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Thursday, November 04, 2010

NSW whistleblower protections welcome but short of "world beater" class

The Protected Disclosures Amendment (Public Interest Disclosures) Bill passed all stages in the NSW Parliament on 27 October. The legislation implements most recommendations arising from a review undertaken by a parliamentary committee in 2008 that found the whistleblower law, apart from its shortcomings had been orphaned to the extent it was difficult to ascertain how effective it had been, if at all. The Committee reported in November last year. Opposition speakers were right to lament the slow process. Some minor Government and Opposition amendments to the bill as introduced were agreed to during Assembly debate on 21 October. 

There are many good features in the legislation, including an Australian first in including a reference to a government information contravention as wrongdoing, but in some respects it doesn't match the "world beater" standard of recent Queensland legislation  according to Professor A.J Brown, one of Australia's leading experts in this field, particularly circumstances in which protection is extended to disclosure of wrongdoing to the media. The National Secretary of Whistleblowers Australia was reported as saying " they’ve fiddled around at the edges of the legislation and in the end have set up systems that have a lot of room to do nothing."

Welcome changes include new oversight of whistleblower protection by the Ombudsman and the Protected Disclosures Steering Committee, with the Ombudsman responsible for raising public awareness of the act, assisting agencies, and monitoring and auditing compliance; a requirement for all public authorities to adopt internal protected disclosures policies and prepare annual reports on their obligations under the Act; providing protection for a public official where a disclosure is made with an honest belief on reasonable grounds that information shows or tends to show wrongdoing; and extending protection to individuals who are independent contractors of public authorities engaged under a contract to provide services to or on behalf of the public authority where they disclose public sector wrongdoing.

"Government information contravention", defined as "conduct of a kind that constitutes a failure to exercise functions in accordance with any provision of the Government Information (Public Access) Act 2009", has been added to corrupt conduct, maladministration, and serious and substantial waste as subjects of a protected disclosure. While arguably maladministration in any event, the inclusion of this provision gives added weight to the importance of proper conduct in the  making of a decision on access, and to the offence provisions in the GIPA act for improper interference in decisions, or concealing requested information.

The Department of Parliamentary Services, the Department of the Legislative Assembly and the Department of the Legislative Council are included in the definition of "public authority."

The penalty for reprisals against a person have been increased to 100 penalty units ($11,000) or imprisonment for 2 years, or both.( Apparently no one has been succesfully prosecuted since the introduction of the act.)

The Government made much of the fact that the bill provides for new remedies for whistleblowers by enabling them to seek compensation should reprisal action be taken  following a report of wrongdoing in accordance with the act's provisions.In an email Professor A.J. Brown of Griffith University told us the  "amendments don't give a right to seek compensation through the Industrial Commission or workplace relations system.  They just create a right to seek compensation for damages in court.  This is what most other jurisdictions have had for years, but there is little evidence that it is an effective compensation mechanism that people are prepared to take up (too risky, too ill-defined, too high a risk of costs etc). Our recommendation has been that we should be looking at compensation through the workplace relations system instead."

There have been no change to provisions concerning disclosure to a member of Parliament or a journalist: in order to be eligible for protection, public officials making such a disclosure  must have already made substantially the same disclosure to an investigating authority or public authority, and the authority to whom the disclosure was made must have: decided not to investigate; or not completed the investigation within six months of the original disclosure being made; or investigated the matter but not recommended any action to be taken in respect of the matter; or failed to notify the person making the disclosure whether the disclosure would be investigated within six months of the disclosure being made. 

In his email Professor Brown said that in this area "the NSW provision used to be the national lead (albeit not very good), and it has already now been leapfrogged this year by Queensland and by what is planned by the Commonwealth." He had previously written comparing the  Queensland provision and the corresponding NSW law:
"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."

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