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15 Feb 2017

Public Interest Disclosure Bill – Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I will set the scene for the amendments before we progress through the clauses of the bill. The Liberal Party articulated its position at the second reading, but since we have had the summer sojourn over Christmas, I thought I would revisit it for the benefit of members. These amendments have been crafted based on the recommendation of the ICAC. They have not been developed as a result of a view taken by the party on its own journey. The amendments have been drafted to reflect the specific requirements of the commissioner.

In relation to the first amendment, which inserts the word ‘journalist’ and allows a member of the public, after certain hurdles have been overcome, to speak to a journalist in their role as a whistleblower, I should say that in a recent hearing of the committee on crime and public integrity, I raised the matter again with the commissioner, and he affirmed that it was his preference that a whistleblower have the ability to go to the media in these circumstances.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

P age 6, line 10 [clause 6(a)]—After ‘information to a’ insert ‘ journalist or a ‘

This is a simple amendment, technically. It inserts the word ‘journalist’ so that, after a person has exhausted the other avenues set out in clause 6, they can in those circumstances speak to a member of the media.

The Hon. M.C. PARNELL: I was going to hear the government’s response, but the Greens’ position is that we support this amendment to include the reference to journalists.

The Hon. P. MALINAUSKAS: The government opposes this amendment. The bill provides for circumstances where an appropriate disclosure may be made to someone other than a relevant authority and contains a clear guide as to reporting of appropriate disclosures. It also provides a thorough regime for dealing with appropriate disclosures, including a duty to act on the information received as soon as practicable. That will ensure that matters are effectively and properly dealt with. The government is confident that the bill will operate effectively without this amendment.

The Hon. D.G.E. HOOD: Family First rises to indicate its support for the amendment. I think we have all seen circumstances where the official channels have not provided adequate recourse for individuals in certain circumstances, and they have had to resort to going to programs like Today Tonight, the Leon Byner program, Matt and Dave, etc., and the various news stations, which have proven to be effective in finally bringing light to the issue.

It is unreasonable and not appropriate for us to completely close that channel. It should be open as a last resort, as I believe the amendment dictates. After the other criteria have been met, it becomes an option then and only then. For that reason, Family First will support the Liberal amendment.

The Hon. J.A. DARLEY: I indicate that I will be supporting the amendment.

The committee divided on the amendment:

Ayes 12

Noes 5

Majority 7

Amendment thus carried; clause as amended passed.

Clauses 7 and 8 passed.

Clause 9.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

P age 8, after line 16—After subclause (3) insert:

(3a) Subject to this section (and without derogating from any other law imposing vicarious liability on a person for the acts and omissions of agents or employees of the person), the Crown is, for the purposes of this Act, vicariously liable for an act of victimisation by an agent or employee of a public sector agency committed while acting in the course of their agency or employment.

(3b) In proceedings brought against the Crown, in accordance with this section, in respect of an alleged act of victimisation by an agent or employee of a public sector agency, it is a defence to prove that the principal officer of the public sector agency took reasonable steps to ensure that the agent or employee would not act in contravention of this Act.

(3c) Without limiting subsection (3b), a defence is established under that subsection in relation to an alleged act of victimisation by an agent or employee of a public sector agency if the principal officer—

(a) had complied with section 12 and, in particular, had ensured that the document required under section 12(4) had been prepared and was being maintained at the relevant time; and

(b) had taken reasonable steps to implement and enforce that document, including by—

(i) taking reasonable steps to make the employees and agents of the public sector agency aware of the requirements under the document; and

(ii) ensuring that action required under the document was taken promptly and in an appropriate manner.

I alert the chamber to the fact that amendment No. 3 is consequential. The purpose of this amendment is purely technical. It follows on from a recommendation from the ICAC that the state, or in effect the Crown, has vicarious liability for an act of victimisation. Clause 9 as currently drafted is very much referring to the person, when it comes to victimisation. This is a critical incentive for the state to ensure that whistleblowers are allowed to advise the relevant parties of what they have discovered for the benefit of the state as a whole.

This, again, has been drafted with the advice of parliamentary counsel in response to the ICAC recommendation. In essence, it imposes the burden on the Crown itself—and, therefore, the state—but also, importantly, it sets out a technical defence. It is not unreasonable. If those public servants, or those who act for the Crown, follow the necessary steps in (3c) of the amendment, then they will have a defence. It has been drafted so that it is not capricious in nature and actually delivers a stepping stone for those who wish to have a defence to a charge of victimisation.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment. If we think about what happens when the state is not vicariously liable, we find ourselves some decades ahead apologising for the bad things that the state did. We have apologised for stealing Aboriginal children from their families. We have apologised for the victimisation of people in same-sex relationships who were prosecuted and discriminated against in earlier years.

This amendment, I think, is sensible. It imposes a vicarious liability on the Crown for acts of victimisation, but it also allows for a reasonable defence if the Crown has in fact put in place guidelines and crown officers have acted responsibly in accordance with them. I think this does make sense. We are comforted by the fact that it does come from ICAC rather than from another source, so it is an authoritative source. It is largely technical in nature, but I think it provides an important additional protection for whistleblowers, bearing in mind that, whilst this bill is entitled the Public Interest Disclosure Bill, it really is just a renamed and rebadged whistleblowers’ protection act and the Greens are keen to support whistleblowers.

The Hon. P. MALINAUSKAS: The government opposes the amendment to this bill but is happy to revisit the proposal at a later time, along with the opposition’s subsequent amendments Nos 3 and 4. The proposed amendment would result in different victimisation provisions in this bill and the ICAC bill. Clearly, that is not an ideal situation. Further, there are already provisions in other acts that deal with crown liability and employer liability.

The Hon. A.L. McLACHLAN: Thank you for that response. The Liberal Party does not find it persuasive. It takes the view that this bill is currently before us at this time, and if there are alignment and consistency issues, then they can be addressed in subsequent bills both to the other acts or this bill can be revisited.

The Hon. D.G.E. HOOD: I indicate that we will also be supporting the amendment.

The Hon. J.A. DARLEY: I will be supporting the amendment.

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 3 [McLachlan–1]—

P age 8, line 17 [clause 9(4)]—After ‘a person’ insert ‘ (not being the Crown) ‘

This amendment is consequential.

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 4 [McLachlan–1]—

P age 8, after line 23—After subclause (5) insert:

(5a) A person who has made or who intends to make an appropriate disclosure of public interest information and who reasonably suspects that they will be subject to an act of victimisation by another person (therespondent ) may apply to the Equal Opportunity Tribunal for an order requiring that the respondent refrain from the relevant act.

(5b) An order of the Equal Opportunity Tribunal under subsection (5a) is enforceable, and may be appealed against, as if it were an order of the Tribunal under section 96(1) of the Equal Opportunity Act 1984 .

This amendment again comes from the recommendation of ICAC. It allows for applying to the Equal Opportunity Tribunal for an order requiring a respondent to refrain. We think this is an important trigger. It is difficult to know how often it will be used if it passes with favour via the amendment to this chamber. We think it is an important amendment. It gives options for the individual where they may be experiencing very difficult sets of circumstances. We are keen to ensure that the full suite of amendments correspond with the report of the ICAC.

The Hon. P. MALINAUSKAS: The government is not opposed to the intent of this amendment but does not agree that the Equal Opportunity Tribunal is the appropriate jurisdiction for these applications. I note that the Independent Commissioner Against Corruption expressed at page 135 of his report on the review of the Whistleblowers Protection Act 1993 that the District Court, which has the power to make injunctions within its civil jurisdiction, may be the best placed court to hear these applications. That is an appropriate comment, given the risk of injustice that an injunction of this nature carries.

However, as we are developing the jurisdiction of the South Australian Employment Tribunal, which could be an appropriate and cost-effective jurisdiction in which to hear such matters, it would be prudent to reconsider the amendment at a time when it is possible for the Employment Tribunal to take on such applications. On this basis, the government opposes the amendment.

The Hon. M.C. PARNELL: The Greens will be supporting the amendment. It seems to be a sensible addition to the suite of measures to protect whistleblowers. It is not that hard to imagine a situation where a person, who is about to blow the whistle as it were, quite reasonably suspects that within minutes they are going to get the sack, and this gives them the ability, in a peremptory manner, to go to the Equal Opportunity Tribunal to effectively get an injunction.

The minister referred to the consequences of the risk of an injunction as being serious. I do not think they are. The injunction is going to be, ‘Don’t discriminate against this person. Don’t sack them.’ I hardly think that that is going to bring the state of South Australia to its knees, so I think it is appropriate that we put this in. If the minister wants to have a think about whether there is some part of District Court procedures that would deal with these cases expeditiously, then we could look at that later, but for now I think it is appropriate to pass the amendment as drafted. The Greens will be supporting it.

The Hon. D.G.E. HOOD: Family First is not persuaded by this amendment. I think the government’s position is one that we are inclined to support which is that the Equal Opportunity Commission is not the appropriate place for such a venture to unfold and for that reason we will not be supporting it.

The Hon. J.A. DARLEY: I will be supporting the amendment.

The Hon. A.L. McLACHLAN: I thought I might respond to the government’s position. The Liberal opposition was minded that the ICAC did muse whether the District Court was an appropriate forum, but in our consideration under clause 9 of the bill, the complaint is being lodged at the Commissioner for Equal Opportunity. It is our view that since a complaint may well have already been lodged, that was the appropriate place for an order to be issued regarding that the respondent refrain from a particular act.

I would endorse the comments of the Hon. Mr Parnell that that sort of order would be of greater significance to the individual but it is not earth-shattering in its nature and to require a person in this situation to go through a greater hurdle and appear before the District Court may only add insult to injury. On reflection, the Liberal opposition believe the appropriate place is the tribunal.

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