Page 3369 - Week 08 - Thursday, 23 August 2012
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government accountability more generally, graciously provided substantial comments on both the exposure draft and further refinements made to the bill prior to it being presented in June. It was invaluable to have his and his team’s input and has led to comments that this bill achieves a high-water mark in the history of whistleblowing laws in this country. That should reassure members that what we have before us today will be a significant improvement on what is currently in place and sets a new benchmark in terms of public interest disclosure laws in Australia. This is something the Assembly and our jurisdiction should be very proud of.
The PID bill is broken into 10 parts. The first deals with preliminary material common to most bills we see here in the Assembly and, most importantly, defines the object of the act, which is to provide a way for people to make public interest disclosures, to ensure people who make a disclosure are treated respectfully and are offered protection if things go wrong, to establish a mechanism through which disclosures are investigated and dealt with, and to ensure that those involved in public interest disclosures are treated appropriately and have the opportunity to have their case heard.
The second part of the bill establishes the fundamental concepts central to the effective operation of the scheme. It defines the terms “public interest disclosure”, “disclosable conduct”, “public sector entity” and related terms. This part also establishes a two-tiered—subjective and objective—test for when a complaint or feedback might fall in the category of public interest disclosure. The first tier, the subjective component, caters for what might be called traditional or intentional whistleblowing. The subjective test is invoked if a person making a disclosure believes that their information tends to show disclosable conduct. In other words, if a person has a reasonable belief that someone is acting unlawfully, is wasting public funds, is corrupt or is in some other way acting dishonestly, misusing information, breaching public trust or acting partially, then the information brought to light should be investigated as a PID and the person offered protection under the act.
The second tier of the test contained in part 2 of the bill has been called the objective test and it rests on the idea that a person may not realise the information they have falls into the category of whistleblowing, but that this should not matter. In other words, when someone passes on information that reveals disclosable conduct then the matter must be acted upon as a PID, regardless of the person’s intention in passing on the information. A person’s belief and motivation for bringing the matter to light is irrelevant under the bill. There is an onus on those in receipt of the information to treat it as a PID so long as there is a public interest element to the claim. The point is that where there is a genuine issue being brought to light that warrants being considered as a public interest disclosure, it is the information that is important, not the way in which it surfaces.
Part 3 of the bill explains the “who”, the “to whom” and “how” aspects, or the jurisdictional limits of the scheme. As with the old scheme, anyone is able to make a PID under the new legislation. Additionally, there is a prescribed role of “disclosure officer” under the new scheme. This may be a designated position; however, an individual’s supervisor, the head of a public sector entity, the head of service, the commissioner, the Auditor-General, an MLA, members of governing boards and other
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