsman must notify the Merit Protection Commissioner (proposed paragraph 10(A)(b)).

Public Service Act 1999 and Parliamentary Service Act 1999

The existing statutory framework for reporting wrongdoing in the Australian Public Service (APS) is set out in the Public Service Act. Section 16 of that Act (as amended)[13] provides explicit protection for APS employees from victimisation and discrimination for reporting suspected breaches of the APS Code of Conduct to an authorised person.

The framework for reporting wrongdoing in the Australian Parliamentary Service is essentially the same as that for the APS. Section 16 of the Parliamentary Service Act (as amended)[14] provides explicit protection for parliamentary service employees from victimisation and discrimination for reporting suspected breaches of the Parliamentary Service Code of Conduct to an authorised person.

Item 22 of Schedule 1 of the Bill repeals section 16 of the Public Service Act. The rationale for this repeal being that the PID scheme as set out in the PID Bill will establish a single comprehensive framework for reporting wrongdoing in the Commonwealth public sector and therefore section 16 is no longer needed. Item 18 repeals the equivalent provision (section 16) of the Parliamentary Service Act.

Under paragraph 41(2)(o) of the Public Service Act as amended, the Australian Public Service Commissioner has a function of inquiring into whistleblower reports made to the Commissioner under current section 16. Under paragraph 50(1)(a) the Merit Protection Commissioner has a similar function. Item 24 of Schedule 1 of the Bill substitutes a new paragraph 41(2)(o), and item 25 substitutes a new paragraph 50(1)(a). The effect of these amendments would be to preserve a function for the Australian Public Service Commissioner and the Merit Protection Commissioner respectively to inquire into public interest disclosures within the meaning of the PID Bill relating to alleged breaches of the APS Code of Conduct.

Items 20 and 21 are equivalent amendments to the Parliamentary Service Act preserving functions of the Parliamentary Service Commissioner and the Parliamentary Service Merit Protection Commissioner to inquire into public interest disclosures within the meaning of the PID Bill relating to alleged breaches of the Parliamentary Service Code of Conduct.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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ISSN 1328-8091

[1].              The Public Interest Disclosure Bill 2013 is currently before Parliament. If enacted it will be the Public Interest Disclosure Act 2013 and its operative provisions will commence six months after Royal Assent or earlier by proclamation. See the Bill homepage, viewed 3 June 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5027%22;

              The operative provisions of the Public Service Amendment Act 2013 will commence on 1 July 2013. The Act, viewed 3 June 2013, http://www.comlaw.gov.au/Details/C2013A00002

[2].              Public Interest Disclosure Bill 2013, viewed 3 June 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5027%22

[3].              MA Neilsen, Public Interest Disclosure Bill 2013, Bills Digest, no. 125, 2012–13, Parliamentary Library, Canberra, 2013, viewed 3 June 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F2494869%22

[4].              The Statement of Compatibility with Human Rights can be found at pages 5–6 of the Explanatory Memorandum to the Bill.

[5].              Inspector-General of Intelligence and Security Act 1986, viewed 3 June 2013, http://www.comlaw.gov.au/Details/C2012C00756

[6].              Clause 43 provides amongst other things that if a person discloses information to an authorised officer of an agency, the officer must allocate the handling of the disclosure to one or more agencies (which may be or include the recipient agency).

[7].              Explanatory Memorandum, Public Interest Disclosure (Consequential Amendments) Bill 2013, p. 9, viewed 3 June 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr5070_ems_d3ced2dd-d5f2-427a-92b7-c2018650eb0c%22

[8].              Ombudsman Act 1976, viewed 3 June 2013, http://www.comlaw.gov.au/Details/C2012C00609

[9].              See footnote 6 above.

[10].              Explanatory Memorandum, Public Interest Disclosure (Consequential Amendments) Bill 2013, op. cit., p. 11.

[11].              Agency head has the same meaning as in the Public Service Act (item 6 of Schedule 1). Under clause 49 of the PID Bill the Ombudsman may undertake investigations using separate powers under the Ombudsman Act.

[12].              Note that under the definition of ‘Secretary of a Department’ in the Parliamentary Service Act (section 7), this would be the Clerks of the Senate and the House of Representatives, the Parliamentary Budget Officer and the Secretary of the Department of Parliament Services.

[13].              Note that there have been 2013 amendments which affect section 16 (Public Service Amendment Act 2013). These are due to commence in July. See footnote 1.

[14].              There have been 2013 amendments which affect section 16 and are due to commence on 1 July 2013. Parliamentary Service Amendment Act 2013, viewed 3 June 2013, http://www.comlaw.gov.au/Details/C2013A00004