Whistleblower protection in the Public Service is covered by the Public Interest Disclosure Act 2013 (PID Act). The PID Act came into operation in January 2014 to encourage public officials to disclose suspected wrongdoing in the Commonwealth public sector.
The Commonwealth Ombudsman has oversight of the scheme. They explain it as: “The PID Act offers public officials certain immunities from liability, and protections from reprisal, when they make a PID to the relevant Australian Government agency. The PID Act is designed to provide public officials with assurance that if they make a PID, it will be dealt with appropriately within government, and they will be given support and protection from reprisal in relation to their PID.” (For more information see their website on PID)
Currently the Act is under review. The review is conducted by Mr Philip Moss, the former Integrity Commissioner and head of the Australian Commission for Law Enforcement Integrity. It has accepted submissions up to 2 March 2016. Details of the review including terms of reference can be found here.
Accountability Round Table has made a submission to this review.
The Act includes a reference to the idea of “Public trust”. We argue that what is being recognised in the above references to public office being a public trust is the ancient ethical and common law principle that has been applied for hundreds of years and is still part of our law. Thus a fundamental principle that the PID Act seeks to address are these values and principles in the way it spells out the rights and obligations of those holding public office who become aware of possible misconduct of other holders of public office and seeks to protect, and provide with remedies, those who seek to honour their obligations as public office holders – our public trustees. We also submit that these are the primary values and principles that should be applied when reviewing the operation of the PID Act and considering any reforms proposed
We draw attention to some shortcomings;
- The Code of Conduct mentioned in the Act does not attempt to give guidance in the situation where the APS employees find themselves in the position of witnesses to possible misconduct of other employees.
- There are to two significance gaps in the coverage of the legislation:
- Members of Parliament and their staff
- Intelligence agencies, in particular through the definition of intelligence information. It needs to be recast to better serve the public interest. In examining that issue, the Tshwane principles[i] should also be taken into account.
- The public interest is not being served by blanket omissions or blanket exclusions. The legislation needs to be reviewed and, if necessary, restructured, to ensure that the public interest in open and accountable government will prevail in all areas of government unless the public interest in non-disclosure clearly outweighs it.
For the full submission, see below.
STATUTORY REVIEW OF THE PUBLIC INTEREST DISCLOSURE ACT 2013
Submission of the Accountability Round Table
Guiding Principles and values
In this submission, we wish to focus initially on the principles and values that should underpin government whistle-blower protection schemes and guide any review of their operations.
The Objects of the Public Interest Disclosure Act 2013 (PID Act) are central to the operation of the Act. [i]
The PID Act provides a detailed regulatory framework to guide people through those situations. Its title identifies the focus and intent of the Act – regulating disclosure of information in the public interest.
The PID Act S 6 Objects gives specific objects, the first focussing on promoting the “integrity and accountability of the Commonwealth public sector”. The other three objects seek to encourage and facilitate public interest disclosures, support and protect public officials who make such disclosures and ensure their proper investigation and outcomes. These Objects are necessary, and give guidance, but more guidance would facilitate the operation of, and compliance with, the Act – in particular, adequately drawing attention to the implications of the public trust principle. To do so would be consistent with the provisions of other legislation affecting the operation of the APS, which complement the PID Act.
A starting point is the Public Service Act S10. APS Values.[ii] There is much that assists. We all would want a professional, objective, innovative, efficient, collaborative approach which will result in the best result for the Australian community[iii] and leadership and trustworthiness. We all would want the APS to act with integrity. That is not defined. How should it be? We suggest – “the use of entrusted power to further the values it is intended to advance.”[iv]
The section identifies other values we would all want such as government acting with respect towards all people and their rights and heritage, openness and accountability of ‘government to the community under the law[v] and that it be apolitical and provide the government of the day with frank, honest, timely and best available evidence based advice.
There is then the Public Service Act S 13, the APS Code of Conduct, which seeks to regulate and thereby guide those employed in the APS in applying the S 10 values in different situations. SS (7) identifies and addresses the classic problem of avoiding personal conflicts of interest.
“An APS employee must:
(a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment; and
(b) disclose details of any material personal interest of the employee in connection with the employee’s APS employment;”
The Code of Conduct does not attempt to give guidance in the situation where the APS employees find themselves in the position of witnesses to possible misconduct of other employees, a position which will bring with it unavoidable conflicts of their own interests because of the potential risks to them personally should they decide to address the matter or should they decline to do so. But what values and principles guide and underpin the PID Act Objects?
The title of the Act and s 29 point to the long standing ethical and legal principle – that public office is a public trust. s 29 includes in its list of relevant types of misconduct covered by the Act includes;
“5. “Conduct that is abuse of public trust “
To what is that referring? The answer lies in part in the Commonwealth Public Service Commissioner’s Statement of Values and Code of Conduct in Practice, [vi] where it is said that
– – Employees of the Australian Public Service (APS) occupy a position of trust. They are entrusted by the Government and the community to undertake important work on their behalf. With this trust comes a high level of responsibility which should be matched by the highest standards of ethical behaviour from each APS employee.
This is not an unusual analysis. Compare, for example, the Commonwealth Statement of Ministerial Standards.[vii] The Foreword states
“Ministers and Assistant Ministers are entrusted with the conduct of public business and must act in a manner that is consistent with the highest standards of integrity and propriety.”
The Statement opens with the following
- Principles 1.1. The ethical standards required of Ministers in Australia’s system of government reflect the fact that, as holders of public office, Ministers are entrusted with considerable privilege and wide discretionary power.
1.2. In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility, and the public interest, as required by these Standards.
It goes on to apply those values and principles in particular areas and situations and states
- When taking decisions in or in connection with their official capacity, Ministers must do so in terms of advancing the public interest – that is, based on their best judgment of what will advance the common good of the people of Australia.
Ministerial responsibility provides that they are responsible for public servants acting under their authority and accordingly that public servants must similarly act in terms of advancing the public interest
We submit that what is being recognised in the above references to public office being a public trust is the ancient ethical and common law principle that has been applied for hundreds of years and is still part of our law.
It is a simple principle based on the proposition that where you entrust another with power over you and your affairs, that person is obliged to exercise those powers for your benefit not their own. It can be traced back to Plato. Translated to the operation of democratic governments, our elected and non-elected public officers are entrusted with power, and substantial sums of our money, to make decisions of enormous significance for the present and future for us and following generations. Those powers must be exercised for the benefit of the people in priority to any potential direct or indirect personal benefit to the officeholder or other private interests.
The legal position was described by Sir Gerard Brennan, the former Chief Justice of the High Court, in his speech at the presentation of the ART Commonwealth Parliamentary Integrity Awards for the 43rd Parliament. He said [viii]
“It has long been an established legal principle that a member of Parliament holds “a fiduciary relation towards the public” [ix] and “undertakes and has imposed upon him a public duty and a public trust”[x]. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee.[xi]
Turning to the question of enforcement, he said (p5):
“True it is that the fiduciary duties of political officers are often impossible to enforce judicially; the courts will not invalidate a law of the Parliament for failure to secure the public interest[xii] – the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty. Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry “whatever it takes” is not consistent with the performance of fiduciary duty.”
Examples of the scope of the legal principle include its operation in the area of administrative law. For example, where unfettered statutory discretions are given to ministers, such as planning ministers, the common law requires that the ministers comply with the principle. [xiii] If further examples are needed of the principle as part of the law, there is the common law criminal offence of misconduct in public office[xiv]. It is also recognised in sentencing law, and contract law[xv].
We submit that the PID Act seeks to address these values and principles in the way it spells out the rights and obligations of those holding public office who become aware of possible misconduct of other holders of public office and seeks to protect, and provide with remedies, those who seek to honour their obligations as public office holders – our public trustees.
We also submit that these are the primary values and principles that should be applied when reviewing the operation of the PID Act and considering any reforms proposed. If a precedent is needed, the public office public trust principle was the guiding principle applied by the Royal Commission into “WA Inc.” in its review of the relevant events and its recommendations.[xvi]
We submit that it would significantly assist all public servants, and the administration of the PID Act, if the following was added to the passage quoted above in the Commonwealth Public Service Commissioner’s Statement of Values and Code of Conduct in Practice “ including by putting the public interest ahead of their personal interests and other private interests
Matters for review?
We turn to some specific areas where we submit that the operation of the Act should be reviewed.
We submit that there are to two significance gaps in the coverage of the legislation:
- Members of Parliament and their staff
- Intelligence agencies, in particular through the definition of intelligence information. It needs to be recast to better serve the public interest. In examining that issue, the Tshwane principles[xvii] should also be taken into account.
The public interest is not being served by blanket omissions or blanket exclusions. The legislation needs to be reviewed and, if necessary, restructured, to ensure that the public interest in open and accountable government will prevail in all areas of government unless the public interest in non-disclosure clearly outweighs it. Where procedures are required to resolve such questions, we submit that the public interest requires that they are not only independent but also appear to be independent.
We also submit that the powers and resourcing be reviewed to assess what further support may be needed to enable the Act to best operate in the public interest.
7 March 2016
Hon. Tim Smith Q.C
Chair, Accountability Round Table
[i] S.6 Objects; The objects of this Act are:
(a) to promote the integrity and accountability of the Commonwealth public sector; and
(b) to encourage and facilitate the making of public interest disclosures by public officials; and
(c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and
(d) to ensure that disclosures by public officials are properly investigated and dealt with.
[ii] 10 APS Values
Committed to service (1) The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government.
Ethical (2) The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.
Respectful (3) The APS respects all people, including their rights and their heritage.
Accountable (4) The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
Impartial (5) The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
[iii] As to what would also “achieve the best result for the Government”, that is unclear unless it is what would be the best result for the Australian Community. In light of other provisions, it presumably does not refer to what would be the best result from the, political point of view for the Government ?
[v] What is meant in the section by “within the framework of ministerial responsibility” is unclear
[ix] (quoting Higgins, J. in R v Boston (1923)33 CLR386, 412)
[xi] citing Rich,J in Horne v Barber(1920)27CLR494,501
[xii] citing United Steamship Co of Australia Pty Ltd v King (1988) 82 CLR 43 at 48; In para 16 of the judgement it is stated:
“16. These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words “for the peace, order and good government” are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v. Road Carriers (1982) 1 NZLR 374, at p 390; Fraser v. State Services Commission (1984) 1 NZLR 116, at p 121; Taylor v. New Zealand Poultry Board (1984) 1 NZLR 394, at p 398), a view which Lord Reid firmly rejected in Pickin v. British Railways Board (1974) AC 765, at p 782, is another question which we need not explore.”
[xiii] Smith T., Integrity in politics? Public office as a public trust? Is there hope? –
[xiv]  Lusty, D. “Revival of the Common Law Offence of Misconduct in Public Office” (2014) 38 Criminal Law Journal 337. https://www.accountabilityrt.org/?s=Lusty And see generally Smith T., Integrity in politics? Public office as a public trust? Is there hope? –https://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf ( note p11 and discussion of Magill v Porter ; also Smith T, Government Secrecy and Urban Planning – The Forgotten Trust and Reform, http://www.accountabilityrt.org/government-secrecy-and-urban-planning-the-forgotten-trust-and-reform/ .
[xv] Endnote xiii, ibid