Public Interest Disclosure Amendment (Review) Bill 2022 [2023] AUSStaCSBSD 8 (8 February 2023)

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Purpose	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.
Portfolio	Attorney-General
Introduced	House of Representative on 30 November 2022

Reversal of the evidential burden of proof^[64]

1.108 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.

1.109 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.

1.110 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[65] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interfere with this common law right.

1.111 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.

1.112 The explanatory memorandum states that requiring the prosecutor to prove that the relevant conduct was not reasonable administrative action is 'a significantly higher onus for the prosecution to discharge' and 'is also more costly for the prosecution to disprove than for the defendant to establish these matters'. It further states that 'the question of whether something is reasonable administrative action will be peculiarly within the knowledge of the defendant, and will not be known to the prosecution'.^[66]

1.113 The committee considers that whether an administrative action is 'reasonable' is not a matter peculiarly within the knowledge of the defendant but is an objective test. Determining whether something is a reasonable administrative action is therefore something knowable to the prosecution and is a question of law.

1.114 The committee further notes that subsection 13(3) of the principal Act provides that reasonable administrative action is not an element of the definition of taking a reprisal. The committee considers this approach could be carried over to the proposed section 19 offence, such that engaging in reasonable administrative action could be considered not an element of the offence of taking a reprisal, rather than as an exception (offence-specific defence).

1.115 The committee requests the minister's advice as to why determining whether conduct is reasonable administrative action is considered peculiarly within the knowledge of the defendant.

1.116 The committee suggests 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 requests the minister's advice in relation to this matter.

Broad delegation of administrative powers or functions^[67]

1.117 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, which includes contracted service providers and employees of contracted service providers, and aligns the delegation powers of the Ombudsman and IGIS with the principal officers of other agencies.

1.118 Proposed subsection 77(2) provides that a person exercising functions or powers under a delegation must comply with any directions of the principal officer who delegated the function or powers.

1.119 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation as to why these are considered necessary should be included in the explanatory memorandum.

1.120 The explanatory memorandum explains that under the current Act, unlike other Commonwealth agencies, the Ombudsman 'cannot delegate functions to external contractors who may be engaged to undertake PID investigations' and 'the engagement of contractors to undertake specified work is a common practice in Commonwealth agencies, as contractors can have unique expertise or experience which make them best placed to consider a particular matter'.^[68]

1.121 While it may be appropriate for some officers with appropriate skills and experience to exercise particular delegated powers or functions, the explanatory memorandum does not explain why it is appropriate to include such a broad delegation power to officials at any level. The committee does not consider a requirement of compliance with any directions of the principal officer who delegated the function or power to be a sufficient safeguard in and of itself.

1.122 The committee's concerns are heightened by the power to delegate 'any or all' functions or powers under this Act, as the Act contains significant powers relating to the sharing and reporting of personal information.

1.123 The committee requests the minister'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).

1.124 The committee requests the minister's advice as to whether the bill could be amended to:

Immunity from civil and criminal liability^[69]

1.125 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. Proposed subsection 12A(1) defines a witness as any person providing assistance in relation to a public interest disclosure other than the discloser. Proposed subsection 12A(5) also provides that a witness has absolute privilege in proceedings for defamation in respect of the assistance provided, and a contract to which the witness is a party must not be terminated on the basis that the assistance provided constitutes a breach of the contract.

1.126 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. Currently, the Act provides immunity for a principal officer or their delegate, an authorised officer or a supervisor of a person who makes a disclosure for, or in relation to, an act or matter done, or omitted to be done, in good faith in the performance or purported performance of any function conferred on the person by the Act, or in the exercise or purported exercise of any power conferred on the person by the Act. This provision extends the immunity to include a person assisting a principal officer of an agency or a delegate of the principal officer in doing anything in relation to the above.

1.127 Providing immunity from civil liability would remove any common law right for an individual to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that a lack of good faith is shown.^[70] The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve a personal attack on the honesty of a decision-maker. As such, the courts have taken the position that bad faith can only be shown in very limited circumstances. The committee expects that if a bill seeks to provide immunity from civil or criminal liability, particularly where such immunity could affect individual rights, this should be soundly justified. This is particularly the case when a broad immunity is provided.

1.128 In this case, providing witnesses with these protections (a witness being anyone providing assistance in relation to a public interest disclosure other than the discloser) in section 12A and persons providing assistance to a principal officer or delegate in paragraph 78(1)(c) will extend the existing immunity to a much broader class of people, and therefore the committee expects the proposed immunity from liability to be soundly justified given this limitation on personal rights.

1.129 In relation to proposed section 12A, the explanatory memorandum states that it 'would enable witnesses to contribute to PID [public interest disclosure] investigations without the threat of reprisal and assist agencies to investigate disclosures more effectively' and aligns the protections for witnesses with protections for disclosers.^[71] In relation to paragraph 78(1)(c), the explanatory memorandum states that this provision would 'reassure public officials providing assistance to the principal officer in relation to a disclosure by reducing their civil liability for actions done in good faith in providing such assistance. This would, in turn, support better investigations of disclosures and facilitate a pro-disclosure culture within government.'^[72]

1.130 The committee considers that providing reassurance to public officials, who already hold existing obligations to use their best endeavours to assist the principal officer to perform their functions under the Act,^[73] is not a sufficient reason in itself to provide extensive immunities to such a broad class of individuals. Supporting better investigations and cultural change can be sought through other means, including amendments already proposed in the bill, for example proposed sections 59 and 60A which provide additional obligations on principal officers and supervisors to, amongst other things, facilitate public interest disclosures, provide training and education about the PID Act and to protect public officials from reprisals. The committee considers that while it is important to include measures to support the functioning of the scheme, consideration should also be given to whether all of the immunities are reasonable in this context and whether there are other measures that could support the public interest disclosure scheme while also reducing the limitation on the personal rights of individuals to bring a civil action. While the committee acknowledges the importance of the public interest disclosure scheme set out in the PID Act and that it may be appropriate to provide immunity from civil liability in some circumstances, it considers that more justification for the immunity would be appropriate in this case.

1.131 The committee requests the minister'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.

1.132 The committee's consideration of this issue will be assisted if the minister's advice addresses what, if any, alternative protections are afforded to an affected individual given that the normal rules of civil liability have been limited by the bill.

[64] 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).

[65] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

[67] Schedule 2, item 18, proposed section 77. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[69] 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 this provision pursuant to Senate standing order 24(1)(a)(i).

[70] Where a provision does not specifically provide that good faith is required, there is some judicial support for the position that good faith may be implied in relation to acts undertaken by public officers, see Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94 [103].

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests