Public Interest Disclosure Bill

Second Reading

Debate resumed.

Mr PEDERICK (Hammond) (15:54): I rise to speak to the Public Interest Disclosure Bill 2018, which replaces the Whistleblowers Protection Act 1993. This bill fulfils another Marshall Liberal government election commitment to strengthen protections for whistleblowers. We are doing this because the purpose of the bill is to encourage the disclosure of information in the public interest about significant risks to public health, safety or the environment, or about maladministration and misconduct in public administration.

This is a scheme that is more in line with contemporary attitudes about the need for disclosure of wrongdoing in public administration and one which recognises the important statutory functions of ICAC and the Office for Public Integrity. This bill is identical to the 2016 bill put up by the former Labor government but with one key difference: we have made provision for disclosures to be made to the media.

This bill is an integral part of our transparency and accountability agenda across government, and this includes other bills which will allow for public hearings into suspected maladministration and corruption and protecting journalists from having to reveal confidential sources in the interest of holding governments to account. This bill will repeal the Whistleblowers Protection Act and instead replace it with an act based on a review of the same that was undertaken by the Independent Commissioner Against Corruption.

This legislation provides to people to whom a disclosure can be made that disclosures will be properly assessed and investigated and protects public officers from reprisals by recognising the offence of victimisation and creating remedies for this. For a disclosure to be protected, the person must believe on reasonable grounds that the information is true or believe on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure. A person who makes an appropriate disclosure is not subject to any liability as a consequence of that disclosure.

The bill also imposes a duty on the person who receives an appropriate disclosure to take action in respect of the disclosure and to take reasonable steps to keep the informant advised of any action or outcomes resulting from an investigation. Importantly, this bill allows disclosure to be made to a member of parliament, except a minister or a journalist, where a person has made a disclosure in accordance with the bill's requirements and either does not receive notification within 30 days that an assessment has been made or does not receive notification after 120 days of the outcome of the assessment. The commissioner will be responsible for updating ICAC resources and its website in addition to his existing role to educate the Public Service about their reporting obligations in respect of misconduct and maladministration.

I think this type of transparent legislation is absolutely important, when what we have seen with the previous Labor government is public servants too frightened to speak out, frightened for their jobs, frightened to lose the income that supports their families if they speak out. People are told from a high level that if they say anything against the department, anything against some of the protocols or practices, which may be maladministration or wrongdoing, that it is their job. So they stay silent because they are threatened to the nth degree that they cannot open up and reveal any of this information. In the interests of transparency and accountability, the Marshall Liberal government are presenting this bill to the house today.

Mr CREGAN (Kavel) (15:59): I rise to support the introduction of the Public Interest Disclosure Bill. It forms part of our substantial legislative agenda to support open and public debate in South Australia. Our state has been referred to as 'the suppression state'. Secrecy may, in certain appropriate circumstances, be necessary, but it is never desirable. Democracy is best protected by openness. The machinery of the bill provides immunities from liability for any person who makes an appropriate disclosure of certain regulated information, including environmental and health information and public administration information.

The bill also sets out the requirements for making an appropriate disclosure for each category of information and, of course, goes on to describe how that disclosure may be made in order to enjoy the substantial protections and immunities contemplated by the bill. The legislation we now bring to the house also protects those making an appropriate disclosure against victimisation and takes the step of making a false or misleading disclosure an offence.

I understand that the bill has been prepared in view of recommendations prepared by the Independent Commissioner Against Corruption following a review of the effectiveness of the Whistleblowers Protection Act 1993. This bill will repeal that act and, as the Attorney will shortly explain to the house, replace it with a scheme more in line with contemporary attitudes about disclosure and wrongdoing in public administration. As the Attorney will outline, it also recognises the existence of the Independent Commissioner Against Corruption and the Office for Public Integrity.

I have listened carefully to the remarks provided to the house by the member for Hammond, and I appreciate very much his contribution to the debate. I have closely noted the commissioner's annual report from 2015. The annual report records that, in a survey of 7,000 public servants, one in four was concerned or reluctant to report corruption, misconduct or maladministration. The most common concern noted was that of repercussions in respect of their employment. These matters are of serious concern to the government. They need to be addressed. This legislation is an appropriate vehicle to deal with those matters and also, as I remarked earlier, to introduce a scheme that better complements contemporary community expectations.

It will see out a culture of silence and ensure that there is an appropriate scheme in place to examine information that has come to light, most particularly through the courage of public servants who have formed the view that it is necessary to enjoy the protections of this act and to share regulated information, where appropriate, with others. I understand, too, that legislation substantially in the form that we now bring to the house was the subject of a substantial deadlock conference in 2017, and so it is right and appropriate that this new government introduce the legislation now with the numbers. I commend it to the house.

Dr HARVEY (Newland) (16:03): I am very pleased to rise today to support the Public Interest Disclosure Bill 2018. I am very pleased to support this bill, as it is a key plank of the Marshall Liberal government's reform agenda, which is for greater transparency and accountability in government. In a democracy such as ours, transparency and accountability are essential for good government—government that is focused on the interests of the people we were elected to serve and, importantly, maintains public trust and confidence in our institutions.

While on the campaign trail, trust in politics and politicians was a constant source of concern for many constituents, often around the lack of transparency and accountability under the previous administration, in particular as a result of scandals that had engulfed the previous government, including Oakden, Gillman, the purchase of the diesel-guzzling generators and failure after failure in the area of child protection, all under a cloud of darkness due to the previous administration's aversion to transparency and accountability.

I am pleased to note and welcome the support of those opposite on this bill. I always welcome support from the other side. It is a shame, though, that those opposite would begin to support transparency and accountability in government once no longer in government themselves. The Marshall Liberal government are committed to transparency and accountability. We went to the election with a number of policies to address this issue, and today we are specifically dealing with the issue of protection for whistleblowers. The Whistleblowers Protection Act has been in operation now for some 20 years; however, since its inception there has been little recourse to its protection.

In March 2013, the then attorney-general requested that the Independent Commissioner Against Corruption review the legislation and, after extensive consultation, the commissioner prepared a report for the parliament in 2014. The commissioner made 30 recommendations supporting a rewrite of the law. In the commissioner's annual report of 2015, a survey of 7,000 public servants revealed that one in four was reluctant to report corruption, misconduct or maladministration, with the most common concerns being personal repercussions and a general fear about the security of their job.

Meanwhile, the State Ombudsman conducted a review of the freedom of information laws, with a report on the same tabled in parliament in June 2014. This report highlighted the need for protection of FOI officers against ministerial interference. Notably, both reports recommending substantial reform appeared after the 2014 state election. In the absence of any reform, the then Liberal opposition prepared a bill to provide for offences for victimisation and the right to public protection.

The then government, in an attempt to save face and after nearly two years of refusing to provide any reform to whistleblower laws, introduced a bill, which essentially cherrypicked parts of the ICAC report without providing any true substantive whistleblower protection reform. The Marshall Liberal government has fiercely maintained the need for whistleblowers to be protected, especially when disclosing matters of public importance to journalists, including maladministration and corruption, as it is important for good government and for the people of South Australia.

What this bill does is repeal the Whistleblowers Protection Act and instead replace it with an act based on the review by the Independent Commissioner Against Corruption. The legislation provides to whom a disclosure can be made, that disclosures will be properly assessed and investigated and protects public officers from reprisals by recognising the offence of victimisation and creating remedies for this. For a disclosure to be protected, the person must believe on reasonable grounds that the information is true, or believe on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure.

A person who makes an appropriate disclosure is not subject to any liability as a consequence of that disclosure. The bill also imposes a duty on the person who receives an appropriate disclosure to take action in respect of the disclosure and to take reasonable steps to keep the informant advised of any action or outcomes resulting from an investigation. Importantly, the bill allows disclosure to be made to a member of the parliament (excluding ministers) or a journalist, where a person had made a disclosure in accordance with the bill's requirements and either does not receive notification within 30 days that an assessment has been made or does not receive notification after 120 days of the outcome of the assessment.

This bill will give public servants the confidence to disclose information that is in the public interest about significant risks to public health, safety or the environment, or about maladministration and misconduct in public administration. A key difference between what we are proposing today and what had previously been proposed by the former government is that disclosures under the bill before us today will be able to be made to journalists. On this side of the house, we are committed to delivering on our transparency and accountability agenda across government, and I am pleased to commend this bill to the house.

Mr MULLIGHAN (Lee) (16:09): Today, I rise to advise that the opposition will not oppose the changes being implemented through the Public Interest Disclosure Bill 2018. This bill repeals the Whistleblowers Protection Act 1993 and establishes a new protection scheme for whistleblowers. The scheme regulates the disclosure of environmental and health information, and public administration information, in distinct ways. The former information is required to relate to a substantial risk to the environment or public health, whereas the latter is only required to raise a potential issue of corruption, misconduct or maladministration.

The ACTING SPEAKER (Mr Pederick): Excuse me, member for Lee, are you the lead speaker in the debate?

Mr MULLIGHAN: Yes, lead and only. The Attorney-General's Department has provided advice that this bill is identical to legislation the former Labor government introduced through the former attorney-general (member for Enfield) with the exception of the addition of clause 6, which allows a disclosure to be made to a journalist or to a member of parliament but only after appropriate disclosure has been made.

For the purposes of this bill, a member of the public or a person is protected by this legislation only in relation to disclosures relating to public health and environmental information but not at all in relation to public administration information. I think there is some benefit in considering whether a member of the public, who may be aware of public administration information that raises a potential issue of corruption, misconduct or maladministration, should be able to make a disclosure and be covered by this scheme.

The proposed scheme also does not provide protection to people or public officers who disclose information to the media in the first instance. Potential informants will only be protected if they have already disclosed the information to a relevant authority. Media can be a driver of change and, as such, it is important that any public officer or member of the public is protected, regardless of whether they approach the media in the first instance. Again, I reiterate that the opposition will not oppose the changes being implemented through the Public Interest Disclosure Bill 2018 but reserve our right to continue to consult and consider the application and outcomes from this bill.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:12): I am delighted to hear the member for Lee indicate the opposition's support for the bill. In fairness to the history of this matter, I should indicate that the proposed clause 6 is different in that it is disclosure to a journalist. In the previous debate on the 2016 bill, under the previous government, the government of the day—the former attorney-general—had proposed an amendment to the original model, namely, to allow for the subsequent disclosure to a member of parliament after disclosing and reporting it to the relevant authority. So there was, I suppose, an olive branch, perhaps with no leaves on it but some attempt by the former attorney to appease those who were concerned about the limitation on the government's bill of the day.

It is fair to say that, from the government's point of view today, we are committed of course to continuing to protect public servants to ensure that they are legitimately able to disclose matters. Some of the aspects of this bill have been covered under the former bill. What is even more pleasing to me is that there has been careful consideration given to where a concerned public servant is to go for the purposes of lodging the complaint. There has been quite a bit of work done to carefully identify as much as possible the clarity of where someone goes, who has information, and to try to minimise the confusion with that.

It is fair to say that if people genuinely believe a crime has been committed, then as a public servant, obviously, the police are the first people to go to. But there are a whole lot of other categories of people who are responsible for public integrity—the Auditor-General, the Ombudsman, the Office for Public Integrity, the Health and Community Services Complaints Commissioner—and, as much as possible, the bill sets out a helpful list, we hope, to ensure that that best reflects the guide for where they go.

I say that because this type of legislation comes into tension with what we would otherwise consider an important relationship between employer and employee and the significance of ensuring that employees, whether they are of government or anyone else, are not just protected but also that they are not in a position where they think they can carte blanche go out and make a complaint against their employer in any unbridled way.

This legislation, on the advice of Mr Lander and his very significant report, comes to the parliament to replace the model that has been effective since I think 1992. It needed to be upgraded, and it is being upgraded, and it is now going to follow through and have a chance of resolution. Members in another place who have previously supported the now government's position on the previous legislation I am sure will also welcome this bill, and we look forward to the favourable consideration in another place. This is a day for the protection and support of our public sector and I am very proud that we are progressing it.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.