Page 2211 - Week 07 - Thursday, 27 August 2020
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The bill will introduce a new definition of “disclosable conduct” to include maladministration or substantial and specific danger to public health or safety, or the environment. The new definition will exclude personal work-related grievances and will make the assessment of maladministration more objective and less subjective.
A key element of this bill is that all complaints, once they are determined to be a disclosure, will be funnelled through the Integrity Commission. The commission will decide whether a disclosure is a public interest disclosure or not; and, if so, whether the commission should investigate it, refer it to another entity for investigation or dismiss it. The ability of an investigating entity to refuse to investigate a matter will be quite limited. The Integrity Commission will have the power to prevent and remedy retaliatory action against disclosers and provide protection for witnesses.
There is a clause requiring a review of the PID Act and the Integrity Commission Act together, and a report to the Assembly. The first review starts after 1 December 2022 and will then be every five years.
This bill is the result of recommendations from two Assembly inquiries into the establishment of the Integrity Commission and a motion from the Canberra Liberals calling for a review of the public interest disclosure legislation. The Canberra Liberals made a submission to that review. I am pleased that much of the spirit of what was said in the submission is reflected in this bill.
The bill wants the process to look like this: a person discloses disclosable conduct to someone. It ends up in the hands of a disclosure officer. The disclosure officer decides whether the disclosure is made on reasonable grounds. If so, it goes to the Integrity Commission, unless the disclosure is about the commissioner. The commissioner decides, against some legislative tests, including a public interest test, whether this is a public interest disclosure. The commissioner investigates it, refers it to a nominated entity for investigation or dismisses it.
Unless the disclosure is made anonymously, which is acceptable, the discloser is kept informed as to what is happening at each step of the process and, in any case, at least once every three months. The Integrity Commissioner is not immune from being subject to the PID, and the bill sets out a path to be followed in this case.
In the briefing I took, for which I thank the Chief Minister, I pointed out what I saw as some flaws or shortcomings in the bill. I am pleased that two of these issues are picked up in the amendments that the government will put forward in the detail stage. I will address both of those issues then.
For now, I want to say that the bill does improve the process. Importantly, it improves the protection for disclosers and witnesses. To some extent, at least, it improves the independence and confidentiality of disclosers.
Where it fundamentally falls short is in the initial process. Whilst disclosures can be made directly to the Integrity Commission, it is generally expected that they would pass through the process with a disclosure officer within an agency before they are
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