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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-10-23 Daily Xml
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Bills

Public Interest Disclosure Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 September 2018.)

The Hon. C. BONAROS (15:27): I rise to speak on behalf of SA-Best in support of the second reading of the Public Interest Disclosure Bill 2018. The bill, as we know, repeals the Whistleblowers Protection Act, now 25 years old, and replaces it with a contemporary scheme that is more suited to current attitudes about disclosure of wrongdoing in public administration. It also recognises the existence of the Independent Commissioner Against Corruption and the Office for Public Integrity.

Harrowing scandals, such as occurred at Oakden, demonstrate the need for robust and effective whistleblower protection, something that has never been needed more. Public trust in our institutions is at an all-time low, and there is no doubt that whistleblower protection is integral in fostering transparency, promoting integrity and uncovering misconduct. By protecting whistleblowers we are promoting a culture of accountability and integrity in our public institutions. Whistleblowers perform a vital service to our organisations by forcing us to focus on failings, on our failings, on challenging our ideals and shining a light on the limits and failings of our institutions. It is for these reasons that SA-Best supports the bill.

The bill has had a long and difficult history. In March 2013, the then attorney-general requested that the Independent Commissioner Against Corruption review the legislation. A report was subsequently prepared for parliament, with the commissioner making 30 recommendations supporting a rewrite of the law. Regrettably, there was little advancement with respect to whistleblower reform, and the resulting Labor government bill did little to give effect to the commissioner's recommendations and provided little in the way of real whistleblower protection reform. The bill subsequently languished throughout 2017 following a deadlock on the former government's substandard bill.

A change in government has seen the issue of whistleblower protection firmly placed front and centre of a suite of reforms that have included updated shield laws which recently passed in this place, which is something we are extremely grateful for. We thank the government for its commitment to whistleblower reform, and for the way in which it has engaged with us on the bill, specifically in relation to our amendments.

The legacy left by Nick Xenophon of SA-Best with respect to whistleblowers and their need to be protected and properly compensated cannot be overstated in this regard. He fought for strengthened protections for whistleblowers and was instrumental, with the support of the federal government, in establishing the commonwealth Parliamentary Joint Committee on Corporations and Financial Services' report into whistleblower protections in 2017. He fought for many years for substantive protection for whistleblowers and he continued to make the case for a reward scheme for whistleblowers, sometimes referred to as a bounty scheme.

Whilst I note that Commissioner Lander's 2014 review considered and ultimately rejected a bounty or reward scheme being offered to public servants who report wrongdoing, our team continued to argue for a reward scheme in exceptional circumstances. The commissioner stated in his review that, and I quote:

In my view there would need to be evidence of a very serious corruption in public administration in South Australia before it would be appropriate to introduce incentives in the public sector in such a radical way.

For the life of us, we do not need to wait for another Oakden scandal for a rethink on this issue. Indeed, SA-Best went into the 2018 state election with a clear policy for a reward scheme for whistleblowers. We were heartened by the now Premier's comments in relation to this issue as reported in The Advertiser on 15 January this year, where he said, and I quote:

The push for payments was supported by the Liberal Opposition Leader, Steven Marshall, who has said his party had adopted a policy of paying whistleblowers "years ago".

I am keen to understand Premier Marshall's change of heart, if that is what it is, in relation to these comments on this issue of a reward scheme, and will be asking questions in that regard during the committee stage of the bill.

Turning now to key aspects of the bill, its purpose is to facilitate disclosure 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 reprisals. The bill also provides for protection for disclosures by members of the public about any wrongdoing in the private or public sector where the information is disclosed to an appropriate recipient and the information relates to a substantial risk to public health or safety and the environment.

Further, it imposes a duty on the person who receives an appropriate disclosure to take action in relation to the disclosure and take reasonable steps to keep the informant advised of the action or the outcome of any investigation. The bill also allows a disclosure to be made to a member of parliament or a journalist where a person has made a disclosure in accordance with the requirements under the bill and either does not receive notification within 30 days that an assessment has been made or does not receive notification within 120 days, or longer as specified in a written notice, of the disclosure of the outcome of the assessment.

I will be moving a number of amendments on behalf of SA-Best: firstly, an amendment to this provision which will reduce the amount of time a person is required to wait before they can approach a journalist or member of parliament from 120 days down to 90 days to receive a response of the outcome of the action taken, because 120 days is simply too long. SA-Best is only too aware that in some situations wrongdoing may be so serious in nature and so requiring the utmost urgency that any outcome of an assessment into the disclosure must be done in a reasonable period. In our view, 90 days strikes the right balance.

I note that the Hon. Mark Parnell has filed an amendment that recalibrates the definition of journalist in line with the definition that ultimately passed when we dealt with shield laws. SA-Best supported the broader definition at the time and we will again support the Greens' amendment in that regard. So too the government has filed amendments which delete the regulation-making power in line with the similar SA-Best amendment which was successfully passed when the chamber dealt with shield laws.

The opposition has introduced amendments that raise questions about whether there are people who need the protection of this law who are not currently protected—that being people who are not public servants. SA-Best's position on those amendments, whilst not final, is sympathetic, and we are keen to hear from the opposition once we enter the committee stage of the bill in relation to the rationale behind those amendments.

Meanwhile, the state Ombudsman conducted a review of the freedom of information laws, with a report on the same tabled in approximately June 2014. This report highlighted the need for the protection of FOI officers against ministerial interference. Notably, both reports recommending substantial reform appeared after the 2014 state election.

Effective and robust whistleblower protections provide an absolutely essential service in fostering integrity and accountability while deterring and exposing misconduct, maladministration and corruption. We know that the cost for disclosing such conduct can be catastrophic for the whistleblower, with many individuals suffering future reprisals and having to leave their field of employment, while others remain in fear for their jobs and livelihoods. This was evident in submissions received by the parliamentary joint committee that I referred to earlier, the report of which was published in September last year—in relation to a reward scheme.

On behalf of SA-Best, I will also be moving amendments to increase the penalties to a number of clauses in the bill to recognise the gravity of breaching those provisions and bringing those penalties in line with similar proposed federal legislation. I will also be moving an amendment which expands the scope of the proposed definition of 'detriment' under clause 9 of the bill. Whilst we note that the list is inclusive and not exhaustive, SA-Best remains of the view that it is of benefit to broaden the scope of loss or damage to include damage to reputation and that injury or harm include psychological damage.

I will also be moving a further amendment which clarifies the meaning of a ‘threat’ for the purposes of the victimisation clause in the bill. The proposed amendment clarifies that a threat to cause detriment need not be express or unconditional but may also be implied or conditional. In addition, it is not necessary for a person seeking an order to prove that he or she actually feared that the threat will be carried out. This is consistent with the federal Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017.

Finally, we will also be moving amendments about a reward scheme, as previously referred to. The amendment provides for the ability of the minister in his or her absolute discretion to make an ex gratia payment to a whistleblower where an appropriate disclosure is made—as a reward for doing so. The amendment also provides for the minister to reimburse a whistleblower for reasonable expenses incurred in making that disclosure, regardless of whether a detriment was suffered, as a means of recognising any reasonable expenses a whistleblower would ordinarily expend in making an appropriate disclosure.

Reward schemes, we know, exist in Canada and the US, and they have worked in those jurisdictions with great effect. The bill represents a missed opportunity with respect to a reward scheme. That is something that I would have thought, given the comments I referred to earlier, this government would have jumped on. Offering legal protections is not enough for someone who has knowledge of corruption or misconduct to come forward and risk their livelihoods. Whilst I note that the bill provides for a whistleblower to pursue litigation, for many that is too costly or traumatic to endure.

As the Greens Senator Peter Whish-Wilson has stated to the Senate inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017:

Rewards work. They encourage disclosure. They recover ill-gotten gains. And they help compensate whistleblowers.

I also note the recommendations of the Parliamentary Joint Committee on Corporations and Financial Services report on whistleblower protections previously referred to, which also recommended the implementation of a reward scheme.

The protection of whistleblowers is something that SA-Best's federal colleague Senator Rex Patrick has continued to advocate for, following Nick Xenophon's departure from the Senate. Along with Senator Nick McKim of the Greens and Independent MP Andrew Wilkie, Senator Patrick continues his strong advocacy and support of Witness K following revelations of the ASIS operation to bug the East Timorese cabinet offices in 2004 during the oil and gas revenue treaty negotiations. Senator Patrick stated that:

Not only was the bugging operation wrong, it has been a total foreign policy, defence and economic disaster.

Senator Patrick believes that the operation was morally bankrupt and unlawful, whereby the Australian government ordered an espionage operation against East Timor's negotiators to gain a significant advantage in those negotiations.

As we know, Witness K and his lawyer, Bernard Collaery, have been charged for revealing the bugging operation. As this case exemplifies, whistleblowers face a large number of potential adverse consequences if they speak up. They are real, they are emotional and they are financial, and they can affect people for many years thereafter when all they were doing by speaking out was their job.

In the ICAC's 2015 annual report, a survey of 7,000 public servants revealed that one in four were reluctant to report alleged acts of corruption, misconduct or maladministration, with the most common concern being personal repercussions and job losses. Providing effective legal protection and clear guidance on reporting procedures will serve to support an open organisational structure where public servants are not only aware of how to report but also have confidence in the reporting procedures.

It is hoped that this bill will address failings of the current act and offer substantive protection to whistleblowers, in which our public servants can have confidence. With those words, we will be supporting the legislation. We look forward to the committee stage of the debate and we also hope that this is the beginning of a further consideration of a reward system for South Australia. I would just like to correct the record. The Hon. Mark Parnell might be able to clarify this, but I think the amendments I referred to are not going to be moved by the Hon. Mark Parnell on behalf of the Greens.

The Hon. M.C. Parnell: That's right.

The Hon. C. BONAROS: That is right, so there is no need to indicate our position on those. With those words, we support the second reading of the bill.

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

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