Page 2212 - Week 07 - Thursday, 27 August 2020
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referred or not to the Integrity Commission. There is potential, albeit small, for this process to create a conflict of interest. There is potential for retaliatory action to be taken against the discloser before the matter gets into the hands of the Integrity Commission.
There should be a provision requiring the disclosure officer, in cases where there is an actual, potential or perceived conflict of interest, to send the disclosure directly to the Integrity Commission without first deciding the reasonable grounds, or perhaps with a statement about their opinion on whether the disclosure was made on reasonable grounds. This is a matter that should be considered in the review process contained in the bill.
There are other matters that could be included in the 2020 review process as well. The measures in the bill that are designed to protect the discloser still do not prevent under-the-counter retaliatory action, such as passive bullying. The review should consider making these measures stronger.
Proposed new section 20 should be reviewed to determine if the provisions allowing an investigating entity to end an investigation are working as intended. Section 20(2)(d) especially leaves open the way for quite loose and subjective decision-making.
In its reports numbered 40, 41, and 44, the Assembly’s legislative scrutiny committee expressed the view that decisions of the Integrity Commissioner on whether a disclosure is or is not a public interest disclosure should be reviewable. The committee is of the view that such decisions are different to decisions under the integrity act, but the government disagrees. The uncertainty about this issue warrants it being reviewed in 2022.
Another area for review, or potential review, is the definition and exclusion of personal work-related issues. The examples listed in proposed replacement section 8(2) exclude a decision related to the employment, transfer or promotion of a person. There have been significant PIDs related to employment and promotion, including the recruitment of a senior official in the Canberra Hospital, that I have spoken of in the past. In that case the person making the disclosure did not stand to make any personal gain, so it is not clear whether such a disclosure qualifies for a PID under the current provisions of this bill.
Part 7 of the bill provides absolute privilege to a discloser when a disclosure is declared to be a PID. That protection, however, does not apply if the Integrity Commission decides that the disclosure is not a PID. That then raises the issue of whether the discloser faces a risk of action for damages by making the disclosure in good faith in the first place. This matter also needs to be reviewed.
This bill makes quite a deal of progress in making the public interest disclosure system more effective. For too long, people who have made disclosures have themselves become victims. For too long, the system has been used to protect rather than investigate. And for too long every excuse possible has been used to avoid, delay or even refuse investigations. However, it is the view of the opposition that this bill
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