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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-08 Daily Xml
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WHISTLEBLOWERS PROTECTION (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. DAVID WINDERLICH (16:15): Obtained leave and introduced a bill for an act to amend the Whistleblowers Protection Act 1993. Read a first time.

Second Reading

The Hon. DAVID WINDERLICH (16:16): I move:

That this bill be now read a second time.

Whistleblowers stand up for all of us when they raise their concerns about misconduct, corruption, wrongdoing and maladministration. The current whistleblowers act relies on reporting to delegated authorities breaches of public trust or corruption, but sometimes those authorities are implicated in the corruption or maladministration or they are controlled by higher officials who are implicated in the corruption or maladministration. Sometimes the authorities are innocent at the time but, to avoid embarrassment, still desire to cover up, or have an interest in covering up, the misdeeds of earlier administrations.

The Democrats have a commitment to open and honest government. In 2008 the Democrats questioned why a critical report on the health of Lake Bonney, which highlighted the need for an additional 20 gigalitres of water, was kept secret; we questioned why the Natural Resources Committee, when looking into Deep Creek forestation, omitted key scientific findings that were embarrassing to the government and a hindrance to its plans. In the federal sphere, Democrat Senator Andrew Murray campaigned strongly for greater protection of whistleblowers through his private member's bill, introduced in 2001 and reintroduced in 2002 and 2007. The current federal parliament commissioned a report in February this year that supports the amendments proposed by Senator Bartlett.

My bill adds two main provisions, in particular, to the Whistleblowers Protection Act. One relates to scientific misconduct, which needs to be recognised as an important area for protection for whistleblowers, because the complexity of the modern world creates two potential sources of maladministration and corruption around scientific misconduct. One of those relates to the greater temptations created by the increasing commercialisation of research, which creates incentive for people to overly promote or downplay the results of their research. The other area of potential threat to the public good is the increasing reliance of government decisions on expert scientific advice. The environmental impact statement for the Pomanda weir is one example where it is essential to have independent, credible scientific advice. In processes like that, anyone who is aware of maladministration or corruption, suppression or distortion of findings, should feel entirely secure in coming forward to expose that.

Another critical area is to give protection to people who go to the media. The media should not be the first port of call; there should be a system of delegated authorities to which whistleblowers can go, but there are times when whistleblowers do not have confidence in those delegated authorities—for very good reasons. My bill makes it possible for whistleblowers to go to the media where they have good grounds to believe that that is the best way to actually expose the corruption or maladministration and highlight their concerns.

Whistleblowers do us all a service and, in fact, often protect us. A very good example of that is the case of Allan Kessing. In June 2007, Allan Kessing was given a nine-month suspended prison term after being found guilty of leaking a 'protected' report that exposed ongoing security problems at the airport. Kessing had blown the whistle in 2005, after the report was provided to TheAustralian newspaper. The report, which he had written as an Australian customs service officer, identified a range of serious security breaches at Sydney Airport. It highlighted the employment of baggage handlers with criminal records, the theft of luggage and drug trafficking. It had been buried within the department and reportedly was not sighted by the minister until it was leaked (an action for which Kessing denies responsibility) some 30 months after it was written.

The furore was addressed by the government commissioning a report from a UK security expert, Sir John Wheeler, which confirmed Kessing's findings, and this prompted the government to announce the investment of over $200 million to boost airport security. It was one of the most extensive improvements to Australian airport security ever, and it was brought about by a whistleblower.

Crown prosecutor Lincoln Crowley argued that a prison sentence was necessary to deter other potential whistleblowers amongst the Public Service. Kessing's barrister argued that there was nothing wrong in exposing a government agency to criticism if that criticism was justified by maladministration and/or incompetence, and I think that would be very much the view of the ordinary person on the street. Justice James Bennett indicated:

Whether or not it is appropriate to view the offender in the heroic light in which he has been bathed by some...there is no justification for communicating the contents of the reports.

Hence, Kessing's gaol sentence. Prior to the sentencing, Kessing had commented that the trial:

...basically shows that anybody who knows of maladministration or corruption either in the private or the public sector, would be well advised to say nothing, do nothing, keep your head down and look after your career and your mortgage. It takes away the individual's responsibility and participation in what was once a constitutional democracy. We are being governed by fear at the moment; it's what the government wants and everybody else has to just—you know, head down, tail up...

The South Australian government's party colleagues at federal level have recognised the need for greater accountability within the public sector and the need to widen the scope of the federal whistleblower legislation to include breach of public trust, scientific misconduct, wastage of public funds, danger to public health and safety, and dangers to the environment, all of which I have proposed in this bill. Rejection of this bill by the South Australian Labor government would be a clear indictment of federal Labor policy.

The government has a very familiar mantra, which we hear in many contexts. It says that, if you have nothing to fear, you have nothing to hide. This bill, which is one of a number I will be introducing, is based on the very same premise; that is, if you have nothing to fear, you have nothing to hide. If the government indeed believes this and applies this mantra to itself, it will support this bill; to do otherwise would prove the government to be soft on corruption. The Democrats will attempt to continue to be a thorn in the side of governments which refuse to address corruption. I commend the bill to the council.

Debate adjourned on motion of Hon. I.K. Hunter.

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