HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-11-06 Daily Xml
Contents
Pdf Xml

Bills

Public Interest Disclosure Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 October 2018.)

The Hon. R.I. LUCAS (Treasurer) (15:29): I think all members who wanted to speak have spoken, so on behalf of the government I thank honourable members for their contribution to the bill. There are a number of amendments, and I think there may well have been a slightly revised version of an amendment tabled this afternoon. I look forward to the debate in the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I suspect there will be ready answers because these are questions that have been asked regularly at clause 1 on Attorney-General's bills: who had the government consulted with in the preparation of this bill, what submissions were provided and what was the tenor of those submissions?

The Hon. R.I. LUCAS: My advice is that, because this bill was so similar to the bill the former Labor government introduced, no further consultation was deemed to be necessary because the former Labor government, one would assume, would have conducted wide consultation with all interested stakeholders. Because it was so similar to the bill introduced by the former Labor government, the consultation the former government had undertaken was relied upon in terms of the introduction of this piece.

The Hon. C. BONAROS: I have a question in relation to how information regarding the bill is going to be provided to public servants. What sort of education campaign are we going to have around this new piece of legislation?

The Hon. R.I. LUCAS: My advice is that, upon passage of the legislation through the parliament, the Attorney-General's Department, in consultation with the ICAC commissioner and his staff, more particularly with the Office of the Commissioner for Public Sector Employment, will work together on an appropriate commencement date for the program. In part, that will be guided by the need for public sector employees to be provided with information about the new legislation.

The final shape and nature of the communication program and education materials for public servants has not been concluded yet. One will need to wait for the passage of legislation to see exactly what needs to be communicated before you can make those decisions. I think the honourable member would understand that. Once the parliament has agreed on what it wants to see enacted then the public sector can respond accordingly. Those three agencies will work together in terms of what is an appropriate communication/education program to ensure public servants, in particular, are properly educated about the new roles and responsibilities under the legislation.

The Hon. K.J. MAHER: That raises some important points. Will ministers and their staff be provided with training about what constitutes appropriate disclosures and how to deal with them?

The Hon. R.I. LUCAS: I think, as the honourable member would probably appreciate, having been a former minister, the answer is that that would be an important part of the education and communications program, particularly for staff working in ministers' offices. I am not sure whether it will go as far as becoming formalised, as might be inferred from a training program, but the provision of communication and educative materials being made available to ministerial staff, and indeed to ministers, would certainly be part of the overall program as well.

The Hon. K.J. MAHER: In addition to the penalties dealt with in the legislation, will consideration be given for the introduction of codes of conduct or similar documents for those who do not deal appropriately with disclosures, particularly in relation to ministers and their staff?

The Hon. R.I. LUCAS: There is certainly a code of conduct for public servants. I need to take advice—I do not have an immediate response—as to whether the code of conduct that applies to public servants automatically applies to ministerial contract staff. I suspect the answer is no.

I know, as a minister in the new government, that one of the issues we are considering is the notion of a code of conduct for ministerial staff. I am not sure that under the former government there was actually a code of conduct specifically relating to ministerial contract staff, but that is an issue we will take on advisement and consider what an appropriate response would be.

I suspect those who are seconded into ministerial offices are, by and large, public servants, and I suspect the code of conduct that relates to public servants generally would probably apply to those public servants who are seconded into ministerial offices. I guess the special group is that handful of people who are ministerial contract staff; that is, they have a contract with the premier of the day. It may well be that there was no existing code of conduct for them under the former government.

It is an issue that, as a minister in the new government, I have applied my mind to, and I will be considering what options, if any, there might be in that area.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. M.C. PARNELL: To assist the committee, there are two amendments that were filed in my name and there are two amendments filed in the name of the Treasurer. The issue is in relation to the definition of 'journalist' and, whilst my amendments were filed some four months ago, my recollection is that it was generally agreed that the definition of 'journalist' in this legislation should be the same as the definition of 'journalist' in the shield laws legislation that we passed some little while ago. As a consequence of that I do not intend to move either of my amendments and will be supporting the Treasurer's amendments which, I understand, ensure that those two definitions are consistent.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 3, line 29 [clause 4(1), definition of journalist]—

Delete '(subject to a regulation made under subsection (2))'

In doing so can I agree substantially with the statements that have just been made by my friend and colleague the Hon. Mr Parnell. This amendment and amendment No. 2 in my name simply seek to make the definition of 'journalist' in this bill consistent with the definition that was agreed to by this place in relation to the journalist shield laws. So I just repeat exactly what the Hon. Mr Parnell has indicated.

The Hon. J.A. DARLEY: I indicate that I will be supporting the government's amendments.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 4, lines 34 and 35 [clause 4(2)]—Delete subclause (2)

This amendment is consequential on the first.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 5, line 1 [clause 5(1)(b)]—Delete 'public officer' and substitute 'person'

Amendment No 2 [Maher–1]—

Page 5, line 14 [clause 5(4)]—Delete 'public officer' and substitute 'person'

Amendment No 3 [Maher–1]—

Page 5, line 16 [clause 5(4)]—Delete 'public officer' and substitute 'person'

This is one where if there are reasonable explanations I am happy to either withdraw or not support my amendments, and there may be reasonable explanations, but I guess this is a good time to tease those out.

Under clause 5 the bill provides immunity for appropriate disclosures of public interest information. There are two types of information that can be disclosed: firstly, in relation to the disclosure of environmental and health information, and under the scheme it is 'a person' who makes a disclosure of environmental and health information who is granted immunity for appropriate disclosure, but when it comes to the disclosure of public administration information it is only a 'public officer' who is afforded that protection.

One example that has occurred to the opposition is if there is a contract to supply stationery to a government department, and there is someone within government, a public officer under the definition, who thinks that there is inappropriate public administration, that public officer who reveals the information about this stationery contract gets the protection of immunity, but if it was someone in the private sector who was supplying the stationery who made that disclosure, they are not afforded that protection. So it does not provide the same incentive for someone who would tend to reveal the same information about impropriety because they are in the private sector rather than the public sector. We are wondering if there is a policy rationale for the two different definitions for the different things, and is that an example that could be the case?

The Hon. R.I. LUCAS: The government's position is to oppose, and I have a lengthy explanation as to why. I am happy to put that on the record and then perhaps, if that still has not convinced the Leader of the Opposition, I am happy to take further more specific questions.

The reasons for the government opposing are as follows. One of the reasons for reviewing the Whistleblowers Protection Act was that having enacted the ICAC Act the legislation did not align with or recognise that new integrity measure. Under the ICAC Act any person can report conduct that the person reasonably suspects involves corruption or misconduct or maladministration in public administration to the Office for Public Integrity. A public officer is obliged to report conduct that he or she reasonably suspects raises a potential issue of corruption or serious or systemic misconduct or maladministration in public administration. The bill and the ICAC share policy objectives and operate in the same area. They should operate in a complementary manner to enhance integrity in public administration.

One of the criticisms of the Whistleblowers Protection Act, when reviewed by Mr Lander in 2014, was that it captured many kinds of whistleblowers. The argument that whistleblower protection should be available for the broad range of complainants was made as early as 1991 by the Queensland Electoral and Administrative Review Commission reporting in the wake of the Fitzgerald Commission, and South Australia adopted this approach in 1993, but Queensland did so only in part. Since then, three other jurisdictions have adopted the broad approach but in doing so did not need to consider the operation of coexisting integrity legislation.

The decision to confine the protections under the proposed legislation is based on the recommendation of the Hon. Bruce Lander QC in his report on the review of the Whistleblowers Protection Act 1993. In his review, Mr Lander specifically considered the question of whether the protection should apply to any person who makes a disclosure of public information in relation to conduct in the public sector and concluded that they were not needed because, first, a member of the public does not need special encouragement to make a disclosure about unacceptable conduct in public administration because he or she is unlikely to be subject to organisational pressure to refrain from reporting the unacceptable conduct.

Secondly, a public officer is more vulnerable than a member of the public to the kind of victimisation that the legislation seeks to prevent; that is, a member of the public is unlikely to lose his or her job, suffer demotion or face disciplinary action as a consequence of making a disclosure about unacceptable conduct in public administration. Thirdly, members of the public may make a complaint about unacceptable conduct in public administration to the Office for Public Integrity or the Ombudsman and enjoy an appropriate level of protection. Both the ICAC Act and the Ombudsman Act contain provisions concerning a duty to inform a complainant about an outcome of a complaint.

That said, the bill does contain provisions for reporting by any person where the matter concerns a substantial risk to public health or damage to the environment. This was a specific recommendation based on the fact that the wrongdoing will not necessarily be restricted to conduct carried out in the public sector and the person with knowledge of the wrongdoing may not be a public officer. This is consistent with the legislation of other jurisdictions. The amendment is not necessary, in the view of the government, and will affect the complementary operation of the proposed legislation with the ICAC Act. It is for those reasons that the government is opposing this particular amendment.

The Hon. M.C. PARNELL: The opposition posed a reasonable question as to why there appeared to be different provisions for public servants and non-public servants, but I think the minister has given a reasonable explanation based on the work of Commissioner Lander. One of the things that he has told us just now rings true to me, and that is that non-public servants are not going to face the same level of potential discrimination within the Public Service if they do not work there. There is less harm that can be done to them and, therefore, less need for whistleblowers' protection rules to apply. On balance, to keep legislation consistent, I do not think the opposition has made the case for these three amendments, and the Greens will not be supporting them.

The Hon. K.J. MAHER: As I foreshadowed, this is not a set of amendments we felt exceptionally strongly about, but we were keen to have the reasons put on the public record, in Hansard. Given the explanation that has been given, I can indicate that we will not be pursuing those amendments, and I seek leave to withdraw the amendments insofar as I need to withdraw the number of amendments that I moved.

Leave granted; amendments withdrawn.

Clause passed.

Clause 6.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 6, line 28 [clause 6(b)(iii)(B)]—Delete '120' and substitute '90'

Perhaps if it assists, amendment No. 2 also deals with the same issue, so I may just speak to them together. Basically, what these amendments do is reduce the period of time from 120 days down to 90 days before a whistleblower can go to a journalist or to a member of parliament, where they do not receive notification of the outcome of the action taken of their disclosure. It is certainly SA-Best's view that 120 days is too long to receive a response of the outcome of the action to be taken. We note that, especially in some situations, wrongdoing may be of such gravity and urgency that disclosure to a journalist or a parliamentarian is justified and needs to be done in a reasonable time. We consider that 90 days is sufficient and certainly more reasonable than 120 days for a response to be received by the investigating authority of action taken.

The Hon. R.I. LUCAS: The Attorney-General, being a very reasonable minister, is very happy to support the amendments.

The CHAIR: The Hon. Ms Bonaros, can I ask you to move No. 2 as well, and then we will do them together.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–1]—

Page 6, line 30 [clause 6(b)(iii)(B)]—Delete '120' and substitute '90'

Amendments carried; clause as amended passed.

Clause 7 passed.

Clause 8.

The Hon. C. BONAROS: Can I indicate that I will not be moving amendment No. 3 [Bonaros-1] or amendment No. 5 [Bonaros-1] but I will be moving amendment No. 4 [Bonaros-1]. I move:

Amendment No 4 [Bonaros–1]—

Page 8, line 2 [clause 8(1)]—Delete '$10,000 or imprisonment for 1 year' and substitute:

$20,000 or imprisonment for 2 years

The amendment increases the penalty under clause 8 of the bill up to $20,000 or two years' imprisonment in cases where the identity of a whistleblower is knowingly divulged. That is double that currently provided for in the bill. This amendment and, indeed, a number of other amendments which I will be moving are intended to provide some consistency with the penalties covering whistleblower protections in our federal legislation to recognise the severity of divulging that sort of information. In essence, all I am doing is doubling what the government has proposed and that will bring our legislation in line with federal legislation.

The Hon. R.I. LUCAS: Again, the government is prepared to support this particular amendment.

Amendment carried; clause as amended passed.

Clause 9.

The Hon. C. BONAROS: I move:

Amendment No 6 [Bonaros–1]—

Page 8, line 27 [clause 9(5)]—Delete '$10,000' and substitute:

$20,000 or imprisonment for 2 years

Again, the amendment simply increases those penalties for the victimisation offence up to $20,000 and two years' imprisonment, consistent with the previous amendment that I just moved and consistent with federal legislation covering the same issue.

The Hon. R.I. LUCAS: The government is prepared to support this amendment as well.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 7 [Bonaros–1]—

Page 8, line 33 [clause 9(7), definition of detriment, (a)—

Delete paragraph (a) and substitute:

(a) loss or damage (including damage to reputation); or

(aa) injury or harm (including psychological harm); or

The amendment expands the definition of 'detriment' under clause 9 of the bill, consistent with a definition, again, that exists at the commonwealth level in the commonwealth bill. Whilst we note that the list is inclusive and not exhaustive, we are of the view that it is of benefit to broaden the scope of injury, damage or loss, and that is what this amendment aims to do.

The Hon. R.I. LUCAS: There is only a limit to the level of support at the Attorney-General's. In this particular case, the government's position is to oppose this amendment for the following reasons. The government does not support this amendment. The definition of 'detriment' is the same as that contained in the victimisation offence in the Independent Commissioner Against Corruption Act, and the two, in the government's view, should remain consistent due to the similar subject matter and public policy objectives.

Paragraph (a) currently provides that 'detriment' includes injury, loss or damage. This is deliberately broad and does not include further specific examples, so that the court retains a broad discretion to determine what is considered 'detriment' for the purposes of the section. The government considers that the current definition is appropriate. For those reasons, we are opposing this particular amendment.

The Hon. K.J. MAHER: I rise to indicate that on this particular amendment the government will be supporting the SA-Best amendments filed.

The Hon. R.I. Lucas: The opposition.

The Hon. K.J. MAHER: The opposition will be supporting the SA-Best amendments filed. It does not further limit what 'detriment' means. It arguably could broaden what it means. We do not think it does any harm, and for those reasons we will be supporting the amendment.

The Hon. M.C. PARNELL: The Greens too are supporting these amendments. I take what other members have said, that the definitions are inclusive and so we are actually further expanding on what is included. I take the Treasurer's point that we have a battle of consistency here. The Hon. Connie Bonaros wants us to be consistent with the commonwealth laws, and the honourable Treasurer wants us to be consistent with the ICAC legislation.

I have a solution, because the Greens are here to help. We have, just in the last few months, had a standing committee that looked at the ICAC legislation, and the ICAC legislation will be coming back before us, I fully expect, in a very short period of time. That would be, I put to the council, the ideal opportunity to further reform the ICAC legislation to be consistent with the Public Interest Disclosure Bill, if the amendment that looks as if it has the numbers to pass now ultimately finds favour in the lower house. We can make them consistent, but it might require the government having a bit of a look at the ICAC legislation, which I fully expect we will see either before the end of this year or early next year.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 8 [Bonaros–1]—

Page 8, after line 37—After subclause (7) insert:

(8) For the purposes of this section, a threat of reprisal may be—

(a) express or implied; or

(b) conditional or unconditional,

and in any proceedings dealing with an act of victimisation (including proceedings for an offence against subsection (5)) it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

Again, this amendment clarifies 'threat' for the purposes of this section, namely, clause 9—Victimisation. It clarifies that a threat to cause detriment need not be express or unconditional but may also be implied or conditional. In addition, it clarifies that it is not necessary for a person seeking an order to prove that he or she has actually feared that that threat would be carried out. I think the Hon. Mark Parnell has made a very wise suggestion to the council in terms of how we can consider this. Given the last amendment, I would suggest that we also support this amendment. If we need to review these clauses, we can do that if and when the ICAC bill is presented before the council again.

The Hon. K.J. MAHER: The opposition, for similar reasons as previously outlined, will be supporting this and may indeed support the suggestions that have been made to have consistency amongst state acts as well as consistency with federal acts.

The Hon. R.I. LUCAS: For similar reasons, the government is opposing the amendment. As noted in relation to the previous amendment, the victimisation offence in the bill is consistent with the victimisation offence in the Independent Commissioner Against Corruption Act, and the government is of the view that it should remain that way. The government considers that there is no need to be prescriptive in the legislation. It is also unclear how a court would make this determination when there is no need to prove fear that the threat would be carried out.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment as well. In fact, I think the case for this amendment is, if anything, even stronger than the other one that we have just dealt with. Whilst we need to be careful about the evidence that we have, because a lot of it is in the realm of speculation, my guess would be that the sorts of threats are likely to be subtle. They are likely to be couched in terms of, 'You might want to be careful,' or, 'If a certain thing happens, a certain consequence might flow.' They are unlikely to be, 'If you do this, I will do this to you.'

I imagine that in the realm we are talking about—in the public sector, for example—a whistleblower coming forward would be leaned on, initially probably in quite subtle terms, and I think we need to be able to pick up that behaviour. So clarifying that threats can be either expressed or implied and that they can be conditional or unconditional makes sense. It might be said that that is how it would be interpreted anyway, but the Greens' position is: let's just remove the doubt and write these words into the act.

Amendment carried; clause as amended passed.

Clause 10.

The Hon. C. BONAROS: I move:

Amendment No 9 [Bonaros–1]—

Page 9, line 5 [clause 10(1)]—Delete '$10,000' and substitute '$20,000'

This amendment is consistent with previous amendments that I have moved in terms of the increase in penalties sought for false or misleading disclosures.

The Hon. R.I. LUCAS: As outlined previously, the government is prepared to support this amendment.

Amendment carried; clause as amended passed.

Clause 11.

The Hon. C. BONAROS: I move:

Amendment No 10 [Bonaros–1]—

Page 9, line 13—Delete '$10,000' and substitute '$20,000'

This increases the monetary penalties under clause 11 of the bill for preventing or hindering disclosures, again consistent with the other amendments I have moved.

The Hon. R.I. LUCAS: Again, the government supports this particular amendment.

Amendment carried; clause as amended passed.

Clause 12.

The Hon. K.J. MAHER: This clause refers to a 'principal officer'. For the purposes of this section, who is a principal officer?

The Hon. R.I. LUCAS: My advice is as outlined in the definition clause, but it may well be that the honourable member has a more specific question. The definition in the bill indicates that:

principal officer of a public sector agency or of a council means—

(a) in the case of a public sector agency—

(i) if the agency consists of an unincorporated board or committee—the presiding officer; or

(ii) in any other case—

(A) the chief executive officer of the agency; or

(B) if there is no chief executive officer of the agency—a person designated as principal officer of the agency for the purposes of this definition by the responsible minister for the public sector agency;

In those cases the responsible minister, I would imagine, would have to, upon passage of the legislation, designate a principal officer of the agency if there is no CEO of the agency.

The Hon. K.J. MAHER: I thank the Treasurer for his response. In the application of this act to ministerial offices, who is the principal officer for a ministerial office?

The Hon. R.I. LUCAS: We might have to take that on notice. I suspect the answer is probably the minister, but we will have to take advice on that.

The Hon. K.J. MAHER: You can bring back a reply if you like.

The Hon. R.I. LUCAS: I am happy to provide a reply to the member by way of correspondence after the passage of the legislation. The member has been a minister, so I guess the only options are either the minister or the chief of staff to the minister. In terms of the freedom of information legislation, if you have an officer in your ministerial office who is the designated FOI officer, the person to whom you go for internal appeal is the—I do not know what the definition in the FOI Act is—the principal officer or the person in charge of the office, and that is the minister, who responds. If the answer is anything different from that, the Attorney-General will correspond with the Hon. Mr Maher and provide alternative advice, if it is anything different from what my initial suspicions might be.

The Hon. K.J. MAHER: How does the definition of 'principal officer' differ from the definition of 'responsible officer', which we will consider in the next section?

The Hon. R.I. LUCAS: In relation to clauses 12 and 13 of the legislation, clause 12 makes it clear that the principal officer must ensure that one or more officers are designated as responsible officers. Then under clause 13—Duties of responsible officers, those one or two officers must:

(a) receive appropriate disclosures of public interest information relating to the agency or council and ensure compliance with this Act in relation to such disclosures; and

(b) make appropriate recommendations to the principal officer of the agency or council in relation to dealing with such disclosures; and

(c) provide advice to officers and employees of the agency or council in relation to the administration of this Act,

and may carry out any other functions relating to this Act.

In layperson's terms, it sounds like the responsible officers are doing a good chunk of the work, whilst the buck eventually stops on the desk of the principal officer. The responsible officer or officers are receiving disclosures of public interest information, they are ensuring compliance and they make recommendations to the principal officer. The principal officer eventually has to either agree or not agree with the recommendations and make the final decisions. The buck stops with him or her in terms of the final decision. The responsible officer also provides advice to officers and employees of the agency in relation to the administration of the act. It sounds to me like the responsible officers are doing the bulk of the work, whilst ultimately decisions and final recommendations rest with the principal officer.

The Hon. K.J. MAHER: Again, in relation to a minister's office, is it the understanding that the minister would also be the responsible officer?

The Hon. R.I. LUCAS: Again, if it is anything different to what I am about to put on the record or have previously put on the record, the Attorney-General will correspond with the leader, but my best summation would be, if what I said earlier was correct—that is, the minister is the principal officer—the minister would appoint his or her chief of staff or senior adviser as the responsible officer and he or she would do the bulk of the work as outlined here as the duties of the responsible officer, make recommendations to the principal officer—if I am correct, that is to the minister—and he or she would make the decision.

In the alternative, if the principal officer was the chief of staff, it would be a little bit confusing then. You would have the chief of staff potentially appointing more junior level advisers, I guess, within the minister's office or the office manager or somebody as being the responsible officer. My best guest is that, on reflection, what I have just put on my record might be a reasonably accurate summation of how it would work in relation to a minister's office. If it is not, the Attorney-General will correspond with the leader and clarify the response I have put on the record.

The Hon. K.J. MAHER: Just for the sake of clarity, is it the case that this act applies to ministerial officers?

The Hon. R.I. LUCAS: Again, we will take that on notice. My advice is we understand that it does. But if it does not—I cannot see immediately where it is excluded—we will advise the leader.

The Hon. K.J. MAHER: We are not certain that it does, but we think it does because we cannot find anywhere that it says it does not. Is that a fair summation?

The Hon. R.I. LUCAS: My current advice is that that is the case. We understand that is the case. I am pleased to advise that my advice is that it is absolute. It does apply to a minister because the definition of public sector agency does include a minister.

Clause passed.

Clauses 13 and 14 passed.

New clause 14A.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–2]—

Page 10, after line 21—Insert:

14A—Minister may make ex gratia payments

The Minister has an absolute discretion to make an ex gratia payment to a person who makes an appropriate disclosure of public interest information as a reward for making the disclosure.

I am not sure that my smooth sailing through this debate is about to continue any further, but I move the amendment standing in my name. This amendment provides the ability for 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.

As I pointed out during my second reading contribution, it is our party's position that the concept of a reward scheme or a bounty scheme aimed at encouraging public interest disclosure whilst also minimising the risks associated with such disclosure is beneficial. These sorts of schemes exist in Canada and the US and they have worked in those jurisdictions with great effect, mainly because, as Senator Whish-Wilson pointed out at a federal level, they encourage disclosure.

The reality is that offering legal protection to someone who has knowledge of corruption or misconduct to come forward and risk their livelihood is not always enough. Providing an avenue for litigation can prove costly and very traumatic.

For the record, it is worth noting that in January this year, when we announced this policy, specifically the proposal for a reward scheme, the then leader of the opposition, Steven Marshall, stated in the media that his party had adopted a policy years ago of paying whistleblowers. It is also important to bear in mind that such a scheme generally operates as the exception rather than the rule.

The proposal for such a scheme has been criticised as potentially resulting in public servants embellishing accounts of wrongdoing for financial gain—in other words, chequebook journalism. However, this has not been the situation in the US or Canada, and I do not expect it would be the case here. These sorts of arguments serve only to undermine the significant personal and sometimes career-ending sacrifice made by people who make disclosures when facing these sorts of situations. It is not a decision that anyone could make lightly.

I am sure we will hear the argument that public servants are already legally bound to make these sorts of disclosures and that, therefore, these changes only serve to undermine those responsibilities by incentivising disclosure. That is a very simplistic argument that completely ignores the risks associated with the disclosure of information that is very much in the public interest. That is what we are dealing with here and what is at the core of the issue: public interest disclosure.

I acknowledge that Australia is a very different jurisdiction to the US and Canada, which I have pointed to as examples of where this works well, but I do not think that is, in and of itself, a reason to preclude us from considering a reward or bounty scheme. As highlighted by Professor A.J. Brown, a highly regarded expert in this field and a professor of public policy and law for the Centre for Governance and Public Policy at Griffith University, during the federal senate inquiry on this very issue, these sorts of issues could be easily overcome by establishing principles suitable to Australia to govern such a scheme.

Senator Patrick, one of our federal colleagues, said it well when he said, in his dissenting report to the 2018 federal inquiry:

Whistleblowers aren't always good people; but more often than not they are the best people. They do what they do with integrity and courage and at great risk to themselves.

As Jeff Morris, a whistleblower and hero, stated to the committee:

'The first thing I'd like to convey is that whistleblowers are human beings. They're human beings taking on massive corporate machines, and it's a very unequal contest. It's the classic case of flesh against steel, and it almost always ends badly. Whistleblowers' health suffers; their finances and their family suffer.'

SA-Best agrees with our federal colleague Senator Patrick that we should recognise and protect whistleblowers as much as possible with strong and unambiguous laws. Anything less would be a lost opportunity.

The Hon. R.I. LUCAS: As the honourable member accurately predicted, the wonderful level of agreement between the government and SA-Best in terms of some of its amendments ends in relation to this particular amendment and its companion amendment. The government opposes this amendment for the following reasons.

The government understands that the purpose of these amendments is to allow for a reward scheme or bounty system whereby a person receives a monetary reward for their disclosure. This appears to be based on recommendations from the Parliamentary Joint Committee on Corporations and Financial Services' September 2017 report, which recommended the introduction of a reward system or bounties for eligible whistleblowers.

The government notes that the commonwealth government introduced a bill in December 2017 to address some of the recommendations of this report; however, notably, the introduction of a reward scheme was not included. It also appears that no jurisdiction in Australia allows for such a scheme as the one being proposed here.

The government does not believe that the practical considerations of such a scheme have been adequately considered. The inclusion of such a provision, despite it stating that the ex gratia payments are at the absolute discretion of the minister, will create an expectation that people will receive a financial reward for coming forward. This could well have a counterproductive effect, as people may be unwilling to come forward unless there is a monetary reward available, or it may encourage reporting that falls short of the requirements for a public interest disclosure, but that will still require consideration by the relevant authority, due to a desire to receive a reward.

The government also wonders where the money to fund such scheme would come from. Including a provision for ex gratia payments to be made without any idea of how they will be funded or any parameters around when such payments might be considered and who would be eligible will create significant practical difficulties in implementation. The government considers that the current provisions of the bill are adequate and appropriate, and it does not support a proposal for a rewards scheme for the reasons outlined.

The Hon. M.C. PARNELL: First of all, I thank the Hon. Connie Bonaros for splitting her two amendments, because the Greens found favour with the first but the second not so much. This is an important provision. I would also like to acknowledge the support of the Attorney-General's office. One thing that we have noticed on the crossbench under the new regime is that there is, I think, a willingness on the part of the Attorney to engage with crossbench members about amendments as they are filed rather than us only finding out on the day what the position might be.

So we were aware that the government was not going to be supporting this amendment. The arguments they put forward were reasonable, but at the end of the day I think there is a greater priority before us, and that is to properly recognise whistleblowers and to also recognise the toll that whistleblowing can pay on the individual.

The Treasurer referred to the Parliamentary Joint Committee on Corporations and Financial Services' report on whistleblower protections from September last year. That is not the only time the federal parliament has looked at this. They looked at it again this year. The Senate standing committee on economics had a look at the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017. As the Hon. Connie Bonaros alluded to, my federal colleague Senator Peter Whish-Wilson from Tasmania put in not a dissenting report but additional comments, which is the polite way they phrase these things sometimes in the Senate.

I will quote a couple of sentences, because I think it is important. Under the heading of 'Whistleblower reward', Senator Whish-Wilson says:

Offering legal protections is often not enough for someone who has knowledge of fraudulent activities to come forwards with information and risk their financial security, job security and mental health. One of the most important and progressive recommendations of the Parliamentary Joint Committee was to introduce a reward scheme for whistleblowers (Recommendations 11.1 & 11.2) to encourage people to expose misconduct and enable tax authorities to reclaim money.

This is not a radical idea. The US False Claims Act was passed in 1863. It now allows whistleblowers to receive up to 30 per cent of reclaimed money that has been stolen or avoided from government authorities. In 2015, 80 per cent of the around $3.5 billion recovered by US Justice Department was a result of actions taken by whistleblowers.

So 80 per cent of $3.5 billion was thanks to whistleblowers. Senator Whish-Wilson goes on:

Rewards work. They encourage disclosure. They recover ill-gotten gains. And they help compensate whistleblowers. The Australia Greens support the implementation of the recommendations of the Parliamentary Joint Committee in relation to rewards.

It then goes on—I will not read it all—but the key words are that the rewards should be 'determined within such body's'—in this case the ministers—'absolute discretion'. The recommendations go on to list the sorts of things that will be taken into account by a minister in exercising that discretion but, at the end of the day, we think that it is worth pursuing.

I note the Treasurer's comments, which were similar to those provided to us by the Attorney-General, that you can end up with perverse incentives. I would not see that happening. I would have difficulty seeing someone wanting to move their job into the lucrative area of catching crooks in the Public Service with an expectation of reward. I think that we keep it as absolute discretion; therefore, no-one has any expectation and they do not have any enforceable right. Whether they get any money will depend a lot on their behaviour.

One of the factors that will be taken into account is whether they did things properly through the system as opposed to someone who, as we have been discussing, went straight to a journalist rather than going through the system properly. That might impact on whether they get a reward. At the end of the day, the Greens think that this is a worthwhile amendment and we are pleased to support it.

The Hon. K.J. MAHER: I thank SA-Best for bringing this amendment to the chamber. We have been pleased to vote in favour of every amendment that SA-Best has moved on this bill to date. However, on this one, and I indicate on the next one, the opposition caucus has made a decision not to support the amendments.

In relation to the one that we are currently debating, there is already an absolute discretion to make an ex gratia payment. That is the very definition of what an ex gratia payment is. When we discussed this, the opposition felt that the scheme, in terms of the Public Interest Disclosure Bill, provides that protection for whistleblowers and it was not necessary to create that extra incentive—although it says 'absolute discretion'—in the hope or, as these things tend to evolve, the expectation of monetary reward.

New clause negatived.

New clause 14B.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–2]—

Page 10, before line 22—Insert:

14B—Payment of expenses etc

The Minister must ensure that a person who makes an appropriate disclosure of public interest information is reimbursed for any reasonable expenses incurred by the person (including any loss of wages) in connection with making that disclosure if—

(a) the truth of the information disclosed has been established; and

(b) the person makes a claim to the Minister for reimbursement of the expenses and provides such proof of the expenses as the Minister may require.

The amendment provides for the minister to reimburse a whistleblower for reasonable expenses incurred in making the disclosure, regardless of whether a detriment was suffered as a means of recognising any reasonable expenses that they would ordinarily expend in the making of such a disclosure.

The amendment has changed to ensure that those sorts of payments are limited to cases where the expenses were incurred by the person in connection with the making of the disclosure, if the truth of the information has been established and if the person making a claim to the minister for reimbursement of the expenses provides any proof of those claims if required by the minister. I am disappointed that the previous amendment did not get up in relation to ex gratia payments.

If anything, I will respond to something that the opposition said in relation to the incentive. That would have put it at the forefront of people's minds that this is something that they can explore, even in terms of an ex gratia payment. If we are not going to go down the path of having that sort of reward scheme then I would say that the least we can do is to reimburse people. If they have had to take time off from their jobs—I do not know what sorts of expenses they may have incurred but there would be a list there of the sorts of things that they could incur, and taking time off work would be the most likely one—there is no reason why they ought not be reimbursed for those expenses, particularly where those expenses are the result of lost wages.

I think I know which way this amendment is going but, again, for the record, I indicate that I think at the very least this is what we ought to be doing to ensure that people are not left out of pocket for making disclosures that are in the public interest.

The Hon. R.I. LUCAS: The honourable member has accurately predicted the position of the government, and that is that the government is opposing the amendment for the following reason. This is a variation on the 14A amendment that has already been defeated and the government notes that expenses will only be paid if the truth of the information disclosed is established and the person makes a claim for reimbursement and provides proof to the satisfaction of the minister. This amendment remains problematic. It would require the government to reimburse a person who makes an appropriate disclosure of public interest information for any reasonable expenses incurred by that person. The provision proffers no guidance in what might be considered reasonable expenses and, again, does not say where the money for this measure would come from.

The government considers that the current provisions of the bill are adequate and appropriate. If an informant has suffered detriment as a result of their disclosure under the act, clause 9 of the bill provides that an act of victimisation may be dealt with as a tort or as if it were an act of victimisation under the Equal Opportunity Act 1984. For those reasons, the government is opposing this amendment as well.

The Hon. K.J. MAHER: For similar reasons as the government, I can indicate that the opposition will be opposing this amendment. However, I want to place on the record my thanks to the Hon. Connie Bonaros, who spent some considerable time working with the opposition on the amendments and, although we are opposing the amendment, it is much closer to something that we could have supported than as the amendment was originally drafted. Although we are not supporting it on this occasion we understand the intention and thank the honourable member for the work that she has done in making this amendment close to something that we can almost support.

The Hon. M.C. PARNELL: As I alluded to before, the Greens will not support this particular amendment but, similar to the Hon. Connie Bonaros, we are disappointed that the previous one did not get up because it would have actually in some ways covered this field anyway. It is hard to put your mind to what the reasonable expenses might be that would be incurred. One that I imagined was a bundle of papers that a person in a branch office just had to get on to the CEO's desk and there was no other way of doing it but fly from their branch office to the headquarters to physically hand over the incriminating information, and there would be an airfare included and maybe some days off work.

My feeling would be that if ex gratia payments—whilst we have not legislated for them—are still available, by the nature of being ex gratia they can just be done without a legislative basis. I would be pretty disappointed if a person who had gone to great personal expense and risk and had receipts, did not at least get paid back for their great help. They may have recovered millions upon millions for state revenues and I would be very disappointed if they were left in the lurch and out of pocket.

Whilst the difficulty with the amendment as drafted is that it used the word 'must'—they must be reimbursed—you would end up with difficulties such as someone having a legally enforceable right; you would have an argument over which were the reasonable expenses. It was a good attempt, I think, to cover an important topic, and I just hope that despite the failure of both these two new insertions into the bill that the government will have regard to the assistance that is provided to them by whistleblowers and will not be leaving people in the lurch and will at least be compensating them for their reasonable expenses and hopefully, as well, if the case requires it, reward them for their civic duty too.

New clause negatived.

Remaining clauses (15 and 16), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:40): 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