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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PUBLIC INTEREST DISCLOSURE AMENDMENT (REVIEW) BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
AMENDMENTS TO THE PUBLIC INTEREST DISCLOSURE AMENDMENT
(REVIEW) BILL 2022
(Government)
GENERAL OUTLINE
1. The primary purpose of these amendments to the Public Interest Disclosure
Amendment (Review) Bill 2022 ('the Bill') is to provide greater clarity around the
operation of the amendments which would exclude 'personal work-related conduct'
from the scope of disclosable conduct under the Public Interest Disclosure Act 2013
(Cth) (PID Act). The proposed amendments would go further than
recommendations 1 and 2 of the Senate Standing Committee on Legal and
Constitutional Affairs ('the Senate Committee') report in its inquiry into the Bill
('the Senate Committee Report') to address key issues raised in the Senate
Committee report, informed by submissions and testimonies made to the Senate
Committee inquiry into the Bill.
2. In summary, these amendments would:
• insert an avoidance of doubt provision to make clear that the exclusion of
'personal work-related conduct' from the definition of disclosable conduct in new
subsection 29(2A) would operate to exclude only personal work-related conduct,
and
• insert an avoidance of doubt provision to clarify how the allocation provision in
subsection 43(4) applies where there are multiple instances of conduct disclosed,
including both disclosable conduct and personal work-related conduct.
3. These amendments would also amend proposed new section 43 to require an
authorised officer to notify a discloser of any other course of action that might be
available to them where the disclosure is not allocated under paragraph 43(4)(a) -
that is, because there is no reasonable basis on which the disclosure could be
considered an internal disclosure under the PID Act.
FINANCIAL IMPACT
4. There are no financial impacts associated with these amendments.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Public Interest Disclosure Amendment (Review) Bill 2022
1. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The primary purpose of these amendments to the Public Interest Disclosure
Amendment (Review) Bill 2022 ('the Bill') is to provide greater clarity around the
operation of the amendments which would exclude 'personal work-related conduct'
from the scope of disclosable conduct under the Public Interest Disclosure Act 2013
(Cth) (PID Act). The proposed amendments would go further than recommendations
1 and 2 of the Senate Standing Committee on Legal and Constitutional Affairs ('the
Senate Committee') report of its inquiry into the Bill ('the Senate Committee
Report') to address key issues raised in the Senate Committee report, informed by
submissions and testimonies made to the Senate Committee inquiry into the Bill.
3. In summary, these amendments would:
• insert an avoidance of doubt provision to make clear that the exclusion of
'personal work-related conduct' from the definition of disclosable conduct in new
subsection 29(2A) would operate to exclude only personal work-related conduct,
and
• insert an avoidance of doubt provision to clarify how the allocation provision in
subsection 43(4) applies where there are multiple instances of conduct disclosed,
including both disclosable conduct and personal work-related conduct.
4. These amendments would also amend proposed new section 43 to require an
authorised officer to notify a discloser of any other course of action that might be
available to them where the disclosure is not allocated under paragraph 43(4)(a) -
that is, because there is no reasonable basis on which the disclosure could be
considered an internal disclosure under the PID Act.
Human rights implications
The right to work and rights in work, contained in articles 6(1), 7 and 8(1)(a) of the
ICESCR
5. The amendments to the Bill engage the right to work and rights in work are contained
in articles 6(1), 7 and 8(1)(a) of the ICESCR. The right encompasses the right not to
be unjustly deprived of work, or be subject to unfair dismissal.
6. Part 1 of the Bill would make amendments to focus the PID Act on significant
integrity wrongdoing, by removing 'personal work-related conduct' from the scope
of disclosable conduct under the PID Act (see items 1 to 4 of Part 1 of Schedule 1).
These amendments would necessarily limit instances in which public officials can
pursue a matter under the PID Act, including receiving protections from reprisal
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actions, such as unfair dismissal (see item 88 of Part 7 of Schedule 1, item 3 of part 1
of Schedule 1 and item 15 of Schedule 2).
7. Amendments 1 and 2 would include two new avoidance of doubt provisions to make
clear that the 'personal work-related conduct' exclusion from the scope of disclosable
conduct in subsection 29(2) operates to exclude only personal work-related conduct
from the scope of the PID Act.
8. The amendments would provide greater clarity as to the intended operation of the
amendments in items 1 to 4 of Part 1 of Schedule 1 of the PID Bill. As such, they
would not have any additional impact on the right to work and rights in work. The
human rights implications of the substantive amendments in Part 1 of Schedule 1 of
the PID Bill are addressed in the statement of compatibility for the Bill. However, for
the reasons discussed below, any limitations on the right to work and rights in work
caused by these provisions are reasonable, proportionate and necessary to achieve a
legitimate objective.
Reasonable, proportionate and necessary to achieve a legitimate objective
9. Recommendation 5 of the Moss Review stated that the PID Act should be amended
to focus on wrongdoing such as fraud, serious misconduct, and corrupt conduct in
order to achieve its intended integrity and accountability aims.
10. Removing solely 'personal work-related conduct' from the PID Act is necessary to
achieve the legitimate purpose of re-focusing the PID Act on integrity related
wrongdoing. This approach is not to suggest that agencies should ignore other forms
of wrongdoing or workplace conflict but recognises that the majority of personal
work-related conduct is more appropriately dealt with through other processes,
including existing dispute resolution processes within agencies.
11. This exclusion is also appropriately tailored and reasonable, as solely personal
work-related conduct would still fall within the PID Act's remit if it relates to reprisal
action, or if the conduct is of such a significant nature that it would undermine public
confidence in an agency or has other significant implications for an agency. This
ensures serious personal work-related conduct, such as terminating a staff member's
employment as punishment for making a disclosure, would still fall within the scope
of the PID Act.
12. Amendments 1 and 2 make clear on the face of the PID Act, that only 'personal
work-related conduct' is excluded from the scope of disclosable conduct by
subsection 29(2A). The existing measures in the Bill already have this effect,
however these amendments would make clear on the face of the PID Act that a
disclosure of information that tends to show disclosable conduct is not prevented
from being a public interest disclosure only because it also contains personal
work-related conduct. As a consequence, the protections from reprisal, including
unfair dismissal, would apply where a disclosure contains at least one instance of
disclosable conduct.
13. Accordingly, these amendments ensure that the exclusion of 'personal work-related
conduct' is appropriately tailored and reasonable, as it does not extend beyond what
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is necessary to achieve the legitimate purpose of re-focusing the PID Act on integrity
wrongdoing.
Conclusion
14. The proposed amendments are compatible with the applicable human rights and
freedoms.
15. The Bill as amended is compatible with the applicable human rights and freedoms as
provided for in the Explanatory Memorandum to the Bill.
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NOTES ON AMENDMENTS
Amendments 1 and 2--'personal work-related conduct'
1. Amendments 1 and 2 would address concerns raised in the Senate Committee inquiry
into the Bill regarding the proposed exclusion of 'personal work-related conduct'
from disclosable conduct under the PID Act in Part 1 of Schedule 1 of the Bill. In
particular, a number of submissions identified concerns with how the proposed
exclusion would apply to disclosures which contain both personal work-related
conduct and other disclosable conduct.
2. Amendment 1 would insert new subsection 29(2B) after proposed subsection 29(2A)
of the Bill. Proposed subsection 29(2B) would provide that for the avoidance of
doubt, a disclosure of information by a public official that contains disclosable
conduct is not prevented from being a public interest disclosure only because the
disclosure includes other information, and the other information tends to show, or
may tend to show, personal work-related conduct (at item 3 of Part 1 of Schedule 1,
page 4 (after line 25), after subsection 29(2A)).
3. The protections in the PID Act apply in relation to a 'public interest disclosure',
which is defined in section 26 as a disclosure containing information that tends to
show one or more instances of disclosable conduct [see, for example, table item 1
of 26(1)(c)]. Disclosable conduct is then defined in section 29. The addition of
proposed section 29(2B) will provide greater clarity for users by reflecting the content
of the definition of a public interest disclosure next to exclusion of 'personal
work-related conduct' from the definition of 'disclosable conduct' in
subsection 29(2A). Proposed subsection 29(2B) explicitly recognises that a public
interest disclosure may involve information concerning multiple instances or types of
disclosable conduct and that other instances of conduct that are part of a disclosure
would still be considered a public interest disclosure for the purposes of the PID Act.
This is consistent with the Moss Review's views (paragraph 71) that, where a
disclosure includes both an element of personal work-related conduct, as well as an
element of other wrongdoing, the latter element should remain subject to the PID Act.
4. Amendment 2 would insert new subsection 43(4A) after subsection 43(4) of the Bill
to clarify how section 43(4) would apply to an authorised officer where a disclosure
contains multiple instances of conduct, including both disclosable conduct and
personal work-related conduct. Proposed subsection 43(4A) would provide that for
the avoidance of doubt, in considering whether proposed subsection 43(4) applies (see
item 11 of Part 2 of Schedule 1), where a disclosure of information includes
information that tends to show disclosable conduct, there might be a reasonable basis
on which the disclosure could be considered to be an internal disclosure even if the
disclosure includes other information, and the other information tends to show
personal work-related conduct.
5. The proposed note to Amendment 2 would further make clear that a disclosure may
contain multiple instances of conduct, some of which may be considered 'disclosable
conduct' for the purposes of the PID Act, while others may not, including if they
constitute personal work-related conduct. The proposed note would further provide
that paragraph 43(4)(a) does not apply if one or more of the instances of conduct
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disclosed provides a reasonable basis on which the disclosure could be an internal
disclosure under section 26 of the PID Act. This means an authorised officer cannot
make a decision not to allocate a disclosure under paragraph 43(4)(a) where a
disclosure contains information which tends to show (or may tend to show) at least
one instance of disclosable conduct. Rather, the authorised officer must allocate the
disclosure for investigation under the PID Act unless satisfied it would be more
appropriately investigated under another law or power (paragraph 43(4)(b)).
6. Together, these amendments would provide greater clarity that the exclusion of
'personal work-related conduct' from the definition of disclosable conduct by
subsection 29(2A) and section 29A of the Bill would exclude only personal work-
related conduct from the PID Act - consistent with recommendations 5 and 6 of the
Moss Review. These amendments would make clear that subsection 29(2A) and
section 29A would not operate to prevent the allocation or investigation of a
disclosure which contains instances of both disclosable conduct and personal
work-related conduct. Further, protections provided under the PID Act would
continue to apply to public interest disclosures which include one or more instances of
disclosable conduct (and otherwise meet the requirements set out in section 26 of the
PID Act).
Amendment 3--notice requirements on authorised officers
7. Amendment 3 would insert new subparagraph 44A(3)(a)(iii) to the Bill to require an
authorised officer to notify a discloser of any other course of action that might be
available to them where the disclosure is not allocated under paragraph 43(4)(a) - that
is, 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
under the PID Act.
8. This amendment would broadly mirror the existing requirement in paragraph 44(3)(b)
of the PID Act to provide that where an authorised officer decides not to allocate a
disclosure under new paragraph 44(4)(a), the authorised officer must provide notice to
the discloser of, amongst other details, any other courses of action that might be
available to them under another law or power. This amendment would ensure that an
authorised officer is still required to provide information to the discloser about how
else they may take forward their disclosure of wrongdoing, where the authorised
officer has decided that there is no reasonable basis on which it could be considered
an internal disclosure.
9. This amendment would complement the existing requirement in new section
44A(3)(a)(ii) (see item 11, Part 2 of Schedule 1 of the Bill) for authorised officers to
notify a discloser of any action taken or proposed to be taken to refer a disclosure for
investigation under another law or power.
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