Public Interest Disclosure Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (17:56): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted into Hansard without my reading them.

Leave granted.

In accordance with the Independent Commissioner Against Corruption's recommendation following a review of the effectiveness of the Whistleblower Protection Act 1993, the Bill will repeal that Act and replace it with a scheme more in line with contemporary attitudes about disclosure of wrong doing in public administration and in recognition of the existence of the Independent Commissioner Against Corruption and the Office for Public Integrity.

The purpose of the Bill is to facilitate disclosures about public administration information by public officers or former public officers; ensure that public disclosures are properly assessed and where necessary, investigated and actioned, and ensure that a public officer making a disclosure is protected against reprisals.

The Bill also provides protection for disclosures by members of the public about wrongdoing in the private or public sector where the information is disclosed to an appropriate recipient and the information relates to substantial risk to public health or safety and the environment.

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 result of that disclosure.

The Bill creates a duty on the person who receives an appropriate disclosure to take action in relation to the disclosure and take reasonable steps to keep the informant advised of the action or outcome of any investigation. Importantly, the Bill allows disclosure to be made to a Member of Parliament or a journalist where a person has made a disclosure in accordance with the requirements under the Bill and either does not receive notification within 30 days that an assessment has been made or does not receive notification within 120 days, or longer, as specified in a written notice to the disclosure, of the outcome of the assessment. The Bill defines journalist as a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium. News medium is defined as a medium for the dissemination to the public or a section of the public of news and observations on news. The definition is based on the definition in the New South Wales Evidence Act 1995 and consistent with the approach in the Victorian Evidence Act 2008. The definition is intended to be narrow, so that it does not capture such media as tweets and blogs. Flexibility is built into the Bill to allow for development in modes of communication by allowing for regulations to specify classes of person who are deemed to be included in, or excluded from, the definition. This is an appropriate balance between the risk of defining too widely and not recognising development of new forms of communication in public communication.

The Government and the Independent Commissioner Against Corruption consider that the ability to make an appropriate disclosure to a journalist is critical to ensuring that there is an effective, transparent scheme and that the public can be assured that information will be dealt with in a timely and appropriate manner. It is a safeguard against secrecy and complacency in addressing matters of serious or systemic maladministration and misconduct in public administration.

The Bill demonstrates the Government's commitment to accountability and transparency in public administration.

I commend the Bill to Members.

Explanation of Clauses

1—Short title

2—Commencement

These clauses are formal.

3—Objects

This clause sets out objects for the measure.

4—Interpretation

This clause defines certain terms used in the measure. In particular, environmental and health information is defined as information that raises a potential issue of a substantial risk to the environment or to the health or safety of the public generally or a significant section of the public and public administration information means information that raises a potential issue of corruption, misconduct or maladministration in public administration. The umbrella term used in the measure to encompass both of these categories of information is public interest information.

5—Immunity for appropriate disclosure of public interest information

This clause provides an immunity from liability for any person who makes an appropriate disclosure of environmental and health information and for a public officer who makes an appropriate disclosure of public administration information. The section also sets out the requirements for making an 'appropriate disclosure' for each category of information and who such a disclosure may be made to.

6—Disclosure to journalist or member of Parliament

This clause sets out additional ways in which an 'appropriate disclosure' of information may be made.

7—Duty to act in relation to appropriate disclosure

This clause sets out actions to be taken following an appropriate disclosure of public interest information. Such information must be assessed and, following assessment, action must be taken (in accordance with applicable guidelines or as appropriate in the circumstances). The clause also provides for notification to be given to the informant and to the OPI. The clause does not apply to a disclosure to a member of Parliament other than a Minister of the Crown (who is required to refer the disclosure to a relevant authority who is then obliged to deal with the disclosure as if it had been made to them) or to a journalist.

8—Identity of informant to be kept confidential

This clause creates an offence protecting the identity of an informant.

9—Victimisation

A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation. Victimisation is an offence and is also actionable as a tort or as if it were an act of victimisation under the Equal Opportunity Act 1984.

10—False or misleading disclosures

Making a false or misleading disclosure of public interest information is an offence. The clause also makes it clear that such disclosures are not protected under the measure.

11—Preventing or hindering disclosure

This clause creates an offence of preventing or hindering a person making an appropriate disclosure of public interest information.

12—Duties of principal officers

The principal officer of a public sector agency or council must ensure that 1 or more officers or employees of the agency or council are designated as responsible officers under the measure and must ensure that a document setting out relevant procedures for making and dealing with appropriate disclosures of public interest information is prepared and maintained.

13—Duties of responsible officers

A responsible officer of a public sector agency or council for the purposes of this Act must receive and deal with appropriate disclosures of information and provide advice to officers and employees of the agency or council in relation to the administration of this Act.

14—Guidelines

The ICAC may publish guidelines for the purposes of the measure.

15—Non-derogation

The measure is in addition to, and does not derogate from, any privilege, protection or immunity otherwise existing under which information may be disclosed without civil or criminal liability.

16—Regulations

This clause provides a regulation making power.

Schedule 1—Related amendments, repeals and transitional provisions

Part 1—Related Amendments

This Part sets out related amendments to the Local Government Act 1999 and the Public Sector Act 2009.

Part 2—Repeal

This Part repeals the Whistleblowers Protection Act 1993.

Part 3—Transitional provisions

1—Disclosures under repealed Act

The measure (other than clause 7) applies to an appropriate disclosure of public interest information under section 5 of the Whistleblowers Protection Act 1993 as if it were an appropriate disclosure of public interest information under the measure.

2—Designation of responsible officers

The principal officer of a public sector agency or council in existence at the commencement of the measure must ensure that clause 12 is complied with within 3 months after that commencement.

Debate adjourned on motion of Hon. E.S. Bourke.