Page 1400 - Week 05 - Wednesday, 11 May 1994
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The Bill before us today deals with dishonest and corrupt conduct or partiality in the performance of a public servant or a unit. It also deals with conduct of an official or unit which amounts to a breach of trust. That goes further than the Follett Bill. It enables investigation of misuse of information acquired in the performance of official duties by public officials. The onus in the Carnell Bill is on honesty. Conduct by public officials should always be able to be challenged openly and legally where it is suspected that the conduct is dishonest, not just illegal. Clearly, the Government has a different view of that matter. The Public Interest Disclosure Bill goes considerably further. It allows the investigation of any matters which constitute criminal conduct or conduct normally open to disciplinary action. It allows the investigation of conduct which is normally reasonable grounds for terminating the services of a public official. It allows the investigation of wastage of public money where that money is not specifically being used to give effect to a law of the Territory - not just, as the Chief Minister's Bill puts it, a gross waste of public funds. It also allows investigation of risks to public health and safety - not necessarily a substantial danger to public health and safety.
I think it is quite wrong to suggest that the Government Bill is comprehensive and complete. I want to deal with one particular aspect of the Bill before us today to illustrate that point. This is the area of unlawful reprisals against those who take advantage of the provisions of this legislation. "Unlawful reprisal" is defined in the Public Interest Disclosure Bill. It is conduct which causes or threatens to cause injury, loss, damage, intimidation, harassment, discrimination, disadvantage or adverse treatment in relation to a career, profession, employment, trade or business of a person who has made a public interest disclosure. We all know that the extent of threatened or actual reprisals in the public service is a factor.
Mr Stevenson referred to the fact that whistleblowers do not as a rule tend to remain in their positions for long after they have disclosed matters, particularly into the public arena. It is obvious that you therefore have to provide very strong protection for public servants and others in circumstances where they might face those reprisals. It is essential that those protections be there. The history of whistleblowing in this country demonstrates that if you do not have the protections there you are going to cut down the number of people who will bring these sorts of matters to the attention of superiors where it might cost them in terms of their job or some other interest.
The Public Interest Disclosure Bill establishes a provision for a person subjected to unlawful reprisals to claim civil damages from a person engaging in such conduct and allows the subject of that reprisal, or the Ombudsman on that person's behalf, to seek an injunction to prevent unlawful reprisals occurring. That is a very significant difference between these two Bills. Another significant difference is in the area of how false complaints are handled. The Public Sector Management Bill contains no provisions at all about this. I assume that either it has been overlooked or it is not intended that there be any provisions dealing with this - to leave the matter, again, uncertain for those who might seek to use the provisions. Presumably an officer might open himself or herself up to disciplinary action under normal public sector guidelines otherwise. Clause 33 of the Public Interest Disclosure Bill establishes a penalty of up to $10,000 or one year's imprisonment, or both, for people knowingly or recklessly making false or misleading declarations.
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