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senate vote 2023-05-10#2
Edited by
mackay staff
on
2023-05-12 10:44:14
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Title
Bills — Public Interest Disclosure Amendment (Review) Bill 2022; in Committee- Public Interest Disclosure Amendment (Review) Bill 2022 - in Committee - Insert word 'solely'
Description
<p class="speaker">Murray Watt</p><p>by leave—I move amendments (1) to (3) on Sheet ZB203:</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2023-05-10.42.4) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which would have amended [government amendment (2)](https://www.openaustralia.org.au/senate/?id=2023-05-10.18.1) with the words below.
- Senator Shoebridge explained that:
- > *This amendment seeks to implement recommendation 5 of the Moss review. It does a pretty simple thing. It inserts the word 'solely' into the government amendments to reflect the submissions we received in the inquiry that clarified the language to ensure that only matters that were solely in relation to personal work related conduct should be excluded from the operation of the PID [Public Interest Disclosure] scheme.*
- ### Amendment text
- > *AMENDMENT TO GOVERNMENT AMENDMENTS [SHEET ZB203]*
- >
- > *(1) Amendment (2), note to subsection 43(4A), after "because that conduct is", insert "solely".*
- ### Government amendment (2) text
- > *(2) Schedule 1, item 11, page 8 (after line 4), after subsection 43(4), insert:*
- >
- >> *(4A) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, there might be a reasonable basis on which the disclosure could be considered to be an internal disclosure even if:*
- >>
- >>> *(a) the disclosure includes other information; and*
- >>>
- >>> *(b) the other information tends to show (or may tend to show) personal work-related conduct.*
- >>
- >> *Note: A disclosure may include information relating to a number of instances of conduct, some of which may be considered disclosable conduct, and some of which may not (for example, because that conduct is personal work-related conduct). Paragraph (4)(a) does not apply if one or more of those instances provide a reasonable basis on which the disclosure could be an internal disclosure under section 26.*
<p class="italic"> <i>(Government)</i></p><p class="italic">(1) Schedule 1, item 3, page 4 (after line 25), after subsection 29(2A), insert:</p><p class="italic">(2B) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, the disclosure is not prevented from being a public interest disclosure only because:</p><p class="italic">(a) the disclosure includes other information; and</p><p class="italic">(b) the other information tends to show (or may tend to show) personal work-related conduct.</p><p class="italic">(2) Schedule 1, item 11, page 8 (after line 4), after subsection 43(4), insert:</p><p class="italic">(4A) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, there might be a reasonable basis on which the disclosure could be considered to be an internal disclosure even if:</p><p class="italic">(a) the disclosure includes other information; and</p><p class="italic">(b) the other information tends to show (or may tend to show) personal work-related conduct.</p><p class="italic">Note: A disclosure may include information relating to a number of instances of conduct, some of which may be considered disclosable conduct, and some of which may not (for example, because that conduct is personal work-related conduct). Paragraph (4)(a) does not apply if one or more of those instances provide a reasonable basis on which the disclosure could be an internal disclosure under section 26.</p><p class="italic">(3) Schedule 1, item 11, page 11 (after line 33), at the end of paragraph 44A(3)(a), add:</p><p class="italic">(iii) if subparagraph (ii) does not apply—any courses of action that might be available to the discloser under another law or power; and</p><p>I also table a replacement explanatory memorandum relating to this bill and I table a supplementary memorandum relating to the government amendments to be moved to this bill.</p><p>The amendments on Sheet ZB203 would clarify the operation of the personal work related conduct provisions and insert a notification obligation on authorised officers where they decide not to allocate a disclosure because there is no reasonable basis upon which it could be considered an internal disclosure.</p><p>I will briefly outline amendments on sheet ZB203. Amendments (1) and (2) relate to personal work related conduct. The government is proposing two amendments to the Public Interest Disclosure Amendment (Review) Bill 2022 to clarify the operation of the personal work related conduct provisions. Disclosures of integrity related wrongdoing are often accompanied by allegations of other personal workplace related conduct. The first two amendments would insert an avoidance of doubt provision to clarify how the framework will operate where a person makes a mixed disclosure that contains elements of both personal work related conduct such as an allegation of bullying, harassment or undue performance management, and integrity related wrongdoing such as fraud, corruption or maladministration.</p><p>The first amendment will make clear for whistleblowers and agencies that mixed disclosures are not prevented from being a public interest disclosure, only because the disclosure includes information that tends to show personal work related conduct. The second amendment will provide greater clarity for authorised officers in agencies about how to handle mixed disclosures. The amendments will make clear for both whistleblowers and agencies that disclosures of integrity related wrongdoing will not be excluded from the Public Interest Disclosures Act framework only because they also contain a disclosure about personal work related conduct. The existing measures in the bill already have this effect. However, these amendments will put beyond doubt that the personal work related conduct provisions contained in the bill would operate to exclude only personal work related conduct from the PID Act. Importantly, the protections under the PID Act would continue to apply to public interest disclosures which include one or more instances of disclosable conduct, even if the disclosure also includes personal work related conduct.</p><p>Amendment 3 concerns notification obligations where an authorised officer decides not to allocate a disclosure because there is no reasonable basis on which it could be considered an internal disclosure. The government is proposing an amendment that would apply in circumstances where an authorised officer decides not to allocate the disclosure for investigation under the PID Act because the authorised officer is satisfied on reasonable grounds that there is no reasonable basis on which the disclosure could be considered an internal disclosure within the meaning of the act. The amendment would require the authorised officer to notify a discloser of any other course of action that might be available to them under another law or power, such as under the Public Service Act 1999. The amendment would ensure that the authorised officer is required to provide information to a discloser about how else they may take forward their disclosure of wrongdoing, when the authorised officer has decided that there is no reasonable basis on which it could be considered an internal disclosure, and so it cannot be dealt with under the PID Act.</p> <p class="speaker">Michaelia Cash</p><p>The coalition will be supporting these amendments. Items 1 and 2 are avoidance of doubt provisions. These provisions will make clear that disclosable conduct is not excluded from the PID scheme if a complaint also includes information that is personal work related conduct. The legislative note to item 2 helpfully confirms that a single disclosure which relates to multiple instances of conduct is not excluded if one or more of the instances is disclosable conduct. This is consistent with the coalition government's response to recommendation 5 of the Moss review. Similarly, item 3 would require the decision-maker to tell the discloser what options they may have outside the PID Act, even if it is not immediately clear that the matter should be dealt with under another law or power. We believe that these are sensible amendments, and the coalition, as I said, will be supporting them.</p> <p class="speaker">David Shoebridge</p><p>The Greens, too, will support these amendments, but we have some questions we'll be asking of the minister about the intent behind the amendments and how they'll actually operate in practice. I acknowledge that the Attorney-General and his department have engaged with the issue and the submissions that came into the inquiry that made it very clear that pretty much no key stakeholder was satisfied that the bill, as initially drafted, actually implemented recommendation 5 of the Moss review and that the carve-out was likely to create significant concerns. One of the concerns that was raised in the committee that hasn't been addressed by the government—and I might put my first question to the minister in this regard—is that the Ombudsman's office made it very clear that having these multiple tests in 29(2A) and 43(4), where disclosure tends to show or may tend to show disclosable conduct, was likely to be contested by whistleblowers, particularly if there was an adverse conclusion from the decision-maker. It was likely to be tested by whistleblowers and then referred to the Ombudsman, seeking the Ombudsman's review of those decisions. Now we have two separate points where that decision could be made. My first question to the minister is: has the department engaged with the Ombudsman's office to try and address the concerns that the Ombudsman's office raised in the inquiry on these points?</p> <p class="speaker">Murray Watt</p><p>Thanks, Senator Shoebridge. I understand that the government has engaged with the Ombudsman and the Ombudsman's office about this matter and that guidance will be provided to whistleblowers to address those issues.</p> <p class="speaker">David Shoebridge</p><p>Thanks, Minister. My memory of the Ombudsman's evidence was that they expected something like that to occur in relation to the bill as originally drafted. Their concern was that, even with the guidance, there is likely to be a substantial uplift in the work that the Ombudsman's office is required to do. I note that the current budget provides no additional funding for the Ombudsman to do this work. Did the government consider this, and did the government get a resource request from the Ombudsman? That's what they said to the committee. They said very clearly to the committee: 'We're already strapped. We don't have enough resources to do our existing work. This is going to put a whole lot of additional burden on us, with some highly agitated individuals who tend to be quite resource needy because they've got concerns about whistleblowing and it can be complex.' My question is two parts: did the Ombudsman make a resource request and has the government addressed it?</p> <p class="speaker">Murray Watt</p><p>Thanks, Senator Shoebridge. Certainly, the resourcing issues for the Ombudsman are something the government is considering, and we will continue to engage with the Ombudsman about any resourcing needs they have in relation to this piece of work.</p> <p class="speaker">David Shoebridge</p><p>I have to say that those answers don't address the concerns that were raised by the Ombudsman's office. It highlights the concerns the Greens have with the form of this amendment because the proposal that was being put forward by a number of stakeholders was that we adopt the wording in the Moss Review, which is that matters that are solely personal, work-related matters are excluded from the PID act, but you limit the carve-out to just that. It's an easy test. You can see the test readily applied. But the government now has, effectively, a first-stage test under subclauses 29(2A) and 43(4) where it says:</p><p class="italic">(2B) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, the disclosure is not prevented from being a public interest disclosure …</p><p>That's likely to be a highly contested definition in circumstances. If it gets through that gateway, there is a separate test that may apply to the same complaint under section 43(4), that says:</p><p class="italic">(4A) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, there might be a reasonable basis on which the disclosure could be considered to be an internal disclosure even if:</p><p class="italic">(a) the disclosure includes other information; and</p><p class="italic">(b) the other information tends to show (or may tend to show) personal work-related conduct.</p><p>Each of those steps, the Ombudsman told us, is likely to be contested by a whistleblower or someone who purports to be a whistleblower and has an adverse conclusion against them by the decision-maker. Minister, who is going to be making the decision under 29(2A)? The second part of my question flows from that, which is: who will be making the decision under 43(4)?</p> <p class="speaker">Murray Watt</p><p>I am advised that it will be the authorised officer under the PID scheme for both matters you are referring to.</p> <p class="speaker">David Shoebridge</p><p>I understand from your earlier answer, Minister, that there will be some guidance given. Is it intended that the Ombudsman's office will draft that guidance for the authorised officers, or is it intended that that will come from the Attorney-General's Department? Again, I come back to the point that all of the concerns raised by the Ombudsman's office now seems to be highlighted by these amendments. I'm not speaking against adopting the amendments—the amendments make it better. They actually narrow the carve-out and allow for mixed matters to still be considered as a PID complaint, and that's a step forward. But the way in which this is drafted highlights the resource concerns within the department from the authorised officer and the process the authorised officer would have to go through, and then the resource concerns that will almost inevitably flow to the Ombudsman in seeking a review of those decisions. Obviously, whether a matter is accepted as a PID or not fundamentally changes the protections that are offered to a public servant or somebody working in an agency. If their complaint is accepted as a PID they have a whole lot of protections. If it is not accepted as a PID then the response that can be taken against them is pretty much at large. So, who is going to be drafting the guidelines, and what, if any, assurances can you give that the Ombudsman's evidence won't come true?</p> <p class="speaker">Murray Watt</p><p>The Ombudsman and the Ombudsman's office will be drafting the guidelines, and that will be undertaken in consultation with the Attorney-General's Department.</p> <p class="speaker">David Shoebridge</p><p>I thank the minister for that clarification. I said in my contribution to the second reading debate that when the bill was first presented, many months ago, real agitation came from the Attorney-General's office about any suggestion that we have an inquiry. It was a 'How dare we have an inquiry' kind of response that came back from the AG's office. Of course, the inquiry has been essential, because it's highlighted the concerns that have led to these amendments, which I think will go a significant way to improving an identified problem in the bill. But in the course of that communication with the Attorney-General's office the suggestion was made that if we hadn't passed this in March then the Public Service and the public sector wouldn't be ready to implement it by the time the NACC opened its doors. Well, for some reason inexplicable to us in the Greens, the Attorney failed to bring this on in the last session. It was ready to go. The amendments were all drafted. The committee report had been provided. It was all ready to go last month. But for reasons that have never been publicly explained, the government chose not to bring it on.</p><p>So, my question I suppose is in two parts. The first part is: why was it not brought on, given the purported urgency that had come out of the Attorney's office? Secondly, what preparatory steps are being taken to ensure that it's going to be able to be operationalised by 1 July when the NACC opens its doors?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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