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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.
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