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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-10-18 Daily Xml
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Public Interest Disclosure Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (18:31): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce this important Bill. This Bill compliments the establishment of the Independent Commissioner Against Corruption and the proposed new police complaints scheme. Together they provide a comprehensive scheme for the disclosure and investigation of complaints about alleged wrongdoing in public administration and for appropriate support and protection of persons who make those disclosures.

The proposed scheme will replace the Whistleblower Protection Act 1993, which was ground breaking legislation at the time, but no longer represents best practice in this area and is no longer a comfortable fit with the modern integrity landscape. With the introduction of the Independent Commissioner Against Corruption Act in 2012 the Government committed to a review of the whistleblower legislation. This Bill is based on the recommendations of the review carried out by the Hon Bruce Lander QC. The review included a long and extensive consultation process. Submissions received during that process were supportive of the proposed legislation.

This 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 reprisal. The definitions in the Bill complement the scheme established under the ICAC Act. For example corruption, misconduct and maladministration in public administration, public administration and public officer have the same meaning as in the ICAC Act, and public administration information means information that raises a potential issue of corruption, misconduct or maladministration in public administration (whether occurring before or after the commencement of this Act).

However, 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. It would be hard to argue that such disclosures should not be encouraged and facilitated and that persons making such disclosures should not have the protections of the scheme.

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 so that its truth may be investigated, and the public officer must make the disclosure to a relevant authority, defined in the Bill. Of course, like the ICAC Act, a critical aspect of the bill is confidentiality. The Bill provides an offence for knowingly divulging, without the consent of the informant, the identity of the informant except in certain circumstances which carried a maximum penalty of $10,000 or imprisonment for 1 year. The Bill also contains an identical offence of victimisation to that contained in the ICAC Act. A person who makes an appropriate disclosure is not subject to any liability as a result of that disclosure. The Bill places a duty on the person who receives an appropriate disclosure to take action in relation to the information and to take reasonable steps to keep the informant advised of the action and the outcome of any investigation. Under this scheme, principal officers of public sector agencies and councils and persons designated as responsible officers are required to take appropriate action.

The Bill complements the important reforms already taken by the Government for the maintenance and improvement of the quality, accountability and integrity of public administration in this State. It provides an appropriate balance between the Government's need to conduct its business at times confidentiality with the need for transparency and accountability in conducting that business.

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 a member of Parliament

This clause sets out an additional way 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).

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. D.W. Ridgway.

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