Page 4735 - Week 15 - Wednesday, 7 December 1994
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Clause 34
MS FOLLETT (Chief Minister and Treasurer) (5.12): Madam Speaker, I move:
Page 16, line 7, subclause (3), omit "absolute", substitute "qualified".
It is a simple amendment. I move this amendment in light of information and findings in the report on the review of Commonwealth criminal law, the Gibbs committee report. That report has been very thorough in its examination of whistleblower legislation. It recommended repeatedly that the protection offered by absolute privilege not be granted to whistleblowers, because it appears to allow that anybody who is defamed in the course of a disclosure cannot then seek damages. While there is a penalty in the legislation that is before us for making a deliberately false statement, it does appear that the victim of any such defamation actually would be powerless to pursue the matter in the courts, without the amendment which I have moved. I do commend that amendment to the Assembly. It is based on a very large body of work and a very well considered view of whistleblower legislation.
I know that all the amendments that Mrs Carnell has moved make the provisions in the legislation now before us as close as is humanly possible to the provisions in the legislation that was previously passed on whistleblowers - the Public Sector Management Act. However, I do not believe that we should overlook this matter. We must try to protect innocent people from false accusations, which may occur from time to time, and allow them recourse to the law if that should become necessary.
MRS CARNELL (Leader of the Opposition) (5.14): Madam Speaker, the Opposition will be supporting the Chief Minister's amendment, although there were actually quite good reasons for having "absolute" in the Bill to ensure that people were not in any way scared off making a disclosure at any stage. But we do accept the Chief Minister's views on this and the evidence that she has provided. We certainly will be keeping an eye on it. Under this legislation, disclosure to the press is not acceptable. The absolute privilege would occur only if the person who was blowing the whistle did so through appropriate channels. It certainly would not be through the media. Even so, we will accept the amendment as it stands.
MS FOLLETT (Chief Minister and Treasurer) (5.15): Madam Speaker, I have one final matter. Mrs Carnell, in her approach to whistleblowers, has probably been wrongly informed, perhaps by an examination of the American system of public administration. It is the case that in the ACT we have the protection within law that is provided by grievance provisions, disciplinary provisions, the Merit Protection and Review Agency, and so on; all of which operate on a qualified privilege basis. It is a very different position that we find ourselves in, with the merit based public service, than occurs, say, in the United States, where they have a system purely of political appointments, political preference and, of course, political patronage in their public service. Whilst I acknowledge that Mrs Carnell will accept this amendment, her whole thinking about whistleblower provisions is epitomised in this section of the legislation. It is a faulty understanding of the issue as it applies in this Territory.
Amendment agreed to.
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