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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Public Interest Disclosure Act 2013 in
order to deliver priority reforms to the existing Commonwealth public sector
whistleblowing framework established by the Public Interest Disclosure Act
2013.
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Portfolio
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Attorney-General
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Introduced
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House of Representative on 30 November 2022
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Bill status
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Before the House of Representatives
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2.113 Item 46 of Schedule 1, part 3 of the bill seeks to substitute section 19 of the Public Interest Disclosure Act 2013 (PID Act) to amend an existing offence for reprisals in relation to disclosures. Proposed subsection 19(1) provides that a person commits an offence in relation to another person if the first person engages in conduct resulting in detriment to the second person, and when the conduct is engaged in, the first person believes or suspects that the second person or any other person has made, may have made, proposes to make or could make a public interest disclosure, and the belief or suspicion is the reason or part of the reason for engaging in the conduct. Proposed subsection 19(2) provides it is an offence in relation to another person if the first person engages in conduct that consists of, or results in, a threat to cause detriment and the second person is reckless as to whether the second person fears that the threat would be carried out.
2.114 Proposed subsection 19(4) provides a defence to the offence provisions in subsections 19(1) and 19(2) if the conduct engaged in by the first person is administrative action that is reasonable to protect the second person from detriment. The note to proposed subsection 19(4) states that the defendant bears the evidential burden in relation to the matter.
2.115 In Scrutiny Digest 1 of 2023 the committee requested the Attorney-General's advice as to why determining whether conduct is reasonable administrative action is considered peculiarly within the knowledge of the defendant.
2.116 The committee suggested that it may be appropriate for the bill to be amended to provide that a reasonable administrative action is specified as not an element of the offence, rather than as an exception to the offence. The committee also requested the Attorney-General's advice in relation to this matter.[49]
Attorney-General's response[50]
2.117 The Attorney-General advised that the reversal of the evidential burden of proof is justified in this instance because the reason why a person engaged in certain conduct is information that will be peculiarly within their knowledge.
2.118 The Attorney-General acknowledged that the question of whether particular administrative action was 'reasonable' to protect a person is an objective test. However, the Attorney-General also noted that whether a particular action was reasonable would generally be informed by considerations such as:
• whether the defendant apprehended that there was a risk that the person would be subjected to reprisal action and, if so, the likelihood of that risk and the reasons for that apprehension;
• what, if any, alternative means may have existed within the particular work environment to protect the discloser from reprisal action;
• any likely secondary benefits or risks associated with any such alternative means of protecting the discloser, and
• the reasons for which the defendant elected to take the administrative action.
2.119 The Attorney-General advised that the facts that inform these considerations will typically be peculiarly within the knowledge of the defendant. For example, in the case where the defendant is alleged to have engaged in reprisal action by changing the discloser's supervision arrangements, matters that would be peculiarly within the defendant's knowledge would likely include:
• the defendant's assessment of the risk of reprisal action at the time that they took the administrative action, and the facts known to the defendant that informed that assessment;
• the defendant's understanding of the professional and personal relationships between supervisors within the relevant work area (which may be relevant to the question of whether assigning a particular supervisor would be likely to mitigate any risk of reprisal) and the skills, capabilities and expertise of each supervisor (which may be relevant to the question of whether a particular supervisor would be an appropriate, alternative supervisor), and
• the professional judgments made by the defendant, in reaching their decision to take particular administrative action.
2.120 The Attorney-General noted that once the defendant has adduced evidence that suggests a reasonable possibility that their conduct constituted administrative action that was reasonable to protect a person from detriment, or has pointed to evidence already adduced by the prosecution that suggests that reasonable possibility, the onus will shift back to the prosecution to disprove this beyond a reasonable doubt. Whether the conduct was reasonable administrative action will ultimately be a matter for the court to determine.
2.121 In relation to the committee's request to amend the bill to provide that a reasonable administrative constitutes an element of the offence, rather than an exception to the offence, the Attorney-General advised that this would be inappropriate because this would be an unjustifiably difficult onus for the prosecution to discharge. In this context, the Attorney-General noted:
Existing section 13 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) provides the definition of 'takes a reprisal' for the purposes of the Act. The current formulation of that section provides that a person does not take a reprisal to the extent that the person takes administrative action that is reasonable to protect the other person from detriment, as per existing subsection 13(3). The offence for taking a reprisal is contained separately in existing section 19, which provides that a person commits an offence if the person takes a reprisal (as defined in section 13) against another person. The prosecution must prove the elements of the offence beyond reasonable doubt.
Consequently, a prosecutor must prove that the relevant conduct was not reasonable administrative action (as per the definition in existing subsection 13(3)) in order for conduct to constitute 'taking a reprisal' under the section 19 offence. That is, the prosecution must prove beyond reasonable doubt that the defendant was aware there was a substantial risk the conduct was not administrative action that is reasonable to protect the second person from detriment and, in all the circumstances known to the defendant, it was unjustifiable to take that risk. This is an unjustifiably difficult onus for the prosecution to discharge.
Reframing reasonable administrative action as a defence to the reprisal offence, rather than being an element of the offence, enables the evidential burden of proof for the defence to be reversed to address the difficulty that is otherwise faced by the prosecution. Proposed subsection 19(4) places the onus on the defendant to point to evidence that suggests a reasonable possibility that their action was reasonable administrative action in the circumstances, in recognition that the reasons for the conduct will be peculiarly within their knowledge. Once this evidence is adduced, the onus will shift back to the prosecution to prove beyond reasonable doubt that the conduct was not reasonable administrative action.
2.122 Finally, the Attorney-General advised that additional information will be included in the explanatory memorandum to clarify the intended operation of the reverse onus of proof in relation to the defence of reasonable administrative action.
Committee comment
2.123 The committee thanks the Attorney-General for this detailed response.
2.124 The committee acknowledges the Attorney-General's advice that many of the matters that may be required to be adduced in order to make out a defence under section 19 that relevant conduct constitutes 'reasonable administrative action' could be peculiarly within the knowledge of the defendant. However, the committee notes that given the vagueness of the defence it is equally possible to conceive of a list of relevant matters which would not be peculiarly within the knowledge of a potential defendant.
2.125 Given the generality of the defence set out at proposed section 19, the committee does not consider that it is appropriate to reverse the evidential burden of proof in this instance. The committee considers that it would have been more appropriate to provide a more specific defence at proposed section 19, or to have relied on the general defences set out in the Criminal Code. The committee's concerns are heightened given that the 'reasonableness' element of the defence would require a defendant to raise evidence to prove an objective legal test on the balance of probabilities.
2.126 The committee welcomes the Attorney-General's undertaking to update the explanatory memorandum for the bill.
2.127 The committee otherwise draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to an offence under proposed section 19 of the Public Interest Disclosure Act 2013.
2.128 Item 18 of Schedule 2 to the bill substitutes section 77 to expand the delegation powers of the Ombudsman and the Inspector-General of Intelligence and Security (IGIS). This provision allows the Ombudsman and the IGIS to delegate any or all of their functions or powers under the PID Act to a public official belonging to the agency.
2.129 In Scrutiny Digest 1 of 2023 the committee requested the Attorney-General's advice as to why it is necessary and appropriate to allow any or all of the powers or functions of a principal officer to be delegated to a public official who belongs to the agency (which includes any APS employee at any level and contractors).
2.130 The committee requested the Attorney-General's advice as to whether the bill could be amended to:
• require that a principal officer, when making a delegation under proposed subsection 77(1), must be satisfied that the person has the appropriate training, qualifications or experience to appropriately exercise the delegated powers or functions; and
• limit the delegation of a principal officer's powers or functions to specified categories of people.[52]
Attorney General's response[53]
2.131 The Attorney-General advised that allowing principal officers to delegate any or all of their functions or powers to APS employees of any level is necessary to facilitate effective investigations for all agencies under the PID Act. The PID Act applies broadly across the Commonwealth public sector, including both small and large agencies. The principal officer is primarily responsible for conducting investigations under the PID Act. The Attorney-General advised that, in some cases, there may be a real or perceived risk of bias or conflict of interest during an investigation in an agency where there is a limited pool of appropriately senior or experienced staff to conduct an investigation.
2.132 In addition, the Attorney-General considered that it may also hinder efficient investigation of disclosures if agencies are unable to delegate these functions and powers to a lower level, particularly if there are limited numbers of senior staff with appropriate expertise in an agency. Given this, the Attorney-General considered that allowing a principal officer to delegate their functions or powers under the PID Act to an APS employee of any level in the agency, or a contractor, will assist in managing these issues by broadening the scope of staff who can conduct an investigation, or part of an investigation.
2.133 The Attorney-General also advised that this broad delegation power is necessary to allow a principal officer to delegate parts of their powers to staff with appropriate expertise as needed. For example, a principal officer may need to delegate fact-finding aspects of the investigation to an APS employee of a non-senior level, whilst retaining ultimate principal officer decision-making power for the final investigation report. The Attorney-General considered that this flexibility ensures that the most appropriate officer in an agency can undertake components of the PID investigation as required by that particular agency, which would not be possible by legislatively confining the scope of powers or class of persons to whom these powers may be delegated.
2.134 Additionally, the Attorney-General noted that the principal officer's powers and functions are not coercive in nature. Instead, they are primarily focused on investigating disclosures within their own agency and preparing reports.
2.135 The Attorney-General advised that the approach taken within the bill would also provide greater flexibility to the Ombudsman and the IGIS to delegate their functions under the PID Act, including to undertake PID investigations. In this context, the Attorney-General noted that the engagement of contractors to undertake specific work is a common practice in Commonwealth agencies because some disclosures require expertise in a particular area or type of investigation, for which it would be appropriate to engage external contractors in order to harness the necessary expertise to address disclosures of wrongdoing.
2.136 In relation to the committee's query as to whether the bill could be amended, the Attorney-General considered that an amendment was not necessary because this might reduce flexibility. The Attorney-General also noted that:
The delegation provision is intended to allow the principal officer to delegate any of their functions or powers under the Act as required. The principal officer, when delegating functions or powers under the Act, can consider the training, qualifications and experience of a person to ensure this is appropriate to the powers and functions they would be exercising under the delegation. The Bill does not prevent the principal officer from considering such matters as part of a delegation. However, the principal officer will likely need to balance a range of considerations when making a delegation. In particular, the Bill and Act place several positive obligations on the principal officer, including the duty to provide ongoing training about the PID Act relating to integrity and accountability, and the duty to establish procedures for facilitating and dealing with public interest disclosures relating to the agency. Further, the established procedures for dealing with public interest disclosures, such as the need to complete investigations within 90 days, will need to be taken into account when making any delegation decisions.
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The PID Act applies broadly across the Commonwealth public sector, and therefore, requires additional flexibility to accommodate investigations across both small and large agencies. The level of principal officer delegates varies across agencies. Smaller agencies in particular require flexibility when delegating principal officer functions and powers, as the size of the agency can mean that there are limited persons to whom functions and powers can be delegated, and it may not always be possible for the principal officer to delegate functions to persons of a particular level.
2.137 The Attorney-General advised that additional information will be included in the explanatory memorandum to clarify the points raised above.
Committee comment
2.138 The committee thanks the Attorney-General for this detailed response.
2.139 The committee notes the Attorney-General's advice in relation to the operational needs for flexibility in this context. However, the committee considers that it would be possible to provide the necessary flexibility while still maintaining appropriate limits over the exercise of the delegations power.
2.140 While it may be inappropriate to provide a restrictive list of the classes of persons who may be delegates or subdelegates, it is not clear to the committee why it would not be possible to at least provide that delegates have the appropriate skills, training, qualifications and experience. As noted by the Attorney-General, this is a particularly important consideration in the context of delegating powers or functions to external contractors.
2.141 The committee welcomes the Attorney-General's undertaking to update the explanatory memorandum for the bill.
2.142 The committee otherwise draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of delegating the principal officer's powers to a broad class of people with no accompanying legislative requirement that delegates have the appropriate training, qualifications, skills or experience.
2.143 Item 40 of Schedule 1, part 3 of the bill seeks to insert subsections 12A(3)-(5) into the PID Act. These proposed subsections provide immunity from civil, criminal or administrative action (including disciplinary action) and immunity from enforcement of remedies or rights to witnesses.
2.144 Item 19 of Schedule 2 to the bill seeks to insert proposed paragraph 78(1)(c) into the PID Act to extend immunity from any disciplinary action, or criminal or civil liability.
2.145 In Scrutiny Digest 1 of 2023 the committee requested the Attorney-General's more detailed advice as to why it is considered necessary and appropriate to give an individual providing assistance in relation to a public interest disclosure under proposed section 12A, and a person assisting a principal officer of an agency or a delegate of the principal officer under proposed paragraph 78(1)(c), with immunity from civil liability, such that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.[55]
Attorney General's response[56]
2.146 The Attorney-General advised that introducing new immunities from civil and criminal liability is necessary to ensure witnesses to wrongdoing feel confident to come forward and provide assistance in relation to a disclosure investigation. The Attorney-General noted that the PID Act does not provide immunities to witnesses who voluntarily provide information without being requested to do so but that a disclosure investigation may be hampered if a witness does not provide this assistance. In this context, the Attorney-General noted that providing strong protections to witnesses who voluntarily provide information, produce a document or answer a question in relation to an investigation, supports them to come forward and helps agencies conduct more comprehensive investigations. The Attorney-General advised that this ultimately reduces the possibility that wrongdoing will go unaddressed.
2.147 The Attorney-General noted that the immunities provided to public officials under the bill correspond to the obligations on these officials to use their best endeavours to assist:
• the principal officer of an agency in the conduct of an investigation; and
• any other public official to exercise a right, or perform a function under the PID Act.
2.148 The Attorney-General considered that providing immunities to public officials who assist a principal officer or their delegate with performing functions or exercising powers under the Act is appropriate in light of these obligations. The Attorney-General advised that this approach works to support a pro-disclosure culture in which public officials are encouraged to report wrongdoing, and are provided with appropriate protections when doing so.
2.149 In relation to the committee's request for advice on what alternative protections are afforded to affected individuals, noting that the normal rules of civil liability have been limited by the bill, the Attorney-General noted that:
• affected individuals will continue to have access to legal remedies where false or misleading statements have been made about them;
• affected individuals will continue to have access to legal remedies where a relevant action was not undertaken in good faith; and
• affected individuals must be afforded procedural fairness in the course of a disclosure investigation.
Committee comment
2.150 The committee thanks the Attorney-General for this response.
2.151 The committee notes the Attorney-General's advice that the immunities from civil liability proposed to be introduced by the bill are necessary to support a
pro-disclosure culture in which public officials are encouraged to report wrongdoing.
2.152 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the Attorney-General be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.153 In light of the detailed information provided by the Attorney-General, the committee makes no further comment on this issue.
[48] Schedule 1, part 3, item 46, proposed section 19. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[49] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 32–33.
[50] The Attorney-General responded to the committee's comments in a letter dated 24 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.
[51] Schedule 2, item 18, proposed section 77. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).
[52] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 33–35.
[53] The Attorney-General responded to the committee's comments in a letter dated 24 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.
[54] Schedule 1, part 3, item 40, proposed subsections 12A(3)‑(5) and schedule 2, item 19, proposed paragraph 78(1)(c). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[55] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 35–37.
[56] The Attorney-General responded to the committee's comments in a letter dated 24 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.
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