Cory Bernardi voted moderately against protecting whistleblowers

The majority voted against an amendment introduced by Greens Senator Sarah Hanson-Young (SA), which means it was unsuccessful.

What did the amendment do?

This amendment relates to Clause 42 of the Australian Border Force Bill 2015, which makes it an offence for an "entrusted person" (which includes Immigration and Border Protection workers) to make a record of confidential information or to disclose confidential information.

Senator Hanson-Young explained her amendment:

The amendment I have circulated deals very specifically with that. It is very simple. It is not saying that everyone can go and blow their whistles as much as they want; it is saying that if there is any type of offence then it needs to be tested against the public interest. That is a decision that the courts should make. It is not a decision for the minister. ... This amendment is important to ensure that there is an independent arbiter, and it must be the courts that stand up for the right of the public service and the right of the Australian people to know what is in the public interest and what information their government is trying to hide from them.

Background to the amendment

Senator Hanson-Young's amendment reflects previous recommendations made by the Australian Law Reform Commission (ALRC) in 2010 in respect to a similar provision int he Crimes Act that applies generally to Commonwealth public servants. Just like Senator Hanson-Young's amendment, the ALRC had recommended that criminal sanctions in law should only apply where disclosure of information would or would likely harm an identifiable public interest. However, those recommendations have yet to be acted on.

Amendment text

(1) Clause 42, page 35 (after line 13), after paragraph (1)(b), insert:

(ba) the making of the record, or the disclosure, causes, is likely to cause, or is intended to cause, harm to a public interest.

How to find out more about the bills

Go to the bills digest to learn more about what the bills do and what issues they raise.

The majority supported passing the bill in the Senate (in parliamentary jargon, they voted to give the bill a third reading). The bill will now go to the House of Representatives to see if the members of parliament (MPs) agree with the senators and also want to pass the bill. If they do, the bill will become law.

Human rights issues

The bill makes many important changes, which the bills digest discusses in some detail. In particular, it extends the powers of the Australian Security Intelligence Organisation (ASIO) and the Australian Secret Intelligence Service (ASIS)

The bill also creates new offences that apply to any person who discloses information that relates to a special intelligence operation (SIO), with a maximum penalty of ten years in jail. Two concerns with these offences are that:

• they don't have exceptions for public interest disclosures or whistleblowing by ASIO employees, and
• they apply to any person, including journalists.

Background to the bill

After the major counter-terrorism raids in Sydney and Brisbane, Prime Minister Tony Abbott said that the balance between freedom and security had to shift (see ABC News). This bill is part of that change.

The bill also seems to be a response to American Edward Snowden leaking classified American intelligence information last year.

Read the bills digest for more information about the bill.

The majority voted against a motion introduced by Greens Senator Scott Ludlam in relation to protection for whistle blowers.

Motion text

That the Senate—

(a) notes:

(i) the resolution of the Senate of 22 November 2012, That the Government was to fulfil its 2007 election commitment and introduce a public interest disclosure bill into the Parliament in the first sitting week of 2013, and

(ii) that this resolution has not been complied with and, to date, there is still no listing of the public interest disclosure bill; and

(b) calls on the Government to:

(i) provide an explanation as to whether it will deliver on its 2007 election commitment, and

(ii) introduce legislation within the current Parliament that would comprehensively protect whistle-blowers across the entire government sector.

The majority voted against a motion introduced by Australian Democrats Senator Andrew Murray (WA), which means it was unsuccessful.

What was the motion?

That the Senate—

(a) notes:

(i) that the Canadian Government has delivered on its commitment to make government more accountable through the Federal Accountability Act, which received Royal Assent on 12 December 2006,

(ii) that through this Act and the associated Action Plan, specific measures will be introduced to help strengthen accountability and increase transparency and oversight in government operations, and

(iii) that the Canadian bill addresses issues which include:

(a) Transparency of donations;

(b) Truth in budgeting;

(c) Protection of whistleblowers;

(d) Strengthening the role of the Auditor-General and the role of the Ethics Commissioner; and

(e) Restrictions on Ministers, ministerial staffers and senior public servants engaging in lobbying after leaving office.

(b) and calls on the Australian Government to consider whether the existing legislative framework in Australia adequately addresses these issues in the interests of Australian democracy.