Public Interest Disclosure Bill 2013


Navigation: Previous Page | Contents | Next Page

Public Interest Disclosure Bill 2013

Introduced into the House of Representatives on 21 March 2013

Portfolio: Public Service and Integrity

Summary of committee view

1.182         The committee considers that the bill in general promotes freedom of expression, but seeks clarification about the prohibition on the public disclosure of certain categories of information on the right to freedom of expression.

1.183         The committee seeks clarification as to why it is necessary to allow for broad exceptions to the use of protected disclosure information and asks how this is compatible with the right to privacy.

1.184         The committee seeks further information as to exceptions available to information pertaining to intelligence agencies, and seeks further information around the reversal of the burden of proof and abrogation of the prohibition against self-incrimination.

Overview

1.185         This bill seeks to establish a framework to encourage and facilitate reporting of wrongdoing by public officials in the Commonwealth public sector; seeks to ensure that Commonwealth agencies properly investigate and respond to public interest disclosures; and provides protections to current or former public officials who make qualifying public interest disclosures. The bill is intended largely to implement the government’s 2010 Response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector.

1.186         The bill protects a person who makes a 'public interest disclosure' (PID) from criminal liability for making the disclosure and provides that no contractual or other remedy may be exercised against the person on the basis of the public interest disclosure. Absolute privilege is provided in relation to defamation proceedings and  the bill provides that a contract cannot be terminated on the basis that the PID constitutes a breach of the contract.[1] These protections do not apply to liability for making a false or misleading statement or other similar offences under the Criminal Code, or the person’s liability for the conduct that is the subject of the disclosure.

1.187         Clauses 13 to 17 provide a range of remedies for a person who is the subject of reprisals because of a (proposed) PID, including compensation, empowering a court to direct a person from taking reprisals or to require an apology and reinstatement of employment. The bill also creates a number of offences including taking reprisals or threatening to do so and disclosing the identity of the whistleblower.[2]

1.188         A public interest disclosure is defined as a disclosure of information by a public official that is:

  • a disclosure within the government, to an authorised internal recipient, concerning suspected or probable illegal conduct or other wrongdoing (referred to as 'disclosable conduct');
  • a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
  • a disclosure to anybody if there is substantial and imminent danger to health or safety, or a disclosure to an Australian legal practitioner for purposes connected with the above matters.[3]

1.189         The definitions of PID vary according to the different types of PID. For example, an external disclosure must (among other matters) not be contrary to a designated publication restriction, and must not be ‘on balance, contrary to the public interest’.[4]

1.190         In order to qualify under the bill as a protected disclosure, not only must a disclosure satisfy the criteria set out in the Table in clause 26, but it must also be related to 'disclosable conduct'. This is defined in clause 29 as covering a range of conduct that may be illegal under Australian or foreign laws, maladministration, certain frauds or deception, the waste of public money, conduct involving danger to the environment, actions involving abuse of a public official’s position, and other prescribed conduct.[5] It does not include conduct that 'relates only to' (proposed) policies of the Commonwealth government, actions taken by a Minister or the Speaker of the House of Representatives or the President of the Senate, or to amounts of expenditure proposed relating to either a policy or action, with which a person disagrees.

Compatibility with human rights[6]

1.191         The bill is accompanied by a self-contained statement of compatibility which identifies the following rights as being engaged by the bill: the right to freedom of expression; the right to privacy; the right to work and to just and favourable conditions of work and concludes that the bill is compatible with human rights.[7]

Freedom of expression

1.192         The statement of compatibility recognises that public servants enjoy the right to freedom of expression in the context of their employment (subject to duties of trust and loyalty) and states that the bill promotes enjoyment of that right. The committee welcomes the introduction of the bill which has the purpose of protecting whistleblowers and lawful and proper administration. Freedom of expression extends to the disclosure of alleged wrongdoing in government to appropriate persons. The bill may also be viewed as promoting the rule of law and democratic accountability which underpin the International Covenant on Civil and Political Rights (ICCPR), including, among other provisions, articles 19 and 25.

1.193         The freedom to disclose information about alleged wrongdoing in the public sector is, however, not unlimited under the bill. In particular, there are restrictions on the disclosure of certain types of information to persons outside the public service, as well as procedural restrictions on public disclosure (essentially that a disclosure made internally to the public service has not been dealt with adequately or at all).

1.194         Article 19(3) of the ICCPR provides that limitations on freedom of expression are permissible in certain circumstances. In general, the bill closely regulates the internal and external communication of information about disclosable conduct (including the identity of those alleged to have engaged in it), in order to protect personal information, and thus the right to privacy and reputation of a person under article 17 of the ICCPR.

Foreign affairs and international relations

1.195         The bill provides that an external disclosure (one to a person outside the designated group of internal recipients), will only qualify for protection if it 'is not, on balance, contrary to the public interest' (in addition to other matters that must be demonstrated). The bill contemplates that there may be cases which a protected disclosure may relate to and pose a risk of causing damage to Australia’s international relations,[8] or involve information that was communicated in confidence by a foreign government on the understanding that it would remain confidential.[9] The bill requires these matters, among many others, to be taken into account in determining whether a disclosure is not, on balance, contrary to the public interest.[10]

1.196         The committee recognises the importance of Australia’s national interest in preserving good relations with other countries and the need for confidentiality to ensure the flow of certain types of information. At the same time, there may be circumstances in which information about conduct covered by the bill has not been adequately dealt with inside government in Australia or elsewhere, and it would be in the public interest to disclose the information, which the bill appears to recognise.

Intelligence information and intelligence agencies

1.197         The statement of compatibility notes that the bill:

provides that certain information, such as intelligence information, can never be the subject of a public interest disclosure other than an internal disclosure. The Bill however does provide a mechanism allowing disclosure to the IGIS, as an independent external authority, consistent with the objects of accountability and integrity in the Commonwealth public sector. Limits on public disclosure of intelligence information are within the permitted restrictions provided in Article 19(3) for the protection of national security or of public order.

1.198         In the case of an external disclosure, the bill provides that a disclosure will not qualify as a public interest disclosure unless it is shown that 'the information does not consist of, or include, intelligence information'.[11] Similarly, a disclosure will not qualify unless '[n]one of the conduct with which the disclosure is concerned relates to an intelligence agency'.[12]

1.199         The meaning of the term 'intelligence information' covers a wide range of information and sources with the categories designed to protect Australia’s relationships with other governments (in particular their intelligence agencies), the conduct of law enforcement, intelligence gathering or crime disruption operations, protect the identity of a person who is an agent or member of staff of an Australian intelligence agency and to protect the safety of witnesses and informants and those involved in their protection, among other purposes.[13] These objectives would, in principle, fall within the permissible objectives in the pursuit of which freedom of expression may be limited under article 19(3) of the ICCPR.

1.200         However, 'intelligence information' – which cannot be disclosed publicly – also includes 'information that has originated with, or has been received from, an intelligence agency'[14] and information received by a public official from a foreign government's intelligence agency that is about, or might reveal, a matter communicated by that authority in confidence.[15]

1.201         The committee acknowledges that certain categories of intelligence information are very sensitive and that to reveal them may lead to serious injury or damage to individuals and may undermine important law enforcement or other legitimate activities. The committee notes that provision is made for the Inspector-General of Security to play a role in relation to such disclosures.

1.202         Nonetheless, the committee is concerned that these restrictions may be too broadly drawn, and that there are some circumstances in which disclosure of wrongdoing (including potentially the disclosure of wrongdoing by a foreign government) may outweigh other interests. Under the bill as presently drafted, it would not be possible to disclose these matters to the media, for example, if internal procedures proved inadequate.

1.203        The committee intends to write to the Minister for the Public Service and Integrity to seek further information as to processes that apply in relation to the internal disclosure of intelligence information to the IGIS.

1.204         The bill also provides that conduct is not disclosable conduct if it is conduct that an intelligence agency or a public official who belongs to an intelligence agency engages in during the proper performance of its functions or powers.[16] In this regard the committee also notes with some concern the following statement in the explanatory memorandum:

The clause is necessary as in certain circumstances intelligence agencies are authorised to engage in conduct in a foreign country, in the proper performance of a function of the agency, which might otherwise be inconsistent with a foreign law or, in certain circumstances, Australian law. Those actions may therefore fall within the definition of ‘disclosable conduct’ in clause 29. For example, section 14 of the Intelligence Services Act 2001 provides that a staff member or agent of an agency covered by that Act is not subject to any civil or criminal liability in Australia for any act done outside Australia if the act is done in the proper performance of a function of the agency. In these situations, it is important that the Australian intelligence capability, which is authorised by Australian legislation, is not undermined or otherwise impacted where the actions taken are fully within the proper performance of the duties or functions of an agency. Clause 33 will also ensure that this conduct does not come within the scope of the scheme.[17]

1.205         The explanatory memorandum makes it clear that Australian officials may be authorised to take action that would be in violation of Australian law or foreign law (or both). The concept of the rule of law underpins the human rights treaties that fall within the committee’s mandate and the apparent possibility of diverging from it gives rise to human rights concerns. Depending on the nature of the ‘authorised’ illegal action, it may infringe rights guaranteed under the relevant human rights treaties, such as the right to privacy, the right to personal liberty or other rights. Restrictions on the disclosure of this information in any circumstances may encroach on the right to seek a remedy for a violation of human rights that is guaranteed under the applicable UN human rights treaties.

1.206        The committee intends to write to the Minister for the Public Service and Integrity to seek clarification about the procedures by which authorisation is given to staff members or agents of an intelligence agency to engage in conduct in violation of Australian law and the laws of an overseas country, whether any of this ‘authorised’ illegal activity may involve the violation of relevant human rights, including but not limited to the right to privacy, and the procedures which provide for independent scrutiny of such authorisations and of actions taken pursuant to such authorisations.

Right to privacy

1.207         The statement of compatibility notes that the bill engages the right to privacy in a number of respects, in particular the right to privacy of a person who makes a protected disclosure and of persons alleged to have engaged in disclosable conduct. The bill includes a number of restrictions on the disclosure of this information for purposes other than when necessary for the proper investigation of the alleged disclosable conduct. However, there are a number of broad exceptions to this which allow disclosure or use of the information if it is for:

(a) the purposes of a law of the Commonwealth;

(b) the purposes of, or in connection with, the performance of a function, or the exercise of a power, of a person under a law of the Commonwealth; or

(c) the purposes of, or in connection with, the exercise of the executive power of the Commonwealth.[18]

1.208         These exceptions provide significant scope for the use of personal information, which would appear to limit the right to privacy. The vagueness of these exceptions may raise concerns regarding whether the limitation on the right to privacy, in so far as the clause deals with personal information, satisfies the ‘quality of law’ test, namely precision and predictability.

1.209        The committee intends to write to the Minister for the Public Service and Integrity to seek clarification as to why it is necessary for clause 65(2) to allow such broad exceptions to the use of protected disclosure information and ask how this is compatible with the right to privacy.

Presumption of innocence

1.210         The committee notes that proposed new clause 23 provides that if a civil or criminal proceeding is instituted against a person for making a disclosure, a person may seek to claim immunity as a public interest disclosure. Under paragraph 23(1)(a) the person seeking to claim the immunity bears the onus of pointing to evidence that suggests a reasonable possibility that the claim is made out – in effect, reversing the onus of evidential proof. The reason for this reversal is not explained in either the statement of compatibility or the explanatory memorandum. A reversal of the onus of proof engages the right to be presumed innocent in article 14(2) of the ICCPR.

1.211         In addition, clause 57 provides that a person is not subject to any criminal or civil liability because the person gives information or a document when requested to do so during a disclosure investigation, but that this does not apply:

  • to any information that is false or misleading;
  • to a proceeding for breach of a designated publication restriction;
  • to affect a person’s liability for his or her own conduct.

1.212         As this clause is currently drafted it would appear to abrogate the privilege against self-incrimination, which engages the right to be presumed innocent under article 14(2). This is not referred to in the statement of compatibility.

1.213        The committee intends to write to the Minister for the Public Service and Integrity to seek clarification as to why it is necessary to reverse the burden of proof in clause 23 and whether clause 57 is intended to abrogate the prohibition on self-incrimination, and how these provisions are consistent with the right to be presumed innocent in article 14(2) of the ICCPR.

Navigation: Previous Page | Contents | Next Page