24 June 2013

The Public Interest Disclosure Bill passed in the Australian federal House of Representatives last week.  This reflects endeavours over five years – although bill itself was only introduced to Parliament in March this year. Despite its political sensitivities the Bill seems to have Senate support and despite many opposition proposals for change (one being successful) and 73 Government amendments, it passed through the House of Representatives within three months.

The purpose of the Act is similar to New Zealand’s Protected Disclosures Act, with a similar process for disclosures to be made to the agency or other specified authorities.  The range of conduct which constitutes “disclosable conduct” is broader than in the New Zealand Act, for example specifying wrongdoing such as the abuse of public trust and scientific misconduct in the reporting of research.

A substantial variation from the New Zealand model is allowing a public interest disclosure to be made to the media in some circumstances. The information disclosed must be no more than is reasonably necessary in the public interest (which seems to invite interminable litigation). A number of Government amendments reframe the distinction between internal and external disclosures   A Green party amendment included in the Act is that wrongdoing that increases the risk of danger to the environment is an external disclosure that can be disclosed to the media.

The Act makes clear that information is not disclosable if it relates only to government policy, or action taken by a Minister.

A topical feature is that intelligence agencies are covered by the legislation so that a staff may disclose unlawful conduct – but not outside of Government.  What is lawful will be for the Inspector General of Intelligence to decide.

The New Zealand experience is that few protected disclosures seem to relate to matters of substance, often being associated with personal grievance issues. The apparent absence of protected disclosures relating to recent high profile incidents including agencies mishandling personal information, Novopay, GCSB etc suggests that the Protected Disclosures Act is not seen by public servants as a realistic tool.  That may flow from uncertainty about the effectiveness of protection.

The Australian legislation gives a focus to protection  The Bill, as introduced, included a six month imprisonment penalty for breaching immunity provisions.  Last week’s amendments included increasing that penalty to two years imprisonment. This may give sufficient confidence to officials to disclose wrongdoing in government. Where an official who has made a disclosure brings an unsuccessful Court action for a breach of their protection rights, the Court cannot make an order that they pay the defending party’s costs unless the court is satisfied their claim was vexatious or that they acted unreasonably, and the other party was forced to incur costs.