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Friday, September 17, 2010

Queensland "world beater" on whistleblower protection

Dr A.J Brown's summary and analysis of the new Queensland Public Interest Disclosure Act in The Australian describes the protections for taking a public interest disclosure to a journalist as "the simplest, clearest and most liberal provision for public servants to be able to go public with serious concerns about wrongdoing, if official authorities fail to act -- not just in Australia, but anywhere in the world." As Chris Merritt comments this ups the ante in Canberra where independent Andrew Wilkie has a particular interest in the subject and newfound clout. Dr Brown's comparisons of the Queensland scheme with NSW and the Federal Government's March proposal follow:

"If a government agency or integrity authority fails to act when it should, there are no arbitrary time limits or other artificial restrictions on when a public servant may go public. As in NSW, there is a requirement to wait for six months if a whistleblower simply does not know whether or not the agency is doing anything. However, if it is clear that an agency is not dealing with a disclosure, including a "deemed refusal" to act, or as soon as the agency has completed its inquiries and if it decides not to act, then a reasonable public servant can go to the media immediately. This could be days, hours or even minutes after making the original disclosure, if the circumstances were sufficiently urgent.

The only requirement is that, at all times, the public official must have an honest and reasonable belief that the information they are disclosing is about official misconduct, serious maladministration or the like, which needs to be rectified. If an agency's response is professional, and the outcome is properly explained to the whistleblower, the whistleblower will still need to be sure they have a reasonable basis for believing that outcome is wrong. The provision is not a licence for disgruntled public servants to simply complain, and rush to the media with their complaints.

Public officials will need to stop and be sure that their concerns remain based on a reasonable belief that wrongdoing needs to be rectified -- or they may run the risk they do now, that going public will leave them exposed to criminal, disciplinary or civil action. However, this test of reasonableness is much lower than in NSW, the only other Australian jurisdiction to have any similar provision so far.

In NSW, it is not enough for the whistleblower to have a reasonable belief that the disclosure is substantially true: the Act requires it to be substantially true. No one knows who is meant to make this ultimate assessment, or how they are meant to make it. Instead the Queensland test is similar to, but slightly simpler and more flexible than Britain's Public Interest Disclosure Act. Until now, that legislation has been the most liberal in the world.

The Queensland test is also more straightforward than the equivalent proposal in the federal Labor government's proposed whistleblowing protection regime for federal public servants.
In March this year, the federal government proposed that before a disclosure to the media will retain legal protection, the public interest in disclosure must "outweigh countervailing public interest factors", with examples including confidentiality of Cabinet deliberations. Being confident they have the benefit of such a balance is a more onerous and uncertain test for a single public servant to try to meet.The federal proposal does recognise there may also be some circumstances where a public servant could justifiably go public, without first going to any proper authority at all. However, on the important issue of when whistleblowers are entitled to go the media with any public interest disclosure as a last resort, the Queensland section is now the most simple and flexible."

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