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Public Interest Disclosure Bill

The Hon. A.L. McLACHLAN ( 17:59 ): I rise to speak on the Public Interest Disclosure Bill 2016, and I speak on behalf of the Liberal members in the chamber. The Liberal Party will support the second reading of the bill and will be moving amendments at the committee stage.

In March 2013 the Independent Commissioner Against Corruption, Mr Bruce Lander, undertook a review of the whistleblower legislation in South Australia. His report was tabled in parliament on 30 October 2014. The bill before the chamber is the government’s response to this report. The bill will replace the current whistleblower scheme that operates in South Australia and, if passed, will replace the Whistleblowers Protection Act 1993 that currently operates in South Australia.

In his report the commissioner formed the view that the Whistleblowers Protection Act was no longer fulfilling its primary objective of facilitating disclosure and providing protections for those who make disclosures. He acknowledged criticism of the extant act that it is no more than a framework or set of principles. Further, the ICAC Act has subsequently been enacted. The ICAC Act evidences a legislative intention that is not entirely consistent with the remarks made in the second reading speech in 1993. There are tensions between the Whistleblowers Protection Act and the ICAC Act that need to be resolved.

The commissioner also highlighted, inter alia, that the current act contains language that was unnecessarily confusing and offered no guarantees to a whistleblower who takes the risk of making a disclosure of public interest information that anyone will do anything to address the disclosure. The act also did not make an act of victimisation an offence.

The commissioner did not favour amending the Whistleblowers Protection Act. He suggested it be repealed and new legislation enacted. The government followed the commissioner’s counsel. The bill that is before us comes, as it were, virtually complete as if it were received from the head of Zeus. I do not intend to recount all the advice that the commissioner set forth in his missive on whistleblowing. The report is available to the public and honourable members can read the report for themselves if they have not already done so.

For the benefit of the chamber I wish to emphasise a few salient points that I consider of weight and useful to have regard to during the debate. The existing act has been legislated for over 20 years. We do not have a clear understanding of whether it has been effective; there have been very few litigations surrounding the workings of the act. The Law Society pointed out in its submission on the bill that this may suggest that, despite the best intentions of the legislators at the time, there is still a prevailing fear on the part of persons, in particular employees, of an adverse impact upon them if they should make a whistleblower complaint.

As the commissioner points out, there are two explanations. One is that the legislation is working well and whistleblowers are making disclosures without fear of adverse consequences and the disclosures are appropriately acted upon without any consequential adverse impacts to the whistleblower. The alternative explanation is that whistleblowers lack confidence in the legislation and its processes, and therefore do not make disclosures or, having made a disclosure, do not seek a remedy when they suffer victimisation as a result of the disclosure. The reality may even be somewhere between these two positions. There is no empirical evidence. We simply do not know.

There has not been much substantive evaluation of the experience of public officers and contractors making public interest disclosures. There has also been limited evaluation of the impact of those disclosures on public administration or the effectiveness of various whistleblower regimes. The commissioner’s report does reference a number of studies. They indicate that when public sector employees consider that reporting wrongdoing is something that could or should be done, their tendency is to report internally to management rather than to responsible officers. Only a very small proportion of respondents would make a disclosure to the media and, not surprisingly, fear about reprisals, lack of clear reporting channels and lack of faith that any action will result from the disclosure are disincentives to potential public interest disclosers. It is in the government’s and the people’s interests that unacceptable conduct in public administration is uncovered.

Government has become increasingly complex and there is a corresponding need for effective legislation to facilitate disclosure. Therefore, despite the lack of research into the impact of the current act, we still need legislation of this type and this bill seeks to update our existing regime. The bill before us has been drafted having regard to four key principles: who should be given legislative protection from making public interest disclosures; what should be the content of such a disclosure; to whom should the person should make the disclosure to obtain statutory protection; and what should be the extent of that protection.

From a whistleblower’s perspective, they need to know what type of information can be the subject of a disclosure, to whom the disclosure should be made, that a disclosure will be appropriately and adequately investigated by an integrity agency that has that responsibility as part of its core functions and that he or she will be protected, as far as is possible, from any act of victimisation from any person, whether or not that person is the subject of the disclosure. It is in the state’s own interests to exercise its powers to pursue official secrecy. Cardinal Richelieu is reported to have said, ‘Secrecy is the first essential in the affairs of state.’

It is arguable that the whistleblower legislation regimes themselves represent an exercise of state power. There is a defined pathway for the individual as well as tests that apply. This is a degree of social control, albeit one that is designed with good intentions to facilitate disclosure that is in the public interest. Whistleblowing is an individualistic, moral response to wrongdoing. The individual is still pitted against the might of the state, despite the protections in this bill. In his paper published in the Adelaide Law Review in 2000 on the existing act, Mr Matthew Goode points out:

A ll participants appear to define wrong doing in their own moral terms, usually as a breach of some absol ute rather than relative ethic, and a ll want to do something to improve the situation, whatever it is.

In his review of the motivations of the players in any disclosure regime, Goode highlights that the worth of this type of legislative intervention is less in the immediate efficacy in exposing wrongdoing than its ability to bring about a shift in attitude from the notion of a whistleblower or an informer as a person betraying a secret to one revealing the truth.

The whistleblower acts on principle. They have to grapple with much internal conflict. They are acting against authority for what they believe is the greater good. In response, organisations tend to see such an act as a challenge to its authority. In other words, the whistleblower consciously abandons the accepted culture and practice of their organisation. They cast themselves adrift from their own community. This inevitably places them under great personal stress. Even with protections in place for a whistleblower, they are still putting their lives, employment and relationships at risk.

Organisations in the public sector are perpetual and have long embedded memories. An organisation can take as long as it wants to wear down a whistleblower and make them leave. It can be done subtly and insidiously with no formal action or process to provide proof of evil intent. Legislation is important but is not the whole solution. Strong leadership and a healthy organisational culture is what is required in the public sector, together with ministerial encouragement, rather than abuse, such as is described by the ICAC in respect of the Gillman land sale.

Without these things, the bureaucracy will always be at risk of gravitating to adopting without question the view of the leadership cadre and giving blind obedience to its will. That is the undercurrent or rip that we must always be on the lookout for, as it eats away the pillars that support our democratic institutions. In other words, this legislation may be no more than symbolic and a cultural signal from the parliament of our expectations of the public sector.

The bill’s stated objectives are to encourage and facilitate disclosures of certain information in the public interest by ensuring that proper procedures are in place for making and dealing with such disclosures and by providing protection for persons making such disclosures. The bill contains definitions that are consistent with and complement the scheme established under the ICAC Act. We see the inclusion of the terms ‘corruption’, ‘misconduct’ and ‘maladministration in public administration’ with the same meanings as in the ICAC Act.

The bill provides protection for disclosure by members of the public about wrongdoing in the private or public sector where the information relates to a risk to public health, safety or the environment, provided that it is disclosed to an appropriate recipient. Members of the public sector also receive protection for disclosing matters concerning corruption, misconduct and maladministration in public administration. Under the proposed scheme, there will be designated and responsible officers in the public sector agencies and councils who will be required to take appropriate action when reports are made to them.

For disclosure to be protected, the reporting person must believe on reasonable grounds that the information is true or may be true and is of sufficient significance to justify disclosure. The public officer must make the disclosure to a relevant authority defined in the bill. The relevant authority will depend on the nature of the disclosed information. For example, it could be a designated officer or a supervisor, the Commissioner for Public Sector Employment, the Ombudsman, the Environment Protection Authority, the Auditor-General, the Judicial Conduct Commissioner or the Office for Public integrity, and the list goes on.

The bill creates a duty on the person who receives an appropriate disclosure to take action in relation to the information and take reasonable steps to keep the informant advised of the action or outcome of the investigation. The bill also permits disclosure to be made to a member of parliament, other than a minister of the Crown, if a person makes appropriate disclosure according to the requirements of the act and either does not receive notification within 30 days that an assessment will be made or does not receive notification within 120 days of the outcome.

Currently, the Whistleblowers Act does not cover disclosures made to a member of parliament unless the member is a minister of the Crown. The bill creates an offence for knowingly divulging without consent the identity of an informant except in certain circumstances. The penalty for this offence is stated to be a maximum $10,000 fine or imprisonment for one year. The bill also makes it an offence for someone to victimise a potential whistleblower. It has been drafted in the same terms as the ICAC Act.

I now turn to the Liberal amendments. The amendments that have been filed by the opposition are in response to the commissioner’s recommendations 14, 19 and 21. Amendment No. 1 accommodates recommendation 14 of the commissioner’s report. The bill unamended permits a public officer to re-disclose information to a member of parliament where there has been a public interest disclosure in accordance with the act but there has been a failure to investigate or keep the public officer informed.

The opposition’s amendment seeks, in the same circumstances, to also permit the disclosure to be made to a journalist. My understanding of the Attorney-General’s view in the other place is that disclosure in these circumstances is sufficient, as the member of parliament can, under privilege, bring the matter to the attention of the parliament. The commissioner takes a different view. He has made this clear not only in his report but in recent public statements to a parliamentary committee.

I am in agreement with the commissioner on this issue. Other states make provision for disclosure to journalists. The media plays a critically important role in our society. It is critical that the new regime meets the needs of our citizens who desire the administration of their state free from the scourge of corruption, the pain of negligence or nadir of indifference by those who purport to serve them in the bureaucracy and oversee the community’s wealth.

This is an important amendment. If we fail to provide for disclosure to the media, not only are we going against the wisdom of the commissioner, but we are sending a signal to the community that we favour secrecy over transparency, darkness over light, and are putting the interests of the executive over the interests of the whistleblower and, in turn, the community that wants that ethical person to come forward and shed light on those who prefer to live in the shadows.

Amendment No. 2 adopts recommendation 21 of the commissioner’s report. Whilst the bill as drafted provides for vicarious liability, this amendment clarifies that there is a duty on agencies of the Crown to take reasonable steps to prevent victimisation of employees at the hands of other employees. The amendment also provides that, if the principal officer of a public sector agency follows the correct procedures required of them in the bill, they will have a defence to any proceedings commenced against the Crown.

Amendment No. 3 is consequential to amendment No. 2. The amendment clarifies that the other defence provision contained in clause 9 of the bill applies to persons not being the crown. Amendment No. 4 adopts recommendation 19 of the commissioner’s report. This amendment provides an injunctive remedy to a whistleblower who reasonably suspects that they are at risk of being victimised. The whistleblower can apply to the Equal Opportunity Tribunal for an injunction.

The academic, Irving Janis, developed the concept of ‘groupthink’. I understand it was derived from the Orwellian expression ‘doublethink’. According to Janis, the groupthink stands for an obsessive form of concurrence-seeking amongst members of a policymaking group. Group members value their membership of the group above all else. This in turn causes them to strive for agreement within the group without critical debate.

Group members suppress personal doubt, silence dissenters and blindly follow the leader’s wishes. Group members develop a strong belief in the superior morality of the group, combined with a disdain for those opposed. Mr Janis argues that the result of groupthink is a distorted view of reality and excessive optimism, producing hasty and reckless policies and a neglect of ethical issues. Members of the Labor Party will be very familiar with this mode of operation. Groupthink is one of the key principles on which the party operates—I think it is called ‘the pledge’.

The people of South Australia are suffering the results of this pledge. We have a Labor government addicted to secrecy and opposed to transparency, and it has an irrational hatred for community engagement debate, unless it suits the politics of the day or season. I ask members of the chamber to reflect on the Gillman debacle, in particular on an inquiry which gave us an insight into the deplorable manner in which our public servants are treated: members of the board resigning in protest; executives being subject to crude abuse.

We have a hospital building on North Terrace, but no patients being treated within its walls; we have Transforming Health, but no efficiencies in the health sector, only increasing costs; we have a health department that appears unable to move into the new hospital; we have a Riverside development clouded in mystery and a contract that was only reluctantly made public and only then after certain redactions. We need a strong and robust whistleblower regime, but we also need more: we need a government committed to open debate about the challenges in South Australia and the actions the executive is taking to address the same. Ethical resistance to corruption and other forms of wrongdoing are constantly foiled by secrecy and workplace silence.

We not only need this bill, but we also need a cultural change in leadership of the state. Alas, we have to wait the election of a Liberal government. We must not see this bill as a panacea of discovering the ills of the executive or its bureaucracy. There is much work to be done at every level of government to ensure that there is a right culture of compliance and a willingness to be transparent. We must constantly revisit the compatibility of disclosure protection policy to important cultural realities.

As a community, we should make sure, without waiting for a complaint, that there is no impact on whistleblowers’ lives after protected disclosures have been made, for the individuals who do show the courage to make disclosure are doing so for our collective benefit. They are putting at risk their lives, employment and relationships for our betterment.

See full session on Hansard