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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2016-09-27 Daily Xml
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Public Interest Disclosure Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 July 2016.)

Mr TARZIA (Hartley) (12:29): I rise today to speak to the Public Interest Disclosure Bill 2016. I also note that I will not be the lead speaker. I anticipate that that would be the member for Bragg.

Obviously, this is a bill that aims to encourage and facilitate the disclosure of much material in the public interest by making sure that there are certain procedures in place not only for making but for also dealing with these kinds of disclosures, and also by providing protection for people who make such disclosures. It also makes related amendments to several acts, such as the Local Government Act 1999 and the Public Sector Act 2009, and repeals the Whistleblowers Protection Act 1993.

This is an area of the law that the opposition has certainly been vocal about for an extended period of time. It is a very important area. A short time ago, on this side of the chamber we sought to have this kind of legislation implemented. We have wanted for some time to look at the offence of victimisation and also at the disclosure rules that concern journalists as well. We were advised recently that it was likely that the government would progress its own bill in this area, and here we are with the Public Interest Disclosure Bill 2016, which has been introduced by the Attorney.

From what we can see, the bill the Attorney has put forward incorporates several recommendations of Commissioner Lander's 2014 report. However, it does not appear to include, as we would have liked, the right to disclose a matter in the public interest to a journalist if there has been failure to investigate it within a certain period of time. So, I anticipate that, whilst the bill may be supported, we may look to move an amendment down the track, but otherwise I support the bill.

Ms REDMOND (Heysen) (12:32): I rise to make a couple of brief comments in relation to the Public Interest Disclosure Bill, which is one of those bills that gets complicated by the fact that it does something that I really do not like; that is, it uses, for definition purposes within the bill, definitions that are simply related to another act of parliament.

For instance, when you go to clause 6 of the bill and you are talking about disclosures made to members of parliament—and of course that would be something of great interest to everyone in this place—there is a discussion about what is appropriate disclosure, and so on, and what is a public officer. If you then go to the definitions clause, public officer is simply defined as 'having the same meaning as in the Independent Commissioner Against Corruption Act 2012'.

It really annoys me in drafting—with no offence to the parliamentary counsel who were involved, as I am sure they are doing it because they are told to do it—that when one is trying to read an act you then have to consult another piece of legislation in order to find out what is meant by the thing being said. Of course, when you go to the Independent Commissioner Against Corruption Act, public officer is then defined as everyone listed in schedule 1, and you go around in a circle because, in fact, schedule 1 includes members of the Legislative Council and members of the House of Assembly.

However, apart from that drafting annoyance I have with this bill, the main point I want to discuss very briefly is the idea of appropriate disclosure and the nature of what is in the public interest. In my experience, in the just over 3½ years I spent as leader I had considerable experience in many dealings with the media on an almost daily basis for that entire time. I think the media these days too often confuse what is of interest to the public with what is in the public interest. There is a level of voyeurism that has become entrenched in the media.

The day I stood down, I was up in Port Pirie. By the time I got back to my home, my house was staked out, and it remained staked out for the next 48 hours. To say that that annoyed me would be an understatement, especially since my very brief statement when I resigned indicated in the last line that I would be making no further statement, but my house remained staked out for the next 48 hours. I have a great concern about the intentions of the media to use the concepts of what they would define as public interest to protect them and allow them to do things like staking out the houses of people who have done nothing wrong and use that concept of public interest, as they define it, to interfere with people's reasonable right to privacy.

You would be aware that I currently have before this house a private member's bill in relation to drones. My concern with drones is only to control the bit of air space around people's private homes so that it will be unlawful for media or anyone else to fly a drone up to the window of your house with a camera attached and film into the house. I remember on the day the federal election was going to be called earlier this year the media were camped outside the Prime Minister's house and had their cameras trained on the kitchen window and, when he went to the kitchen and pulled up the blind, the media cameras were there.

It is just nonsensical. They would call it news, but in fact I would submit that there is no public interest in that. I think we need to be very careful about the way we contemplate the provisions of this bill but, more particularly, I think we need to be very careful about the way the interpretation of that particular concept is dealt with henceforth. Presumably, it will be maybe by regulation, maybe by interpretation in courts, but I just want to emphasise that there needs to be a very clear distinction made between what is in the public interest and what may be of interest to the public.

There are many things which people might find interesting. I do not happen to read them very often, but occasionally in doctors' surgeries, dentists' surgeries, and so on, I will read a magazine that seems to be full of nothing but gossip that is supposedly being published in the public interest. I would submit that in that case most of the content of those magazines is nothing but stuff that some people might find interesting, but does not, I think, meet the test of actually being in the public interest.

I think that there should be a test, and perhaps between the houses we can think about putting a test into this legislation to indicate that what is of interest to members of the public is not necessarily in the public interest and that there must be some overriding benefit to the public at large in allowing the accessibility and subsequent publication of information, particularly on the part of the media. That is really the only thing I wanted to cover in relation to this particular piece of legislation. I do not object to the rest of it.

I am always most concerned to ensure, as I was with the Independent Commissioner Against Corruption Act, that the ability of members of parliament to listen to anything that people wish to tell us without them feeling that they are in some way jeopardising themselves is maintained intact. The privilege of this parliament is something I think is particularly important. I have already dealt with that in relation to the ICAC Act and, although I do not like the cumbersome way it is dealt with, the fact that the definition is repeated in this act I suspect gives me sufficient comfort in that regard.

However, I do have this issue about wanting to make sure that we distinguish very clearly between something which is in the public interest and something which may be of interest to the public. The only exceptions that should be able to be given the benefit of the Public Interest Disclosure Bill should be the things that are in the public interest and not simply things that are or may be of interest to the public.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:40): I rise to speak on the Public Interest Disclosure Bill 2016, introduced by the government subsequent to the opposition giving notice of its Whistleblowers Protection (Miscellaneous) Amendment Bill 2016, and I indicate that we will be supporting the bill. As I have previously indicated, we will move an amendment consistent with the provisions of the protection to journalists in the disclosure of material in the public interest in circumstances I will detail shortly—that being an amendment consistent with the recommendations of the report of Mr Lander QC, the ICAC commissioner, and with two previous bills which we have presented to the parliament and which the government has rejected.

Secondly, I indicate that, with the passage of this bill through the parliament, in the circumstances I will be withdrawing from further consideration our whistleblowers protection bill. Let me outline to members the history of this matter but, before I do, I thank the member for Heysen for raising a perfectly valid point about the difference between something that is in the public interest and something the public are interested in.

I do not imagine that anyone would compare the Attorney-General with Brad Pitt or his activities, but quite clearly the current state of the demise of and the distress involved in the marriage of Brad Pitt and Angelina Jolie is something which the public have an almost insatiable appetite for information about. I think it is a bit sad in a circumstance where people are in public life that they have to live under such scrutiny in these situations, but I suppose that if their whole life is built around public exposure it is unsurprising that when things go tragically wrong they are in the public light and that the public wishes to race towards every snippet of information, however accurate or however repetitive it might be.

On the other hand, what is in the public interest in respect of matters of maladministration or waste in the public sector, or corrupt or illegal conduct generally, may be less salacious in detail or not have anywhere near the same attention of the public, but it is absolutely critical and fundamental that where circumstances of malpractice or illegal conduct occur they be exposed and dealt with. The Whistleblowers Protection Act 1993 currently provides for and facilitates the disclosure in the public interest of maladministration and waste in the public sector, and of corruption and illegal conduct generally, that would otherwise be undermined.

We have a structure of legislation at present which, although not perhaps as interesting to the public, is absolutely critical for the protection of the public. The current act provides this protective membrane for the public by providing a means by which disclosures may be made by, frequently, public servants or by providing appropriate protections for those who make such disclosures.

In an effort to ensure that this conduct is rooted out, exposed and dealt with, we need to make sure that within the inner sanctum—as is frequently the case with maladministration or corruption; difficult to prove otherwise—we have an insider spill the circumstances that lead to it. So, we have the Whistleblowers Protection Act to make sure that when they do—and it is in the public interest, so there are certain thresholds that they have to comply with and it is to the appropriate authority—they will be protected. That is the theory.

It is legislation that has been around for more than 20 years, but has it worked? It appears, however, that the application of it, the implementation, or those seeking recourse to its protection, has been quite rare. One might say, well that is because there has not been any problem with this type of conduct in the public sector. Others would say that it is because people are too scared to speak up, even with the umbrella of protection under the act. In March 2013, the Attorney-General requested Commissioner Lander to review the legislation. After extensive consultation, he prepared a report and tabled it in this parliament on 30 October 2014.

There were 30 recommendations that Mr Lander made supporting a rewrite of the law in this area. The first thing to note is that we are two years down the track before the government has acted to implement any of these recommendations. That is concerning in itself. I had wondered whether the Attorney had thought, 'Well, we might not win the 2014 election. It will be safe enough for me to give these terms of reference, or request the new commissioner—relatively newly appointed—to conduct some inquiries on a number of things. This is one of them. If it needs a review after 20 years, we probably won't be in office, so what's the harm?'

I have to say that when that crossed my mind, the fact that the government then took two years to actually do anything about implementing these reforms, having won the election, I think I was probably on the money. Perhaps the most disturbing thing that I read from Mr Lander's annual report of 2015 was that he detailed a survey of 7,000 public servants, revealing that one in four was reluctant to report corruption, misconduct or maladministration, the most common concern being the personal repercussions for their jobs.

Meanwhile, the State Ombudsman of the day conducted a review of the freedom of information laws, and his report was tabled in parliament in June 2014. Both of these reports, in late 2014, revealed that there was a need for very significant reform, and in the Ombudsman's report, highlighted particularly was the need for protection of freedom of information officers against ministerial interference.

We have a culture of concealment, a fear of the public sector to speak up, and a need by two senior integrity officers, that is, the ICAC Commissioner and the Ombudsman, to say that we need to have legislative statutory protection for people who work in public office. I think that is shameful enough, that we would actually have a situation where two senior people would say that this is what is needed, but that there is also a publication of a report in 2015 that in detail exposes the fear of these public servants to speak up. This is a very sad situation.

Contemporaneous with this whole process is the tawdry story of the investigation surrounding the Gillman land sale by the Auditor-General, his recommendations that there be major tightening on unsolicited bids and proposals put to government, and then the staggering revelations in the ICAC commissioner's report when he conducted an inquiry under the Ombudsman Act powers in respect of the Gillman deal. He found two senior public officers—that is, the head of Renewal SA and a senior person in Renewal SA—to have been guilty of maladministration, and he had some very unsavoury things to say about the then minister for housing and urban development, who is now our Treasurer, God forbid.

In any event, all this is going on and still the government does nothing. Having recommended that there be very substantial reform, the government did nothing. The only thing that the government was motivated to action after the election in 2014, after the disgraceful revelations in respect of the Shannon McCoole case, was to call for a royal commission into the child protection systems that operated in South Australia. Everything else appeared to be completely ignored. The report that was subsequently brought in on 5 August 2016 by Commissioner Nyland, and kept concealed for three days and ultimately published and made available to the public on 8 August, is another exposé of unbelievably poor conduct of the management in this case of the child protection agencies in our state.

Let me go now to this bill in particular. Of Mr Lander's recommendations, there are two areas of reform that need urgent attention; one is the protection against victimisation when someone speaks up, including having a responsible person in each department like we have, similarly, in respect of having independent freedom of information officers, and the need to impose penalties via an offence for victimisation. The second area which needs urgent attention, and which the government has absolutely ignored and continues to ignore, is the right to disclose a matter in the public interest to an MP who is not a minister and to the media if there has been a failure to investigate within a reasonable time.

As I said earlier, the opposition has consistently argued and repeatedly presented bills for approval of this parliament for the right of a person who complains about conduct that is inappropriate in public life to be able to have the protection to go to persons other than the relevant authorities. It is quite reasonable. Let's just have this on the record: it is quite reasonable for a public servant, if they feel that there has been some inappropriate behaviour or management, or lack thereof, within a department, to go to their superior; if there is no action, to go to the chief executive officer; and if there is no action again, to go even to the minister.

They do not need to rush off to the media straightaway. They need to be able to safely expose misconduct and let the relevant authorities up the line refer it to the police, to the Director of Public Prosecutions, to the Office for Public Integrity, or to such other agency which needs to look in sometimes, to investigate these matters further. That is pretty basic. The tragedy is that, firstly, as exposed by Mr Lander, one in four are too scared to even go and report it up the line, let alone to another MP—any of us—to work to protect the interests of that person, or let alone their desire to ultimately go off to the media because nobody else is listening. All of these people have a responsibility to act, but clearly they do not.

Read Margaret Nyland's report in the child protection area. If ever there was a cacophony of disaster, one can read that and see how there is not just a total ineptitude, but there is a cover up and concealment of various people's conduct in the department which allow these disgusting things to perpetuate. They are not all allowing somebody to continue child abuse. There are things that have occurred that have been exposed in that report about the chief executive officer and other senior members in the department who have allowed for the doctoring of draft reports to present to the royal commission under subpoena and have then hidden behind the protection of legal professional privilege.

If anybody has not read that report, I urge them to do so. It is absolutely illuminating. It is disgraceful what is exposed, but it is illuminating as to the level to which people will go, literally, and, as they colloquially say, 'cover their own arse'. It is very important, I think, for everyone in this house to read that report carefully, as chilling as the content is. If there is a reasonable opportunity for a member of the Public Service to freely go to their superior or to the minister, about which they have a reasonable expectation that it will be acted on, they may find that their concerns were without any substance and that, in fact, there was a perfectly plausible explanation. However, they should not feel intimidated into silence for fear of lack of promotion or, indeed, the fear that they would not be able to keep their jobs.

Although the government has dragged the chain in presenting the reform in this bill that should have been here two years ago, we will support them in it. However, I make the point that, as recently as the Nyland royal commission, which is a timely and very recent exposé of what is clearly still going on, causing people to be silenced when they should have a chance and the protection to speak up.

When they are prepared and have the courage to speak up and nobody listens, then, at the very least, those people ought to be able to go to their member of parliament to raise it in this house, or to raise it again with the government, whatever might be appropriate in the circumstances, and after a certain period of time, as Mr Lander supports, they have a right to go to the press; they have a right to go to the people of South Australia and say, 'Nobody is listening.'

The publication of material that might be within the remit of what is being complained of, still has to, I suppose, reach above the threshold of some level of decency and accuracy to avoid a defamation and action by the publisher—something that may befall a journalist that runs the story. There are certain screenings and measures to protect and shield against some rampant disclosure of material in some irresponsible way.

However, when the authorities do not listen, when the authorised bodies fail to act, when the minister sits with closed ears and the government as a whole has its hands over its eyes, then the people of South Australia—and in particular those within the public sector who are privy to information which would expose the public maladministration or waste or, indeed, criminal conduct—ought to have the protection to be able to make sure that they do it.

The bill, as progressed, will reform this whistleblower's protection. It has raised and accommodated a number of the recommendations by the ICAC commissioner, Mr Lander. I thank Mr Lander for his report and work. It has just about got cobwebs on it, but we still need to recognise that it was an incredible body of work. I thank him also for boldly undertaking a very comprehensive survey of public servants. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.

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