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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-17 Daily Xml
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WHISTLEBLOWERS PROTECTION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 8 April 2009. Page 1924.)

The Hon. R.D. LAWSON (22:35): I indicate that Liberal members will be supporting the passage of part of this bill, but there are aspects of it that we do not agree with and will not be supporting, and in committee we will be moving appropriate amendments. Perhaps I should begin my remarks by saying that this bill will amend the Whistleblowers Act enacted in 1993—enacted, it might be said, amongst many predictions and much hope that the road of whistleblowers would be paved and that the legislation would produce a more open and accountable government and would encourage openness and accountability by providing protection for whistleblowers.

The legislation has not had anywhere near the positive effect that its original proponents had suggested it would. The enthusiasm, not only in this state but elsewhere, for whistleblowers' legislation has not waned; it still has a number of strong supporters who now say that the whistleblowers' protection ought be extended considerably. It is interesting that most states, I think, have a whistleblower scheme. The federal government does not have one under federal legislation, although in February of this year the House of Representatives Standing Committee on Legal and Constitutional Affairs produced a report as a result of its inquiry into whistleblowing protection within the Australian government public sector.

That report, which is accessible on the web, is entitled Whistleblower protection: a comprehensive scheme for the commonwealth public sector. I do commend the report. Although it is not an entirely comprehensive or convincing report in all aspects, it certainly is an up-to-date analysis of what should be included within whistleblower legislation. The two defects the honourable member has identified relate, first, to the fact that a whistleblower, in order to obtain protection under the current legislation, must in effect report maladministration or misconduct to the whistleblower's superior.

A hierarchy is set out in the act, for example, whistleblowing in relation to the use of public money; the appropriate authorities; the Auditor-General; where the information relates to a member of the police force to the Police Complaints Authority; and where the information relates to a member of the judiciary to the Chief Justice, etc. Disclosure of public interest information as defined must be made to an appropriate authority. What the honourable member proposes in this bill is to extend that hierarchy to include, in certain circumstances, the media, so that disclosure of public interest information, if it is made to the media, is deemed to be if the person reporting reasonably believes that reporting to another authority would cause detriment to the person or the authority would not act upon it. In other words, what is proposed here is that the whistleblower have the onus of demonstrating that the whistleblower believes on reasonable grounds that, if a matter is reported to another person or authority, detriment will be caused to that person or the authority would not act upon it. That is a fairly high onus, a difficult hurdle to be cleared by a whistleblower.

The case referred to by the honourable member is the celebrated case of Alan Kessing, who was a security person with an involvement in airport security. He wrote a report about the lack of security at airports, which was not acted upon by governments over a number of years; I think a couple of years. Ultimately, Mr Kessing leaked the report to The Australian newspaper, which published it. There was a great furore and alarm that our airports lacked security. Mr Kessing was remonstrated with by his superiors, having raised the matter of security.

The government immediately took action to improve security. However, for his troubles in this matter, Mr Kessing was sentenced to a term of imprisonment for releasing confidential information. I believe that he is currently applying to the High Court for leave to appeal against that conviction. I do not have any up-to-date news on the status of that application. I would be pleased to hear from the mover in his response whether or not Mr Kessing has obtained some redress in the High Court.

Irrespective of the fate of Mr Kessing, it does highlight a difficulty where Mr Kessing, it could be said, believed on reasonable grounds that if he had reported the matter to a superior authority no action would be taken. In fact, he had reported it to authorities up the line. Apparently, he had been quite persistent in those complaints, but he was not listened to until after he had leaked the information.

Ordinarily we would not think it necessary for legislation of this kind to be passed, but the fact is that we have learned from the inactivity of this government in relation to matters of public maladministration, and we now realise that the whistleblower legislation has not been effective here. This government will not listen. It has the capacity to bully and cower departments and others. It is keen on intimidation and it does not like to see material in newspapers which it has not chosen to leak to its advantage.

A good example of this government's attitude to whistleblowers legislation can be seen in the existing provisions. Section 5(5) provides:

If a disclosure of information relating to fraud or corruption is made, the person to whom the disclosure is made must pass the information on as soon as practicable to—

(a) in the case of information implicating a member of the police force in fraud or corruption—the Police Complaints Authority;

(b) in any other case—the Anti-Corruption Branch of the police force.

If disclosure is made about fraud or corruption this section provides that it be reported that the Anti-Corruption Branch of the police force.

It is quite interesting to note what happened at the end of 2002 when the Treasurer's assistant reported the fact that Randall Ashbourne was endeavouring to obtain appointment to government boards for Ralph Clarke. Following the Whistleblowers Protection Act, that report should have been made immediately to the Anti-Corruption Branch of the police force, but it was not. The government commissioned an in-house inquiry, conducted by the head of the Premier's department, who, not surprisingly, first, whitewashed Randall Ashbourne, the senior adviser to the Premier; and, secondly, also not surprisingly, bungled the investigation so that certain evidence would not subsequently be used effectively.

On that occasion, the government failed to honour the whistleblowers act by reporting a matter to the Anti-Corruption Branch. It went off, and for seven months remained absolutely silent about this. He made no report to the police. Eventually, they had to report it to the Crown Solicitor, who said immediately, 'This should be referred to the Anti-Corruption Branch', and it was; and, in consequence of that, certain things eventuated. The public was kept in the dark. The government managed to avoid political embarrassment for some time.

The point is that this government is not particularly interested in complying with the spirit of the Whistleblowers Protection Act and we think it is appropriate that the amendment which would allow a person who, on reasonable grounds, believes that, if he or she reports to another, that person will suffer detriment. This is a surprising attitude to be taken by one of the political parties represented in this chamber which will be in government in the fullness of time—probably next year, but certainly at some later time—but you might say, 'Well, if you think you are going to be in government, the last thing you want to do is encourage public servants and others to be providing information to the media.'

However, we believe that it is appropriate that a person have that opportunity, and we believe strongly enough in accountability that we think this reform ought to be adopted. It is also fair to say that the protection offered under the whistleblowers act (as it exists) is pretty limited. Informants simply cannot be prosecuted or victimised—that is what the act says—but the fact is very few people who are minded to be whistleblowers believe that they will escape scot-free from victimisation. They think there will be some retaliation from the department, their superiors or the government, and most are simply not prepared to take on the system.

You have to be a particular sort of person to want to be a whistleblower. You may well avoid prosecution because you cannot be prosecuted, but the way of the whistleblower is still extremely difficult. There are few incentives in the whistleblower legislation to encourage people to come forward. As I say, there is simply this rather mild protection.

The second reason why the Whistleblowers Protection Act has not been as successful as its proponents originally hoped was that—and this is surmise on my part—most potential whistleblowers thinking about it would probably come to the conclusion that not much will happen, even if they do release information to their superior, and what is the point of it. I must say I have become cynical enough to know that it is much more likely for action to be taken by a government if it feels that the sterilisation of sunlight will occur through the media.

Incidentally, I should say here that in the fullness of time South Australia will have an independent commission against corruption, which will be important. However, in the absence of such a commission we have to provide avenues and pathways for whistleblowers to come forward. One would hope that when an independent commission is established it will provide a universal avenue which will engender public trust; people will believe that they can go to that commission and not suffer retaliation, reprisals or victimisation.

The current scope of the Whistleblowers Protection Act is that public interest information is information that relates to maladministration, illegality, corruption and the like. The second part of the Hon. Mr Winderlich's bill seeks to extend the notion of public interest information to matters such as breaches of public trust, scientific misconduct, and conduct causing danger to public health or safety or to the environment. We believe there is a danger in such a widening of whistleblower protection legislation.

The notions of what is public trust and what is scientific misconduct and the like are rather vague. We do not want to turn the Whistleblowers Protection Act into some sort of zealot's charter, so that everyone who has a bee in their scientific bonnet can accuse public health officials and others of scientific misconduct, of being a climate change sceptic and therefore being guilty of scientific misconduct. We believe that is going a bridge too far, it is extending whistleblower legislation beyond what it is intended to be—that is, a mechanism for exposing maladministration, fraud, illegality and the like.

I know the mover of this bill is a passionate supporter of environmental causes, but we believe it would be going too far if we were to turn the whistleblower legislation into a charter for environmental activists. We will not support that aspect of the bill and will seek to have it excluded during the committee stage. However, subject to that exclusion we will support the extension of whistleblower protection for reports to the media in the circumstances outlined in the bill.

Debate adjourned on motion of Hon. B.V. Finnigan.

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