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Tuesday, March 06, 2012

ACT FOI reform stalled, whistleblower protection plans open for comment

ACT Chief Minister Katy Gallagher's plan to bring the Territory Freedom of Information Act generally into line with the reformed Commonwealth act by the end of 2011 was not realised. Her version is the ambition failed because the bill was blocked in the Legislative Assembly in December by the Opposition and The Greens. Their version is they voted to adjourn debate because the Government was seeking to rush through less than satisfactory legislation and they were not ready for substantive debate on the bill introduced three weeks earlier in November. Either way, debate will resume sometime in this session. It's been a long haul since the Assembly established a committee to have a look at this in 2009 although some changes to the law have occurred since and the Chief Minister has some administrative improvements to her credit. The bill as introduced would bring welcome changes but stops way short of groundbreaking.

Of interest also in the Territory is the exposure draft of the Public Interest Disclosure Bill released on 22 December and open to submissions until 26 March-by email to or to
Public Interest Disclosure: Consultation
Public Sector Management
Chief Minister’s Department
GPO Box 158
Canberra ACT 2601.

This proposal is a significant improvement on the 1994 act, but as always leaves further room for changes that would deliver "best of breed." Queensland leads in that respect and of course the Commonwealth drags the chain with nothing to show for years of talk.

 It's not too late to point out how the ACT might improve even further.

 The ACT Exposure Draft  states the intention is to replace the 1994 act with "a scheme that delivers best practice, addressing the identified deficiencies of the current model. The guiding principles of the new bill are:
  • that genuine public interest disclosures should be encouraged and facilitated
  • the public interest disclosure scheme is reserved for serious matters where internal resolution is, or is likely to be, unsuccessful
  • purely internal and personal individual ACTPS employment‐related complaints and grievances will rarely constitute public interest disclosures, and are better handled in other processes
  •  that people who make serious allegations of maladministration that are in the public interestto disclose and resolve are adequately protected and treated respectfully
  • that people who make a public interest disclosure are entitled to be briefed (confidentially if necessary) on the progress and outcomes of their disclosure
  •  if a disclosure is genuine, it is in the public interest that the findings of any investigation are made public
  •  the Commissioner for Public Administration will be informed of all matters that could amount to a public interest disclosure to decide on whether the process under the legislation is activated and provide appropriate advice on handling the issues
  •  the Head of Service will be informed of all public interest disclosure proceedings."
Two aspects of interest..

The draft defines "disclosable conduct" as conduct of a public sector entity or public official that is any of the following:
(a) official misconduct;
(b) maladministration that adversely affects a person’s interests in a substantial and specific
(c) a substantial misuse of public funds;
(d) a substantial and specific danger to public health or safety;
(e) a substantial and specific danger to the environment.

And on public disclosure, the draft provisions "indicate that the discloser may make a disclosure to a member of the Legislative Assembly or a journalist, of substantially the same information that was the subject of their public interest disclosure, if a discloser has made a public interest disclosure to a disclosure officer and:
  •  has been told that the disclosure will not be investigated or
  •  has been told that no action will be taken in relation to the disclosure or
  •  has not been told within 6 months after the day the disclosure is made whether or not the disclosure will be investigated or dealt with or
  • has been told the disclosure will be investigated but has not been told about the progress of the investigation for a period of more than 6 months or the investigation has not been completed with 6 months from the date the discloser made the disclosure. "

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