Page 1399 - Week 05 - Wednesday, 11 May 1994
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The provisions of this Bill, I think, are vastly superior to those of the Public Sector Management Bill. There are clear signs in the Public Sector Management Bill that the provisions dealing with whistleblowing have been inserted as an afterthought. We heard the comments from our "Shoot first, ask questions later" Attorney-General to the effect that we do not need whistleblowing protection in the ACT. We now see that the Government has brought those sorts of things forward, but you have to ask yourself why. Is it because they actually believe in the principle, or is it because they realised that the numbers were there to get this legislation through anyway and it was better, therefore, to put their own provisions forward in the hope that they could prevent things happening which would not be in the interests of a party that might see itself as an entrenched government? I think that is very true.
To give an illustration of what I am talking about, paragraphs 236(a) and (b) and subclause 237(1) of the Follett Bill, which are the provisions that say what sort of information should be disclosable, talk about information that relates to an indictable offence, gross mismanagement or waste of public funds, or a substantial danger to public health or safety. Let us look at the adjectives in each of those three matters. There is reference to an indictable offence; therefore summary offences are not included. If someone in a department is committing a summary offence - and there can be quite serious summary offences - bringing that matter to public attention or to the attention of other people is not protected by the Follett legislation.
Next, there is gross mismanagement or waste of public funds. That is a very ambiguous phrase, or at least it is open to some interpretation. What might be gross to me might not be gross to somebody else. I could say with some certainty that what I might consider to be gross would probably not be considered gross by the Minister of the department responsible, who would generally want to defend the action of his own public servants or of individuals acting potentially in the interests of the Government. To leave that expression there - "gross mismanagement or gross waste of public funds" - necessarily adds to uncertainty. The Chief Minister said when she responded to this Bill that she wants the public servants covered by this Bill to know what the provisions mean. With great respect, it is impossible for any plain English language to define what "gross mismanagement or gross waste of public funds" means. On the same standard, we have "a substantial danger to public health or safety". What is a substantial danger? Is it one that threatens imminent loss of life or imminent injury, or is it something less than that?
The Government's provisions are fairly restrictive and would make it difficult for a person contemplating speaking out to be sure where they stand, and that is the central flaw in the Follett legislation. The Chief Minister said that her Bill seeks to deal with suspected maladministration or corruption. With great respect, corruption and maladministration are only part of the questions we are considering here. She certainly tried to paint the Public Sector Management Bill as more friendly to whistleblowers. This was at the same time as she commented that the Carnell Bill was both more restrictive and more open than her own Bill. I do not quite understand how it can be both, but I reject the suggestion that the Government's Bill is more friendly. In fact, we see here in the Carnell version a Bill which will be more favourable to those who believe sincerely that there is a case to be made for public benefit.
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