HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2016-09-27 Daily Xml
Contents
Pdf Xml

Bills

Public Interest Disclosure Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:46): I will not go any further into the detail of the proposed amendment by the opposition. Can I say today that, having just gone through question time and trying to elicit some little morsel of information about the progress of how the government are managing the Nyland royal commission report, this is exactly the example of a circumstance where the government does not tell you what is going on. Couple that with Mr Lander's report, which tells you that one in four are not prepared to speak up because they are too scared about their jobs or lack of promotion, we end up with a culture of concealment, which is just unacceptable.

This is why it is so critical that we have the victimisation procedures and that we have a process that is more robust and implemented to ensure that whistleblowers, as we have historically known them—the people who are the canaries in the coalmine who are alerting the authorities and if necessary, publicly, of information that tells South Australians that there is some stink in Denmark—free to come forward to blow the whistle on illegal or incompetent conduct, and that is why we are going to support this bill.

We are going to move an amendment (and I have given notice of that) to ensure that when the government fails—as it has repeatedly done when it has been alerted, to act and to protect—we have a process whereby that whistleblower, that public servant, that decent person who wants to expose that conduct or failing, can go to the parliament and to the public via the media. It should be a place of last resort. Under our amendment, it will be a place of last resort. It is necessary to make sure that the government, which is not being transparent, which is not being open and accountable, is able to be brought to account by the people of South Australia.

The Hon. P. CAICA (Colton) (15:48): I rise to support the Public Interest Disclosure Bill. Of course, this bill does several things: it gives effect to the recommendations in the report of the review of the Whistleblowers Protection Act 1983 undertaken by the ICAC, and it ensures the ICAC Act and the whistleblowers legislation work in a complementary fashion to encourage public interest disclosures. The bill says that without these amendments the ICAC Act and the current whistleblowers legislation have different but overlapping definitions for corruption and maladministration and impose different reporting obligations on those in the public administration. I believe, and the government believes, this causes confusion.

I also note the argument that it is not necessary to include journalists because people can, under the bill, report to an MP, for example, and there are examples of irresponsible journalism and it is difficult to define a journalist. I note the amendments do not necessarily define a journalist. It is this particular area I want to focus my contribution on; that is, that in some quarters the bill has been characterised as an attack on the freedom of the press and the public's right to know. I believe, and the government believes, that this characterisation is completely wrong, and as I said, this is the area I particularly want to focus on.

The press, and the media more broadly, operate in an environment which is rapidly changing. Media practitioners believe they have a role as watchdogs on society, a role that has developed over centuries. However, particularly in recent times, and expedited by the competitive dynamics of the internet, the media has lost any moral high ground it might have had, straying into the territory of sensationalism, misrepresentation and publication without adequate safeguards to check accuracy.

The public knows this. It is reflected in surveys, in the decline of the public paying for printed copies of newspapers and in television channels losing market share to alternative information platforms. A survey by Ipsos for independent body the Governance Institute of Australia, published on 20 July this year, found that 55 per cent of 1,000 people surveyed thought the media was 'very or somewhat unethical' compared to 21 per cent saying that the media was 'somewhat or very ethical'—

Ms Chapman interjecting:

The Hon. P. CAICA: Having said that, I know people who work in the media who are ethical.

Ms Chapman interjecting:

The Hon. P. CAICA: Yes, but there are also many who are subject to the whims of the editors and subeditors of those particular publications. I do not think it goes to say that if you read it in the paper it must be true. So, commentary on the role of the media, and whether there should be special protection for journalists, is dominated by those with commercial interests, most notably the media itself or those who seek to make political capital by pretending to be a friend of the media.

However, there have been a number of independent assessments in recent times, and I just want to touch on a couple of those. These assessments include the inquiry by the Rt Hon. Justice Brian Leveson into the culture, practices and ethics of the press, presented to the Parliament of the United Kingdom in November 2012. While this was an inquiry that focused on the United Kingdom, there are many aspects to that investigation and its findings which apply to Australia or indeed universally. Justice Leveson wrote:

A free press is able to perform valuable functions which individual free speech cannot. It is because of the position of the press as an institution of power that it is able to stand up to and speak truth to power. The professional skills and resources at its disposal enable the press as an institution to carry out ground-breaking investigations in the public interest. It is these considerations and functions which have resulted in the press as an institution being afforded certain privileges going beyond those protected by freedom of speech.

Justice Leveson cites as an example of the special arrangements for the press the defence of qualified privilege to reporting matters that might otherwise be defamatory. He goes on:

Suffice to say, these privileges afforded to the press are important precisely because they enable the press to serve the public interest in carrying out investigative journalism and disseminating information: they are not afforded for any other reason.

In Australia, journalists also operate under laws which give them the protection of qualified privilege. This is a privilege valued by society. However, Justice Leveson points out that the media does not operate in a vacuum. Other interests have legitimate and sometimes more important factors that need to be taken into account. He says:

The public interest in a free press is fundamental. But—it cannot be viewed in isolation. As has been demonstrated, it is, itself, an aspect of wider public interests such as the public interest in democracy, for example, in public life and in the rule of law. There are other public interests also of which press freedom is not a major aspect, and with which it may sometimes be in tension…The 'public interest' is therefore not a monolithic concept. Nor is it the particular property of the press or any other organisation or sector.

He then quotes from the testimony of witness Professor Christopher Megone, Professor of Inter Disciplinary Applied Ethics at the University of Leeds:

…there are more components of the public interest than those that are served by a free press, so that the press may need to control its activity to respect those wider factors…

Sometimes it seems that the press's confidence that its activities are serving the public interest makes it insensitive to the complexity of that notion.

The Leveson Inquiry was called by the then prime minister, David Cameron, because there were widespread concerns about the poor standards that were being exercised by the press, including criminal behaviour, and community demands for more controls. Justice Leveson says:

…the press is an institution of considerable power and the exercise of power in a democratic context brings with it proportionate responsibility for the consequences of choices to do so. Moreover, where power is exercised purportedly in the public interest, then there is a particularly acute responsibility to account for the exercise of that power to the public in whose name it is exercised.

This inquiry considered the culture and practices where the press had clearly failed to honour its responsibility, and there are many, many examples that were examined which have become, for want of a better term, notorious, including:

the Dowlers, with the interception of messages and their deletion from the mobile phone of the murder victim, Milly Dowler. The deletion cruelly raised false hopes for her parents, Bob and Sally, that their missing daughter was still alive and listening to her phone messages;

Kate and Gerry McCann, with libellous and highly inaccurate articles in a number of newspapers following the disappearance of their daughter, Madeleine, in Portugal;

Christopher Jefferies, smeared as a probable murderer of Joanna Yeates in a number of stories until the perpetrator, who had fingered Mr Jefferies, was charged and convicted; and it goes on and on, including

the then chancellor of the exchequer, Gordon Brown, and the publication of his son's private medical records.

I could cite other examples that the Leveson Inquiry considered when making its recommendations. Of course, as I mentioned earlier, the Leveson Inquiry related to events in the United Kingdom, and his recommendations were specific to the operation of the press in that jurisdiction, but the question needs to be asked: has the lesson been learnt in the United Kingdom and, by extension, in Australia and South Australia, particularly because many media organisations syndicate stories and images? Many Australians would be familiar with the stories highlighted by Justice Leveson, the few of which I have just mentioned now, because they read those stories or heard them when they were published by the Australian media.

Consider the recent example of a story on then prime minister, David Cameron. The story involves Mr Cameron and an incident that supposedly took place when he was a student at Oxford University. Accessible today on the advertiser.com.au website, the story, from 21 September 2015, is headlined 'Biography claims British PM David Cameron put "private part of his anatomy" into dead pig's mouth'.

The story reports on a book written by Tory peer Lord Ashcroft and journalist Isabel Oakeshott—a book serialised by the Daily Mail, a UK outlet which syndicates material to News Corp Australia. The story does use the word 'claims' in the headline and 'allegedly' in the first paragraph, yet it says the book is labelled as 'the most explosive political book of the decade'. The sordid allegations against Mr Cameron, when he was a member of the Piers Gaveston Society at Oxford, rapidly made their way from the established media onto social media channels.

Then, on 10 October 2015, just weeks after the claims were made, The Guardian reported comments from co-author Isabel Oakeshott at the Cheltenham Literature Festival which undermined any pretence at truth. 'The thing to point out about that story is that there is no need for burden of proof on a colourful anecdote where we're quite upfront about our own reservations about whether to take it seriously,' Ms Oakeshott was quoted as saying. The Times, part of the News group, wrote on 9 October 2015:

The former political editor who published claims about David Cameron engaging in obscene activities with a pig's head has said that they would not have passed muster as a news story in a serious newspaper.

Not only was the story published abroad and in Australia with minimal doubt cast on its truthfulness but also here we are, nearly a year later, and the original story still remains live on websites, easily accessible with a simple Google search. There are many other examples. Another is the Chilcot Inquiry, undertaken by Sir John Chilcot, on the invasion of Iraq, and that shows that the media is not merely a reporter of events but is an active participant. The inquiry report notes that Alastair Campbell, director of communications and strategy to then prime minister Tony Blair, had:

…recorded Mr Blair had taken a telephone call on 11 March 2003 from Mr Rupert Murdoch 'who was pressing on timings, saying how News International would support us, etc'.

As a participant urging the UK and US governments to invade Iraq, it is clear the media did not properly scrutinise the reasons for military action. Here in Australia we also have examples. The media approach to grab and run with a sensational article, while arguably not as common in Australia as in the United Kingdom, is definitely an issue to be considered. In 2012, former Federal Court judge Ray Finkelstein QC delivered a report to the commonwealth government of Australia on the media and media regulations. The judge said:

The level of public confidence in journalists as a professional group and the media as an institution is low, much lower than it is for other professions and institutions.

He cited a 1992 survey by Schultz that asked journalists why they thought they were held in such low esteem by the public. They put it down largely to sensationalist or inaccurate reporting. Further, a 2004 survey by Muller found that nearly three-quarters of voters held the view that journalists wrote stories they thought would be best for sales and ratings, even if it meant exaggerating the truth.

Collating the results of 21 public surveys conducted between 1996 and 2011, Judge Finkelstein said, 'Overall, the findings indicate significant concerns in the minds of the public over media performance.' In an effort to illustrate why the public might hold these attitudes, the inquiry examined the coverage of then recent issues. Several of these illustrated inadequate scrutiny of claims reported in news stories.

I believe in having a price on carbon, as do we on this side. One such example is an item published by the Daily Telegraph on 11 May 2011 purporting to show the impact on a family's budget of the federal government's carbon pricing scheme before its consideration in parliament and before a carbon price had even been set. The item contained estimates of the extra annual cost of food ($390), power ($300) and petrol ($150) to the family in question. Since the carbon price was at that stage unknown, there was simply no basis for assessing the cost impacts on food, power or petrol. The story also omitted any reference to the widely mooted income tax cuts. On bias, Justice Finkelstein said:

There is a widely-held public view that, despite industry-developed codes of practice that state this, the reporting of news is not fair, accurate and balanced.

On power and influence, Justice Finkelstein refers to comments made by Tony Fitzgerald QC in his report on corruption in Queensland, and I think this is very telling:

The media is able to be used by politicians, police officers and other public officials who wish to put out propaganda to advance their own interests and harm their enemies. A hunger for 'leaks' and 'scoops' (which sometimes precipitates the events which they predict) and some journalists' relationship with the sources who provide them with information, can make it difficult for the media to maintain its independence and a critical stance. Searches for motivation, and even checks for accuracy, may suffer as a result … This places an extra responsibility on the journalist. Both the journalist and the source have a mutual interest: both want a headline. Yet if the journalist is so undiscriminating that the perspective taken serves the purposes of the source, then true independence is lost, and with it the right to the special privileges and considerations which are usually claimed by the media because of its claimed independence and 'watchdog' role. If the independence and the role are lost, so is the claim to special consideration.

In his concluding remarks, Justice Finkelstein says:

It is relatively easy to identify failings in journalistic standards. One proponent of the status quo of self-regulation suggested that 'while it is trivially easy to demonstrate inaccuracies or biases or ethical lapses in the press, the proper solution to such failures seems to be working quite well' … (However) The ease of identifications of failings comes from the fact that they are not rare or infrequent. While some might be trivial, many are not.

As I said, I could go on and on, but consider two cases highlighted by The Advertiser newspaper on 7 July 2016 that it claimed illustrate the role of whistleblowers in a report headlined, 'Stories the Government didn't want you to know'. The first case was that of Shannon McCoole, a former employee of Families SA who is now gaoled.

Firstly, it is important to put on the record that the discovery of McCoole's crimes and his successful prosecution had absolutely nothing to do with the media involvement. McCoole was captured thanks to relentless work by detectives, extraordinary collaboration between police forces across Australia and internationally and clever operational tactics.

The story has been told by News Corporation paper, The Courier Mail, amongst others. Despite this, The Advertiser story of 7 July this year blows its own trumpet and claims the full extent of the rotten culture of Families SA would not have been revealed to the public for a considerable time if the paper had not published comments from whistleblowers who revealed that McCoole had been the subject of internal Families SA investigations.

The claim was published in support of The Advertiser's call for special protection for journalists. The Advertiser provides not one shred of evidence that there was any retribution or disadvantage to the whistleblowers or the journalists. Its call for protection is therefore completely unnecessary. Further, its claim that this indicates a story 'the government did not want you to know' is completely false by its own admission. In its report of 15 August 2014, announcing the establishment by the South Australian government of the Child Protection Systems Royal Commission, The Advertiser said:

Five of the terms of reference announced yesterday relate directly to failings within Families SA that have been identified in a series of reports in The Advertiser in recent weeks following the charging of a carer, 32, with the sexual abuse of seven preschool children.

So, rather than attempting to hide from the allegations made by the whistleblowers, right from the start the state government has brought those claims into the brightest spotlight possible, the highest form of inquiry in South Australia—a royal commission. I am going to finish up, because I have to, fairly soon.

Mr Picton: An extension of time.

The Hon. P. CAICA: I do not think that is allowed.

Ms Chapman: Spare us!

The Hon. P. CAICA: That is a bit rich coming from the member for Bragg, spare us! How often have we asked that of the deputy leader? I want to say a couple of other things. I accept that the media operates in an environment where competitive pressures force a faster pace of reporting, and that is obvious. I will also say that a lot of the journalists I know have a high level of integrity, but that does not mean from time to time that they are not put under pressure by their subeditors and their editors to write the story that they want written, 'Don't blame me, it was the subeditor. Don't blame me, it was the editor.'

I accept that they operate where competitive pressures force a faster pace of reporting. We also see that this is occurring as a loss of revenue has led to huge reductions in staff, especially in the mainstream print media. Many of the job losses have been from the ranks of experienced journalists employed as the checking mechanism within the publishing system, and this leads to errors and unsubstantiated claims making the public realm and then becoming established as fact.

As I said earlier, so many of my constituents say, 'It must be true, I read it in the paper,' despite the fact that I try to explain to them that what you are reading is not actually as accurate as it should be. It is very hard to get them back across the line because they read it in the paper and it must be true. It does not help that there are fewer journalists. As I said, they often have to report on matters on which they are not experts and therefore do not immediately identify mistakes.

I was going to finish with an example from Michael Owen, but I might save that for another day. In concluding this contribution, in calling for shield laws for journalists, the media has failed to make the case for change. Firstly, there is no accepted definition of who a journalist is and that should be afforded a special privilege. I notice that the deputy leader has not included a definition for a journalist in her amendments.

For someone to be called a journalist does not require any particular professional qualifications or assessment by an independent journalists' standards body. I think this is an unnecessary amendment and, as I have tried to show here, the call for shield laws and the protections to be afforded to journalists is just nonsense and not necessary at all. There is no evidence of any whistleblower being victimised or penalised for revealing a matter that is in the public interest.

Mr PICTON (Kaurna) (16:08): It is a tough act to follow the member for Colton and his contribution, but I will aim to make some brief comments in support of the second reading of this bill to support not only what he said but also the Attorney's introduction of this bill. If there is one striking memory I have from my first year studies in public law by Professor David Clark at Flinders University—and I think one of his passions is whistleblower protection laws—is that our whistleblower protection laws need to improve. I think that probably both sides of the parliament would agree to that. I think that this bill goes a long way to correcting and improving our whistleblower protection in South Australia.

As the member for Colton said, we have not had a history of significant issues when people have raised issues as whistleblowers in South Australia, and I think that is a positive thing. There have been a number of instances when people have been able to raise information publicly or with the appropriate authorities; however, as Commissioner Lander's review into whistleblower protection has shown, we do need to improve the way our whistleblower legislation works. Particularly in light of the new Independent Commissioner Against Corruption role in South Australia, as well as the Office for Public Integrity role in South Australia, I think it is worth looking again at these laws.

Essentially, what the Attorney has presented to the parliament is that we will be giving protection to people when they raise either public health information or public administration information dealing with things such as corruption or maladministration. When things are brought to the appropriate authority's attention—and that depends, of course, on the issue it refers to; for instance, if it deals with a public sector agency, it might be that the person responsible is the chief executive of that agency.

The Commissioner for Public Sector Employment could be another avenue for people. There are a whole range of other authorities with which people could raise issues, such as the Ombudsman or the OPI itself. Issues could be raised with the police or the Auditor-General or various commissions that might be set up, or the Judicial Conduct Commissioner himself. Should that not proceed to a satisfactory outcome, this bill then gives the added protection of then being able to raise issues with and disclose information to a member of parliament, and that can be any member of parliament in either house.

Of course, there are different members of parliament who are always eager to receive such information, so I do not think that will be an issue at any time. The member of parliament may then wish to raise the information they have received in the house using their parliamentary privilege, or they may want to deal with it in various other ways. However, at every step of the way, the person who raises those issues, in accordance with this legislation, will be protected and their rights will be protected. This is the very important crux of this legislation.

I will contrast this by looking at what recently happened federally when a disclosure of information was made about the performance of the National Broadband Network. That was made to a member of parliament, namely Senator Conroy, who was the Deputy Leader of the Opposition at the time, and the former minister for communications and a shadow minister. The government was particularly perturbed by this release of information federally because it showed up what I would regard as, arguably at least, their maladministration in terms of the way the National Broadband Network had been performing.

The department, or the NBN Co, raised that with the Australian Federal Police and asked them to investigate whether a crime was investigated by the release of that information to a member of parliament. During the federal election campaign, I think, we had AFP officers raiding the office of Senator Conroy, as well as the offices of staff members who worked for Senator Conroy and had received this information from the whistleblower.

This goes to show exactly what we are trying to deal with in this legislation. We are giving people an avenue to raise those issues with a member of parliament and to have protection so that people do not have to face the full onslaught of the police investigating the release of information appropriately to a member of parliament. The member of parliament may then wish to bring it to the attention of the house, as I am sure most opposition or minor parties would in such circumstances.

I think we will, upon the passage of this legislation here in South Australia, have a far superior public interest disclosure regime to what we see federally. If this law operated federally at the moment, then I think it would be fair to say that those investigations being conducted by the AFP into the release of information to members of parliament would not be happening, because they would have the protection of this bill to do exactly that. That has obviously led to us knowing more about some of the problems the National Broadband Network has had at a federal level, and it is not something that the federal government has wanted to be released at all.

Personally, I would like to see those resources being used for much more important police purposes because this is not something that revolves around national security, as most similar investigations by the AFP into leaked information might relate to. This is something about the performance of a domestic agency. I think what we will have here upon the passage of this legislation in its original form is a very superior legislative framework for whistleblowers, not only compared with what we currently have in South Australia but also compared with what we have federally.

I know that this plays into a range of different reforms we are seeing in this area (and we have the police complaints bill coming up soon), and I think all of these together combine to provide a new blueprint for the way that investigations into government behaviour works in South Australia following the passage of the ICAC legislation and some of the subsequent inquiries the ICAC commissioner has been providing advice to the government on, as well as advice to the committee which I used to sit on and which the member for Little Para sits on. It is chaired by the Hon. Gerry Kandelaars and it is looking into a whole range of these issues.

When I sat on that committee, it was certainly something that we looked at. I think that the passage of this legislation will be of significant benefit. It will provide adequate avenues to raise these issues, and I fully endorse it to the house.

Mr ODENWALDER (Little Para) (16:16): I, too, wish to make a very brief contribution to this bill. As the member for Kaurna said, I serve on the Crime and Public Integrity Policy Committee of this parliament. One of the many pleasures I have in serving on the back bench in this parliament is being able to serve on that committee and to occasionally talk to the Independent Commissioner Against Corruption—sometimes even in camera in a casual way—about the way the legislation that governs the way he works operates and also about other legislation. He is never short of a view about some of the other legislation, and often it is a very helpful view. As the member for Kaurna said, he has delivered several reports to the committee and to the parliament regarding various sorts of legislation.

In the first annual report of the committee, we recommended that the Whistleblowers Protection Act be amended to achieve a more coherent, more consistent legislative framework around public integrity, and that is something I support and I have supported since the establishment of the committee and the establishment of the ICAC legislation. I think it is all very important and I welcome—as we have been talking about for many years—a more seamless national approach to public integrity. I would welcome that.

Some of the work of the committee is coming to fruition, and this amendment really represents some of that work and obviously some of the work of the Independent Commissioner Against Corruption. As various other members have said, he reviewed the Whistleblowers Protection Act and reported in October last year, I think. He made the following observations about the purpose of this act and the need for this legislation to be amended and to fit more seamlessly with the rest of the integrity legislation. In his report, he said:

The Whistleblowers Act was designed to encourage and facilitate disclosures about wrongdoing in the public interest by providing whistleblowers with protections against civil and criminal liability, and by providing a mechanism for a whistleblower to make a claim for damages if he or she is victimised as a consequence of the disclosure.

…It might be thought that the whistleblowers legislation and the ICAC Act would work in a complementary fashion to encourage public interest disclosures in relation to wrongdoing in public administration. However, the two Acts employ different but overlapping definitions for corruption and maladministration and impose different reporting obligations on those in public administration.

What this bill does, and what the Crime and Public Integrity Policy Committee recommended in its first annual report, is really to tidy up some of that. It is based on those recommendations. The aim, as members have said, is to protect public officers making complaints about wrongdoing in public administration. It is about the right to protection for any person who makes an appropriate disclosure about conduct that relates to a substantial risk to public health or safety and the environment.

Among other things, the bill sets out the duties of responsible and principal officers to act on a disclosure and to establish procedures for dealing with disclosures and for dealing with risk management in accordance with guidelines issued by the Independent Commission Against Corruption. Perhaps most importantly, the bill provides for a statutory regime of oversight for whistleblower protection so that the effectiveness of the regime can be monitored.

Under this new system, the Office for Public Integrity will be aware of all public interest disclosures made under the new scheme. I welcome this. In my opinion, this is a good thing for overall public integrity and confidence in the government and the Public Service. We can always improve on public integrity measures, I believe. That is the work of the Crime and Public Integrity Policy Committee—to always talk to people who work in this area, such as the commissioner and the Attorney, and to examine the way that this legislation and related public integrity legislation is working and to seek always to improve it because we can always do better. I commend the bill to the house.

Ms HILDYARD (Reynell) (16:20): I rise to speak to the Public Interest Disclosure Bill. I wholeheartedly support the extraordinarily articulate comments of the member for Colton and also, of course, the members for Kaurna and Little Para. I rise to make a few very brief points, particularly in relation to one matter. The opposition, via the member for Bragg, in proposing to insert the word 'journalist' into our government's bill, our Attorney's bill, I think fails to define the term 'journalist'.

In an age when information is extraordinarily readily accessible and constantly disseminated around the clock, via both the internet generally and a range of social media, a blogger with a personal biased view and potentially no training whatsoever in responsible reporting could claim to be a journalist. As a result of conduct they have experienced from such bloggers, sadly I have had both constituents and friends speak with me about this particular issue. It is of great concern and it is dangerous.

Of particular concern to me is a number of friends I have in the women's movement who actively explore current issues, particularly those relating to violence against women on social media. As a result of this, they have been relentlessly harassed online, sometimes in quite violent terms, in response to their comments and in response to the articulation of their point of view. This has of course led to a great degree of fear and, rightly, a reluctance to articulate their views in an ongoing fashion in the public arena. In some cases, this has led them to changing address and taking other precautions.

Misinformation over matters in the public interest can also dangerously lead to overreaction and alarm, which can also cause significant but unwarranted consequences. For a person or persons who may be the subject of any irresponsible reporting or commentary, this can also be damaging to the individual's health and wellbeing and, of course, to the wellbeing and health of those close to them and indeed to our broader community's health and wellbeing.

If journalists are to be included, which our government does not support, there must be an appropriate definition of what a journalist is. Would such a definition then perhaps require an agency or other body to maintain a register of so-called journalists for the purpose of any such definition? I have just a couple of questions in closing: how would that work and what would be the criteria? I think those are the questions about the opposition's suggestions that must be answered before such an amendment could be made.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 6, line 10 [clause 6(a)]—After 'information to a' insert 'journalist or a'

I will not repeat all I said in the second reading, but this is the clause which, if allowed, will introduce the words 'journalist or 'a' before the words 'member of parliament', which will enable the disclosure to be within the definition of an appropriate disclosure to either of those parties. This is brought as an expansion which we say is necessary to allow for matters to be acted upon when clearly either members in positions of authority who are supposed to act on these things have failed to act. It does not come into effect unless there has already been, essentially, a disclosure to the relevant body and a failure to act on it within a certain number of days.

Essentially, in respect of the general case, if there has been a failure to notify of acting on a matter within 120 days, which really gives the relevant authority plenty of time to act and, if they do not, the publication can be made, as I said, to a member of parliament or to journalists to make sure that there is proper investigation into the complaint.

I have, in advance, a copy of a proposed amendment of the Deputy Premier to clause 7, which will follow, in which he is going to make a provision for the minister of the Crown to have a duty, an obligation, to refer any disclosures to him or her to the relevant authority. I assume that this will be some sop to our requirement that there be a process to ensure that disclosures are acted on. I will have a bit more to say about it in a minute, but it is woefully inadequate for what we say is necessary to make sure that these things are investigated. I commend the amendment to the house.

The Hon. Z.L. BETTISON: On behalf of the Attorney, we oppose the amendment.

The committee divided on the amendment:

Ayes 18

Noes 22

Majority 4

AYES
Chapman, V.A. (teller) Duluk, S. Gardner, J.A.W.
Goldsworthy, R.M. Griffiths, S.P. Knoll, S.K.
Pederick, A.S. Pengilly, M.R. Pisoni, D.G.
Redmond, I.M. Sanderson, R. Speirs, D.
Tarzia, V.A. Treloar, P.A. van Holst Pellekaan, D.C.
Whetstone, T.J. Williams, M.R. Wingard, C.
NOES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N.F. Digance, A.F.C. (teller) Gee, J.P.
Hildyard, K. Hughes, E.J. Key, S.W.
Koutsantonis, A. Mullighan, S.C. Odenwalder, L.K.
Picton, C.J. Rankine, J.M. Rau, J.R.
Snelling, J.J. Vlahos, L.A. Weatherill, J.W.
Wortley, D.
PAIRS
Bell, T.S. Kenyon, T.R. Marshall, S.S.
Piccolo, A. McFetridge, D. Hamilton-Smith, M.L.J.

Amendment thus negatived; clause passed.

Clause 7.

The Hon. Z.L. BETTISON: On behalf of the Deputy Premier, I move:

Amendment No 1 [DepPrem–1]—

Page 7, line 17 [clause 7(4)]—Delete 'This' and substitute 'Subject to subsection (5), this'

Amendment No 2 [DepPrem–1]—

Page 7, after line 18—After subclause (4) insert:

(5) If an appropriate disclosure of public interest information is made to a Minister of the Crown, the following provisions apply:

(a) the Minister must, as soon as practicable, refer the disclosure to a relevant authority; and

(b) the relevant authority—

(i) must deal with the information in accordance with this section (as if the disclosure had been made to the relevant authority); and

(ii) must ensure that the Minister is notified of the action taken under this section in relation to the information and the outcome of such action.

Amendments Nos 1 and 2 are related. The amendments provide a procedure for dealing with an appropriate disclosure received by a minister. The amendment implements recommendation 30 of the report of the review of the Whistleblowers Protection Act 1993.

Ms CHAPMAN: In ordinary circumstances, I would say that this amendment would help to strengthen the terms of the bill to outline an obligation of a minister of the Crown, if they are the recipient of the information, giving them a duty to report it. On the face of it, that would seem to be reasonable. However, when one looks at clause 7, there is absolutely no penalty whatsoever if a minister does not do that.

With this addition, there is no provision in this to add anything above what they currently have as some face-saving exercise if they are found out to have failed to comply with it. The proposed amendment states that they must, as soon as practicable, refer the disclosure to the relevant authority, and then the relevant authority must deal with it, etc. But so what if they do not do it? There is absolutely no penalty. I find this is really a false attempt to strengthen the obligation of those who are in authority to do something about this.

The only way to make people do the right thing in respect of their obligation not only not to interfere with someone who wants to complain and protect them under a victimisation regime, but also to make sure that the people who are supposed to do things, do things, is the threat of public exposure. Unless we have some actual direct obligation, some penalty if a minister does not do this, nothing happens. They should either be fined, gaoled, sacked, thrown out of the parliament, I do not mind—all of the above—but we need to have some penalty, otherwise this means nothing. I oppose the amendments.

Amendments carried; clause as amended passed.

Clause 8 passed.

Clause 9.

Ms CHAPMAN: I move:

Amendment No 2 [Chapman–1]—

Page 8, after line 5—After subclause (3) insert:

(3a) Subject to this section (and without derogating from any other law imposing vicarious liability on a person for the acts and omissions of agents or employees of the person), the Crown is, for the purposes of this Act, vicariously liable for an act of victimisation by an agent or employee of a public sector agency committed while acting in the course of their agency or employment.

(3b) In proceedings brought against the Crown, in accordance with this section, in respect of an alleged act of victimisation by an agent or employee of a public sector agency, it is a defence to prove that the principal officer of the public sector agency took reasonable steps to ensure that the agent or employee would not act in contravention of this Act.

(3c) Without limiting subsection (3b), a defence is established under that subsection in relation to an alleged act of victimisation by an agent or employee of a public sector agency if the principal officer—

(a) had complied with section 12 and, in particular, had ensured that the document required under section 12(4) had been prepared and was being maintained at the relevant time; and

(b) had taken reasonable steps to implement and enforce that document, including by—

(i) taking reasonable steps to make the employees and agents of the public sector agency aware of the requirements under the document; and

(ii) ensuring that action required under the document was taken promptly and in an appropriate manner.

Amendment No 3 [Chapman–1]—

Page 8, line 6 [clause 9(4)]—After 'a person' insert '(not being the Crown)'

Amendment No 4 [Chapman–1]—

Page 8, after line 12—After subclause (5) insert:

(5a) A person who has made or who intends to make an appropriate disclosure of public interest information and who reasonably suspects that they will be subject to an act of victimisation by another person (the respondent) may apply to the Equal Opportunity Tribunal for an order requiring that the respondent refrain from the relevant act.

(5b) An order of the Equal Opportunity Tribunal under subsection (5a) is enforceable, and may be appealed against, as if it were an order of the Tribunal under section 96(1) of the Equal Opportunity Act 1984.

These amendments amend the provisions in respect of victimisation. Essentially, the recommendation of Mr Lander was that there be an offence of victimisation, that there be a tortious remedy in respect of victimisation, that there be some relief able to be achieved with protection through the Equal Opportunity Commissioner where required and that there be penalties of up to $10,000. All of that is good. It is all consistent with what Mr Lander said, but he also said that there needed to be some other things done to protect the person who is exposing the government and who is being victimised or threatened to be victimised.

He made very clear that the Crown needs to be vicariously liable for an act of victimisation by an agent or employee of a public sector agency. Again, if the government is serious about this, they should include this provision. If they are going to act honourably and undertake this duty, which the Attorney's representative has indicated they will do with the preceding amendment, we need to make sure that if there is a failure to do that the Crown will be responsible and that there will be a process to take place where there is any alleged act of victimisation, consistent with Mr Lander's provision.

He also said, and this is covered by amendment No. 4, that there needs to be provision for a circumstance where a person who intends to make a disclosure, and who reasonably suspects that they will be subject to an act of victimisation, may apply to the Equal Opportunity Tribunal to obtain the appropriate injunction or refraining from that relevant act. Essentially, it is described as an order requiring that the respondent refrain from the relevant act, and then there are appeal rights as if it were any other order of the tribunal.

These are the sorts of extra provisions which were recommended by Mr Lander and which the government have chosen to cut out and excise in presenting this proposed new model. We say that this issue of victimisation is so serious, that it has been exposed as so deep and entrenched in the public sector, that it is necessary for us to have this extra protection in the bill for them. The government, you might recall, when asked questions about this extraordinary survey, basically said, 'We haven't had any complaints made to me or us.' It is just disgraceful to think that.

If there has not been a complaint to the Attorney-General or someone else, it ought to tell him something. It ought to tell him about the level of fear and concern in those in the public sector who want to make a complaint but are too frightened to, and that they ought to have some protection. Mr Lander set out an important model which included the provision for the Crown to be vicariously liable if the right thing was not done and, secondly, a power to take some preventative measure against being victimised through the Equal Opportunity Tribunal. Frankly, if the government are not prepared to accept these amendments, then they are not genuine and serious in their attempt to allow people to freely expose the conduct or failings of government, as they should be able to do.

The Hon. J.R. RAU: I thank the deputy leader for her remarks regarding these amendments. Her comments about the amendments are worthy of reflection but, unfortunately, this particular set of amendments was only filed yesterday, and I have not had an—

Ms Chapman: I only just got yours.

The Hon. J.R. RAU: Yes. I have not had a chance to reflect on these amendments, but I can give this undertaking: whilst I will not be supporting them here, I am open to talking to the deputy leader between the houses about whether we may come to an agreement on these words or words similar to these words. As a matter of general principle, I do not disagree with what the deputy leader says she is trying to achieve with these things. I just need to be, I guess, satisfied that there is no unintended consequence.

Amendments negatived; clause passed.

Remaining clauses (10 to 16), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT