Protected Disclosures Bill

Debate resumed from an earlier hour.

Mr HATTON (South Coast) [7.30]: A number of things militate against openness in government. One of them, which I mentioned prior to dinner, is Cabinet secrecy, even to the extent where the Auditor-General can be denied access to Cabinet documents for the purposes of undertaking a financial audit. For example, in Sweden an all-party constitutional committee has access to Cabinet documents. There is an increasing use by governments, at both the Federal and State level, of commercial in-confidence as the reason why material should not be made available to the general public, often when substantial amounts of money are involved. I did not think the design of Port Macquarie Base Hospital was very complex or novel, but it could not be revealed because it was commercial in-confidence. Under Health Care of Australia the Government is paying Mayne Nickless $4 million a year for the service contract. The formula used to calculate that contract could not be revealed in any detail, even to the Public Accounts Committee, and it could not be analysed. Under the previous Labor Government the Sydney Harbour tunnel was a classic example.

Quite often the terms of contracts are kept confidential. To me, that is wrong, particularly after a contract has been awarded. When I was talking to officers of the Court of Audit at the Hague I discovered that the policy in Holland is that once a contract has been let, even if it involved commercial in-confidence information, it is released after a period of usually only a couple of months. The practical view taken in Holland and in some other European countries is that technology is an ongoing thing, is very quickly superseded, and is subject to industrial espionage. In the spirit of openness the terms of a contract should be made public.

When members consider such things as Cabinet secrecy, commercial in-confidence and contract secrecy in order to determine how that sits with former Cabinet Ministers who can make good use of information to which they, their Cabinet colleagues and senior public servants have access - for example, former Premiers Wran and Greiner and former senior public servants - they might wonder why there was secrecy in the first place. People who leave the Roads and Traffic Authority or the Department of Planning, for example, can make use of that knowledge. In this increasing climate of secrecy and for all sorts of what appear to be sound reasons it is important that a public servant who is unafraid, who will speak out and who, because of higher public duty, will tell people what is going on - whether there are rorts in contracts, whether there is partiality, whether there is wastage, whether there is corruption - should be protected.

It is more important now than it ever was in local government, where senior officers depend on councillors for the renewal of their contracts, and in the public service, where people in the senior executive service depend on the Government for the renewal of their contracts. We know very well where their loyalty will lie. If there is something untoward, they will not reveal it if they believe it will reflect on their contract renewal. Nothing in whistleblower legislation will overcome that. When I looked at this matter during my Churchill Fellowship tour of Sweden and Canada I discovered that we really cannot protect public servants who speak out. For example, in the United States of America the hotline concept was started about 11 to 12 years ago. The General Accounting Office in the United States of America, which was under pressure to attack fraud, set up a 24-hour a day hotline service, which averaged 7,000 to 8,000 calls a day. Although 90 per cent of those calls were not productive the remainder were so productive as to make it worth while. When I spoke to auditors-general in both countries the following comment was made, to quote from my report:

Low level fraud can usually be picked up by audit. High level corruption is very difficult as it is hidden by collusion and well covered. Generally speaking, in the opinion of the Auditor General's Office [in Canada] audits may not be as effective at detecting high level fraud as a Hotline.

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The Canadian Auditor General did research on the USA scene for possible use in Canada [of the hotline] and found out that to establish the system in Canada would cost approximately $600,000 per year. It needs sophisticated people on the phones who can convey credibility and cultivate trust with the informant. However, the stress level is high and to avoid burn out staff rotation would be necessary every month. Six bilingual people were needed, two of whom would answer phones during the day. An answering machine would be used at other times.

My report then goes on to refer to confidentiality and states that it is important to protect those who call in, and that precautions should be taken to protect them. The criminal code in Sweden states that it is a criminal offence for anybody to reveal a source within the public service in matters of whistleblowing, unless it is a matter that has come before the court. Obviously then the source has to be revealed in the giving of evidence. Sweden considers the right of a public servant to speak out and be protected to be so important that it has included that protection in its criminal code. I was quite impressed with that, although at first I thought it was extreme. However, I do not consider it extreme after 20 years in this place, after dealing with a lot of whistleblowers and after seeing the stress and agony that they have gone through and the retribution that they have suffered simply because they have spoken out in their higher public duty.

The person who has worked with me as a research officer for more than 10 years was the first to get the sack after we blew the lid off the then Department of Motor Transport and revealed quite life-threatening situations in that department. A magisterial inquiry under the Wran Government not only authenticated what we had to say but revealed that more corruption was going on within that department. That department was able to heal its wounds, but 11 years later the Independent Commission Against Corruption revealed that the same sorts of things are going on. This legislation is tremendously important. There are considerable incentives for people to say nothing and to misuse information for private gain. Considerable problems are faced by taxpayers in getting information out of the system because of the things to which I have referred tonight. Under freedom of information it costs $30 an hour to obtain information; and one is beholden to public servants to determine the time that is taken to obtain that information and the cost involved. [Extension of time agreed to.]

The whistleblowers legislation stems from the Independents' charter of reform. It has been a particular interest of the honourable member for Bligh, and I acknowledge her efforts. It has also been a particular interest of the honourable member for Manly and of mine, as it has been close to my heart for a long time. It is absolute nonsense to say that a whistleblower should not be protected if he or she goes to a journalist or to a member of Parliament. If that were to be so, there might as well be no freedom of information legislation. The argument is that one can go to the Independent Commission Against Corruption or the Ombudsman or the Auditor-General, but it is increasingly evident that the ICAC is bogged down with a vast workload. On many occasions people go to the ICAC, but the ICAC chooses not to investigate, or it does not investigate thoroughly. The Office of the Ombudsman is overworked and underresourced, and consequently an investigation might not be carried out. The budget for special audits in the office of the Auditor-General is limited, and allegations may not get the attention they deserve.

A public servant might consider a matter that starts out quite small as being important and likely to lead to matters of wider significance; but the investigating authorities might not see it in the same light. Why should not public servants, who are citizens of a free society - Australia - have the right to go to a member of Parliament or to the press and be a protected person under the Act, provided their information is not false, misleading or vexatious, and provided their revelation is not deliberately damaging, without sufficient background in fact? The bill is carefully drafted to ensure that persons who present such information are not so protected. It is important that people's reputations are protected and that in matters of public health and safety we do not facilitate unnecessary scare campaigns that are not based on fact, that are spread by people who want to big-note themselves or have an ulterior political or personal motive.

The bill is an important breakthrough. To my knowledge it is the only legislation of its kind in Australia; so New South Wales will be setting the pace. It is not a radical bill. However, I am concerned that it will give an authority six months to respond. That is too long. If something is important, an authority should be able to investigate it within a month, or two months at the outside. I do not think that the legislation will bring about a change in culture but I hope it does, and I hope that governments of the future will realise that the best thing they can do when they first get into government, as my experience has shown, is to sweep away as many barriers to the exposure of truth as they possibly can. That is a government's best protection, that is a department's best protection and that is an officer's best protection.

If the whole system is opened up there will not be festering corruption or a climate conducive to corruption; there will not be small explosions building into big explosions. It is the ordinary soldiers in the field, the backbenchers, who suffer. When a government loses office because of a major explosion, it is the members in the marginal seats who lose their seats. Because it is in their interests to do so, I appeal to members in marginal seats to support strong freedom of information legislation. It is certainly in the interests of the Opposition to support freedom of information legislation - but I think it is even more in the interests of the bureaucracy and the Government to do so.

There is a residual culture in the public service that is very persistent: first, pretend it has not happened; second, cover it up; and, third, discredit the person who revealed what is really happening. That is really scraping the bottom of the barrel. I
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understand that the Labor Party has had a rethink about the amendments I have foreshadowed. It has accepted not only that a public official be a protected person after going to the authority concerned - the ICAC, the Ombudsman or the Auditor-General - and the matter not being investigated, but that the official must have reasonable grounds for believing that the disclosure is substantially true. I believe the ALP has accepted the word "substantially". Who amongst us would know whether it is totally true? One could never be certain that what one was saying was totally true. But if it is shown to be substantially true and properly based, a person who goes to a member of Parliament or to the media should be protected.

The Australian Labor Party initially proposed, but no longer does, that a person cannot be sued for defamation. The law of defamation is the most abused method of cover-up, whether it be in private or public enterprise, across Australia. Under our very restrictive defamation laws one would never get any truth from whistleblowers. I am proud that this legislation is before the House. I am extremely grateful to the Opposition and the Government for their support, but I am disappointed that the Government will not adopt the honourable position of protecting people who comply with all of the provisions of the bill, but who then feel that it is necessary to go to the media or to a member of Parliament.

I share the concerns expressed in this House about the position in which members of Parliament can be placed. Something must be done about it urgently, before Christmas. When as a result of information provided a member of Parliament exposes something in this House, whether in a question on notice, in a private member's statement or in any other form, he or she must be protected from a subpoena that constitutes a fishing expedition by a legal firm wanting to find out the identity of the person who provided the information. That is a gross interference with the exposure of truth and the rights of a member of Parliament. We have to do something about that urgently.

Ms MOORE (Bligh) [7.47]: I strongly support this legislation, which will bring to finalisation a very important element of the agreement signed by the Government and the Independents as part of our charter of reform of the Fiftieth Parliament. I also support the amendment foreshadowed by the honourable member for South Coast, which is in keeping with the dissenting report presented to the committee by the honourable member for Port Jackson, the honourable member for Wyong and me. We argued in that committee and in the dissenting report, as we are arguing tonight, that whistleblowers should be able to go to the media as a last resort.

In our dissenting report we proposed that whistleblowers should be able to go to the media as a last resort and to be protected if the following conditions were met: that the whistleblower had reasonable grounds for believing that the report made was true; that the allegation was substantially true; that the disclosure had been made to an investigating authority; and that the authority had completed its investigations, but had decided not to proceed. The honourable member for South Coast, who is so passionate about this particular issue and who has been involved in it for so many years, has explained why protection is necessary if we are to open up the system. He spelt that out clearly. In our dissenting report we also said that there can be institutional failure; there should not be, but that there can be. This fact was acknowledged by the Independent Commission Against Corruption in its submission. In such circumstances there is no other effective means of ensuring that an allegation is investigated.

We believe that the requirement that a whistleblower make a disclosure to an investigating authority before disclosing to the media compels a whistleblower seeking protection to follow the proper channels of investigation. The passage of this legislation will be an historic event. I welcome the Government's introducing the bill at this time but I regret that the Government is not able to support the amendment foreshadowed by Independent members and supported by Opposition members. I hope, however, that the amendment will find support in the upper House and that this landmark legislation becomes law during the Fiftieth Parliament.

Mr CRITTENDEN (Wyong) [7.51]: I had the privilege of serving on the legislation committee that considered this bill. As the honourable member for Bligh has pointed out, the committee agreed on most issues that came before it. It was in respect of the fourth recommendation only that there was a huge divergence of opinion between Government members on the one side and Labor Party members and the Independent member for Bligh on the other side. There is no doubt that whistleblower protection is needed in New South Wales. The Sydney Morning Herald of 28 April reported that a survey carried out by the ICAC found that nearly 75 per cent of New South Wales public servants feared they would suffer if they reported corrupt conduct; 25 per cent of public servants surveyed said that there would be no point in reporting corruption because it was unlikely that action would be taken. That is a sad statistic.

The ICAC survey also found that fewer than 5 per cent of those interviewed perceived whistleblowers as troublemakers. Public servants were saying that although they were not necessarily prepared to take action themselves, they were prepared to accept the courageous action of those who did so. The issue of protection for whistleblowers is not confined to this State. The Federal member for Barton, Mr Gary Punch, who chaired the Federal parliamentary committee that uncovered the customs scandal and said that it was time for both sides of Parliament to consider legislation for whistleblowers, was quoted in the Daily Telegraph Mirror of 11 November 1993 as saying that legislation affording protection to whistleblowers would ensure that bureaucrats could reveal wrongdoing without losing their jobs. He blasted "an underlying belief in some sections of the public service that you don't admit your mistakes".

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Mr Punch spoke out as eight individuals from the former shirtmaker Midford Paramount were told that they would share $25 million compensation for losing money and jobs. It is sad that the Federal Parliament had to pay that amount of money because there was no whistleblower to save the public purse on that occasion. Whilst to my knowledge there is no talk of whistleblowing legislation in Queensland, the Criminal Justice Commission there has certainly taken strong action. A shire clerk in Queensland has retained employment through a court injunction - the first such court injunction - secured by the commission to protect the whistleblower. That case related to a matter in the Whitsunday local government area. Recently the Federal Government, through the Australian Senate, established a select committee on public interest whistleblowing. Several prominent people who, as the Federal Attorney-General said recently, perhaps give governments headaches have come forward to outline their concerns about the need for whistleblower protection.

The former Federal Human Rights Commissioner, Mr Brian Burdekin, told the committee that a fear of losing jobs or having careers ruined prevented many people from coming forward to detail issues and concerns in order to protect the public, the public service and government generally. The New South Wales Ombudsman, Mr David Landa, told the Senate committee that he wanted more power to protect whistleblowers. He said that he should be permitted to order punitive action against those who harass or victimise whistleblowers. Generally speaking, the Senate committee traversed much the same ground as that covered by the New South Wales legislation committee. There was, however, one big difference. The bipartisan Senate select committee reported to Parliament that a fundamental shift in values and ethics in the workplace was required if the stigma associated with whistleblowing was to be overcome.

The select committee saw as its primary concern the need to form a public interest disclosures agency, which would report directly to Parliament, to receive information and arrange for investigation as well as to protect whistleblowers. The chairwoman of the committee, Liberal Senator Jocelyn Newman, said that the committee was saddened and often appalled by the treatment of whistleblowers when they were trying to do what they saw as their duty as citizens, as honourable, ethical, conscientious people in the workplace. I am pleased that the New South Wales legislation committee did not recommend the establishment of a separate bureaucracy to deal with the issue of whistleblower protection. It is understood that the Independent Commission Against Corruption is able to deal with corruption issues, the Ombudsman is able to deal with maladministration, and the Auditor-General is able to deal with matters of serious or substantial waste.

As a member of the committee I was pleased that all members agreed that they did not want to set up more bureaucracy. No matter who I talk to, whether it be to a worker in a pub on a Friday afternoon or the managing director of a public company, it seems that people do not want more bureaucracy when there is no great need for it and it could become only a self-fulfilling prophecy. I have covered the crucial elements, but honourable members need to consider another aspect also: the last resort test. The honourable member for Bligh has just dealt with that matter so I shall not traverse the same ground. The Opposition firmly believes that it is necessary as a last resort for whistleblowers to be able to go to the news media when there is an institutional failure in the system and, in so doing, be protected from defamation action. It is quite possible that institutional failure could arise.

One of my concerns is that whistleblowers need not be public employees. They may be officials of boards appointed by a Minister or a government. I think of people such as the directors of area health services. It is my belief that those people should be given some latitude and should come within the ambit of this legislation. Area health service directors in particular perform an important role in our society. Under existing legislation directors and boards of area health services are caught in somewhat of a legislative limbo. They have neither a management function nor an advisory role. I guess they could be excused for not knowing exactly what their role is. Certainly when a problem arises any decent director of an area health service would want to take substantial action.

I turn to an issue relating to whistleblowing that has been brought to my attention. On 10 February I wrote to the Minister for Health outlining the appalling treatment of a whistleblower and requested that the Minister take appropriate action to protect the employment status of that person. It was several weeks, if not months, before I received a reply, undoubtedly because of the bureaucracy in the Minister's office and in the department. That is not good enough for a Government that has signed a charter of reform to protect whistleblowers. A Minister is required to take urgent action in a case involving a whistleblower. The Minister for Health wrote to me on 20 December 1991, when he was Minister for Health Services Management. In the penultimate paragraph of his letter he stated:

At no time have you indicated to either my staff or myself that you wanted special consideration for your question to be answered prior to the end of Parliament.

I gave that indication when I sent the letter on 10 February 1994, but regrettably no action was taken for some time. I will now refer to examples of case studies involving whistleblowers. X, a whistleblower, claims that A said, in relation to the possible outcome of an investigation which X had commenced, "I'll tell you what, if you bring me down I will personally take out a contract on you". The reporting of the incident followed a phone call from A to X at his home on Saturday, 31 July 1993. X's diary note of this phone call records that A was:

. . . concerned at [Y's] letter to Board. Stressed that he was not threatening, but suggested I [that is X] contact [Y] and try to talk him out of pursuing the issues raised in his letter. If criticisms made public it would adversely affect reputation of himself and organisation.

He also mentioned possible defamation action against me by [two others] . . .

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Therein lies the problem. A senior officer, a supervisor, said to a subordinate officer, "Listen, son, you had better be very careful because a defamation action from these other people might come your way". That is a real worry for someone in a junior position, who probably has a mortgage, a wife or husband, and three or four children. [Extension of time agreed to.]

The effect on X can be demonstrated by the interview recorded on page 28 of the audit branch report of the Department of Health, which read:

I haven't taken it terribly seriously although since that date I've refrained from riding my push bike to work. I have a genuine concern about my safety on the road. I have woken at night with ah pains in my back as though it's you know had the feeling of knives in my back. I guess my imagination running wild.

Either that person's imagination was running wild or he was genuinely concerned that a contract may have been taken out on him. When questioned further regarding his interpretation of the threat, X said:

Well undoubtedly he was going to, well take a contract on my life. As I say I find it hard to take that seriously, that it would go to that extent, but then some of my feelings and I'm still frightened to ride my pushbike to work . . .

That person, either consciously or subconsciously, feared for his safety. To be fair to A, on that occasion A firmly denied having made the threat to take out a contract on X. We will never know the real circumstances, but this whistleblower certainly suffered grievously as a result of either the threat or the perceived threat. When X was asked why he did not consider it appropriate to discuss a certain issue with A, his supervisor, prior to investigation and inform him that he proposed to investigate a certain part of the Central Coast Area Health Service, X replied:

Under normal circumstances I would do that. As I say because of [A's] attitude of investigating anything within the Division . . . I felt he would not allow either not allow it go ahead or to take action to see that when we got to the department that there'd be nothing wrong with . . .

Referring to another whistleblower in the Central Coast Area Health Service - the whistleblower the subject of my letter to the Minister on 10 February 1994 - page 45 of the audit branch report stated that in his letter to the chairman, Y described the 4.00 p.m. meeting with A as follows:

. . . From the moment we entered the room we were subject to a form of intimidation and abuse the delivery of which I found somewhat overpowering . . .

At a point in this meeting something snapped inside of me. I was unable to do anything more than just hang my head and sit there. I wanted to escape from [A's] office but for some reason I was unable to move.

Most people who enter politics are not wilting violets. I am not saying X and Y are wilting violets, but they perceived a real threat to themselves. It is important to realise that, and to understand the difficult situation in which some employees find themselves when they simply try to do their jobs to the best of their ability. The issue was summed up by Mrs Y when she said to the investigator in the audit branch of the Department of Health:

I know that some of the allegations [Y] brought to you proved to be correct and I understand that one fellow has been allowed to resign and sent on his merry way, meanwhile [Y] is labelled a "Whistleblower" and continues to suffer. It is obvious to me that in the end it is not worth doing the right thing.

This Parliament must do something to protect people like X and Y. They were performing their duties in the public interest, as they saw fit. So far one person has been given the option of either resigning or being sacked, yet Y's health has been seriously affected, perhaps in an enduring way. For that reason whistleblowers must be given full protection. The person referred to as A was the subject of a ministerial appointment. It is all well and good for political parties to have signed the charter of reform all those years ago and to finally bring whistleblower legislation to fruition four months prior to an election, but it is important that the legislation not be flawed.

People who are placed in an invidious position through their employment contracts, their appointments to government boards et cetera must be protected. Ministers who are given information should not simply sit back and hope the problem will go away, because inevitably the problem does not go away. Ministers must be capable of admitting that a problem may exist and investigating it. This report has been with the Department of Health, and presumably the Minister, for two or three months. It was investigated over a period of 11 months. The Minister cannot be criticised for not being a mind reader. However, he was told that a whistleblower needed protection and was not given that protection. The Parliament must think about where it is headed and about the role of Executive Government.

All members, including the Minister for the Environment, his fellow Ministers and non-ministerial colleagues, need to be careful that they do not fall into the trap of accepting the status quo and doing anything to maintain it. Let us come clean and do something about the problem. That is what whistleblower protection should be about, and that is why in the last resort the Government is not prepared to do the right thing to protect whistleblowers. As far as the Government is concerned, the bill is Clayton's legislation. The Government does not have any interest in doing the right thing. I do not often quote Sydney Morning Herald editorials, but a recent editorial in that newspaper stated that the State Government particularly needs to redeem its weak record in respect of whistleblower legislation; that admittedly it brought forward the Whistleblowers Protection Bill in 1992, but that the legislation had the serious fault of offering no protection to whistleblowers who feel compelled to go to the media to get something done. That editorial further stated that the bill was never passed, nor should it have been passed, and that it was inferior legislation designed to create the impression that the State Government was concerned to protect whistleblowers - [Time expired.]

Mr NAGLE (Auburn) [8.11]: When does honesty not pay? The Minister for the Environment thinks this legislation is a joke. Countries such as the People's Republic of China are going to extreme
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lengths with whistleblower protection. Yet a responsible Minister of the Crown, a member of the New South Wales Government, is behaving in a despicable way about a bill that will protect those who would bring to him, their Minister, information they may have about his department. Environmental departments are a good example of where dishonesty may be a very integral part, and perhaps we need more whistleblowers in that department. An article published in the Law Institute Journal under the title "When honesty doesn't pay" told about Jim Leggate and his fight to expose abuse of people who were trying to uncover corrupt conduct in the mining industry. Environmental vandalism was occurring and he decided to expose it. The Fitzgerald report stated that honest public officials are the major potential source of information needed to reduce public maladministration and misconduct, and that they will continue to be unwilling to come forward until they are confident that they will not be prejudiced. In the Sydney Morning Herald of 13 May 1994, under the headline "Whistleblower survived shooting, harassment, MP claims", Malcolm Brown reported:

Two police whistleblowers have survived murder attempts in the past 10 years according to the Independent MP Mr John Hatton.

That is what brings this type of bill before the House. A person who has information about corrupt or grossly improper conduct has a duty to disclose it. That obligation will be one of the main topics at the seventh international anti-corruption conference organised by the Chinese Government. Last year 25,000 public servants in China were placed on trial after other public servants provided information to the Government about corrupt conduct. In April this year an ICAC report unravelled corruption in the public sector. I invite the Minister for the Environment to read that report, which deals in depth with how to track down corrupt conduct. One way to do that would be to study how Clinical Waste Australia - part of his own department - operated and how it received certain environmental permits in the running of its operations. However, to that company's eternal credit, it has rectified all its misdeeds and wrongs of the past.

The object of the bill as set out in clause 3(1) is to encourage and facilitate disclosure in the public interest of corrupt conduct, maladministration and serious and substantial waste in the public sector. That is a very important step to enable the community not only to understand how the legal system works but also to have confidence in the integrity and honesty of the system. Those listening in the gallery would not take too kindly to the behaviour of the Minister for the Environment, and they might perceive some ethical problem in his behaviour. Ethical, legal and organisational considerations are important in determining how to deal with these problems. Over the last 20 years legislation has been enacted on freedom of information, the Independent Commission Against Corruption, the Ombudsman and privacy provisions, and also data protection. The bill offers ways and means by which the public can be alerted to the dangers of corrupt and improper conduct so that they can be provided with information that might not necessarily be obtained under any administration.

The United States Congress, following exposure of much corruption within the federal bureaucracy, passed the Civil Service Reform Act in 1978. That legislation provides that an employee who discloses information which he or she reasonably believes evidences violation of any law, rule or regulation, or discloses gross mismanagement of public funds - I note gross waste of public funds in many Ministers' administrations in this State - abuse of authority or a substantial and specific danger to public health and safety, is protected by disclosing that information to the appropriate authorities for investigation. The danger of false allegations is adequately dealt with in the bill. People who make allegations based upon malice which turn out to be false can be dealt with. Assessments might be made on what are believed to be true facts, though other facts that later emerge might change first opinions. Information can be disclosed about what is believed to be corrupt or grossly improper conduct by fellow officers.

Jim Leggate's attempt to disclose what happened in the mining industry is outlined in the article "When honesty doesn't pay". Others who tried to do the honest and right thing had to settle a legal action worth tens of millions of dollars for a lesser sum. Other officers suggested to them, "I will tell you what we will do. We will not accept that. If you continue to try to settle the case the way you want to settle it, we will refer you to the ICAC and we will blow the whistle on you". When the court case came to fruition New South Wales had to fork out $20 million when it could have settled for one quarter of that amount. The balancing of interests has to be considered. The community has a right to know, and it must have confidence in the institution of government.

China is going down the track toward whistleblowing legislation to alleviate corruption. At a conference in China late next year one of the prime topics will be whistleblowing and reform of the public service. If corruption exists in Chinese society to the extent that such provision is being made, steps can also be taken in Australian society. The committee looked at the State Government's Whistleblowers Protection Bill (No. 2) 1992, which has never seen the light of day. Those who have read the committee's extensive report will understand, as the honourable member for Wyong said, the difficult problem in reporting.

First, it is a terrible situation when people have to put in their workmates. I do not think anyone can be certain that what they are saying about a person is 100 per cent correct, and that creates the first problem. Another problem is the victimisation of those who blow the whistle on corrupt or gross improper conduct. If such people can be quietly confident that they will keep their jobs and not be victimised, they will be more inclined to expose conduct which is either corrupt or grossly improper.
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When the committee considered this issue, it dealt extensively with the provision of external disclosure mechanisms from within investigating authorities such as the Auditor-General and the Independent Commission Against Corruption. During its intensive inquiries the committee considered the creation of an offence in relation to persons who wilfully make false or misleading disclosures - an important consideration. The committee also looked at feedback on the protection of disclosures, and a lengthy report was presented on the act of good faith. It is interesting to consider whether the whistleblower's state of mind should be evaluated. The committee's report at page 34, referring to the submission of Whistleblowers Anonymous, states:

It is irrelevant to society whether the person blows the whistle for the best motives, or out of malice. What matters is that the irregularities that they complain of are corrected, and seen to be corrected.

Malice would only come into the scheme of things if there was no truth in the allegation of corrupt or gross improper conduct by the people involved. I refer to the issue of exposing improper or corrupt conduct to the media when all other avenues have been exhausted. This creates more problems than exposing corrupt or gross improper conduct to the ICAC, the Ombudsman or other investigative authority. I refer to the law of defamation. When someone exposes to the media clearly defamatory material, they should not have a right of privilege in relation to defamation action. The right to privilege should be available only when the information exposed is proved to be substantially truthful and is a material fact. [Extension of time agreed to.]

On 27 April the Independent Commission Against Corruption conducted an extensive survey about public sector employee response to its questionnaire. The survey focused on two major themes: public sector employee understanding of corruption and factors that hindered public sector employees taking action about corrupt conduct they may witness at work. The large number of findings were very interesting and were summed up in the letter written by John Mant, acting commissioner. Of course, the Government spent nearly a year trying to find someone to take the position of ICAC commissioner - which also illustrates its incompetence to govern the State of New South Wales. Be that as it may, the survey sample concluded:

• there is diversity in the range of behaviours which public sector employees identify as corrupt;

• stressing the harmfulness of the conduct assists employees to identify behaviour as corrupt; and

• safe and effective reporting mechanisms will be of little use if people do not believe that there is any point in using them.

The only occasions those mechanisms can be used is when people are protected from harassment and vicious attacks for telling the truth about improper or corrupt conduct in their departments. I remind honourable members of the trials and tribulations of Eddie Azzopardi. His story began when a police officer went through a red light and collided with him as he was travelling down the highway. Next thing he knew was that he was charged. For the past 10 years he has fought to prove police corruption. He was victimised, threatened by thugs, and his garage was burnt down, yet he persisted and his claim that police were harassing him was proved correct. We know the result of the ICAC inquiry in regard to the police officers who attacked Eddie Azzopardi. If certain people behave in that way towards ordinary citizens, how do they behave towards public servants who really need protection? Many editorials have been written about this very issue. The Sydney Morning Herald on 2 September under the heading, "Whistleblowers need protection" stated:

The protection of whistleblowers is a critical part of any regime that aims to make the public service open and accountable.

If the aim of government is to make the public service open and accountable, it is essential that whistleblowers are protected. For that reason alone it was important that the Government introduce the Protected Disclosures Bill. The editorial continued:

The Independent Commission Against Corruption found that nearly 75 per cent of NSW public servants feared for their position if they reported corrupt conduct.

Why should they not be in fear? If a married man or married woman who relies on his or her job learns of corrupt conduct within a workplace, why should he or she be the martyr and put someone in and suffer the consequences while their colleagues reap the benefits of their actions? Honourable members will recall the occasion when the honourable member for South Coast informed the House that two police whistleblowers had survived murder attempts. The extremes to which some people will go! The honourable member for Wyong said that one person who came before the committee had been told that a contract had been put out on him. I refer again to the Sydney Morning Herald editorial, which stated:

Less than 5 per cent of them, though, perceived whistleblowers as "troublemakers".

Very few people within the public service perceive those who tell the truth about what is going on - matters they know to be gross improper or corrupt conduct - as troublemakers. They are people carrying out their functions as public servants. The final passage in the Sydney Morning Herald editorial was directed to the Government and the Opposition. It stated:

The Independent MPs in the NSW Parliament have put forward a Protected Disclosures Bill that deserves support from the major parties. The credibility of Mr Fahey and Mr Carr as careful managers will be measured by their attitude to this legislation.

The flippant and flamboyant behaviour of the Minister for the Environment confirmed his total disregard for the right of members to speak on the issue. One can only conclude that the attitude of the Government is to try to make the public service accountable so that after seven years of coalition administration the people of New South Wales will have confidence in what the Government does. The Daily Telegraph Mirror refers
Page 5035
to "security for dobbers". I should like to quote the Minister for the Environment, who on 21 April said to this House:

As was observed in one submission, the public interest lies in the truth of the disclosures made, rather than in the subjective reasoning of the individuals who make them. In light of these comments, both the "good faith" and "suspects on reasonable grounds" requirements have been removed from the current bill. The primary test for now securing the bill's protection is purely an objective one, namely, a disclosure by an individual must "show or attempt to show" that there has been misconduct.

That is what the Minister had to say in this House at that particular time, and it showed that he had some feelings about what was happening. Tonight he has shown he has no feelings in that regard. On 17 November 1992, the Premier and Treasurer said:

It was suggested that public authorities should be encouraged to accept the primary responsibility for dealing with misconduct where this is appropriate. The view was put that it was incompatible with this objective to provide a greater degree of protection for disclosures made externally, as such a situation might tend to deflect to external authorities disclosure about misconduct which could more appropriately be made internally to the management of an authority.

In 1992 there was some desire to have whistleblower legislation - [Time expired.]

Mr HARTCHER (Gosford - Minister for the Environment) [8.31], in reply: On behalf of the Government I thank all honourable members who contributed to debate on the Protected Disclosures Bill. It is always fascinating to hear speeches in this Parliament on such subjects. Who would have thought that a member of this House would seriously hold up the People's Republic of China, the most repressive, totalitarian regime in the world, as a paradigm to be followed on an issue such as this, yet the honourable member for Auburn held up China's protected disclosures legislation as a model to be emulated. I will not canvass the many arguments advanced in support of this legislation. Clearly it has the support of the Government - the Government introduced it - and the support substantially of the Opposition and of the crossbenchers. But the issue of disclosure of last resort will be considered in Committee when the foreshadowed amendments of the honourable member for South Coast and the honourable member for Ashfield are debated.

The Government does not accept the foreshadowed amendments, for the simple reason that the protection of those who engage in this type of conduct must be limited. It cannot be absolute. The Government's intention is to protect the public interest and to ensure that the public system works effectively. That cannot be done by granting total immunity or a high level of immunity to people who are mischievous, vexatious or motivated by malice or ill-will and who have a reckless disregard for the truth. This objective is not achieved by encouraging such people, by providing them with a shield to which they are not entitled. The Government believes that public disclosure of some allegations may unjustifiably and irreparably damage reputations, especially when those allegations are found subsequently to be groundless or inaccurate.

Further, the requirement in the foreshadowed amendments that the allegation be substantially true may be insufficient to dissuade a person making a public disclosure from going to the media when he or she remains convinced of the truth and importance of the allegation, despite the finding by the investigating authority that the allegation is without foundation or is unworthy of investigation. In recent times the so-called disclosures of people in universities and the State Rail Authority have been investigated, properly assessed and found to be without merit, yet these people still insist for some psychological reason of their own on coming forward to demand that they have the right to publicly ventilate their spurious, ill-founded and often totally untruthful allegations. The Government is cognisant and supportive of the majority view of the legislation committee that the arguments in favour of whistleblowers being able to make disclosures to the media no longer apply after the bill's introduction, as the reason they had to go to the media is removed by the fact that the bill will be law. That will give them the protection they seek, whereas before they had no outlet other than to go to the media.

Nor does the Government agree that last resort disclosure to members of Parliament should be protected under the bill. If such disclosures were to be made to members of Parliament, what investigatory steps could those members then take to establish the veracity or otherwise of the allegation? None. They have neither the powers nor the facilities to make inquiries, and, accordingly, all they can do is act as a post box. At least with disclosures to the media, an innocent party injured as a result of allegations that are published may be able to seek, if they can afford it, some redress through the courts. But this remedy would not be available if those allegations were made by a member of Parliament under parliamentary privilege and the member of Parliament would not have been able to verify the allegations because he or she would have no such facilities at his or her disposal. The Government introduced the bill in accordance with the memorandum of understanding that it signed some time ago. The Government believes that the legislation it has introduced adequately discharges the obligations it undertook when it signed the memorandum of understanding. It commends the legislation as it was introduced and will resist the foreshadowed amendments.

Motion agreed to.

Bill read a second time.

Clause 4

Mr HATTON (South Coast) [[8.38]: I move:

Page 3, clause 4. After line 15, insert:

"journalist" means a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media;

Page 5036

Mr WHELAN (Ashfield) [8.39]: The Opposition agrees with the amendment, which is in line with a series of amendments that it proposed to move. I foreshadowed some amendments in my second reading speech which, because of agreed changes to the wording, have the same effect. The importance of the definition of "journalist" is evident when one reads clause 19 of the bill, particularly as it relates to the definition of "protection". If there is any criticism of the bill, it should be of clause 19.

Mr HARTCHER (Gosford - Minister for the Environment) [8.40]: The definition of the word "journalist" is not innocuous. The Government rejects this amendment and it does not accept the consequential amendments on which this amendment is based. The definition of "journalist" is extraordinarily wide. It means anyone who, from time to time, might write something or edit something that will be tendered for publication. A journalist may not work for a major organisation or any organisation at all. A journalist might work for a school newspaper or a church magazine. I am surprised that the honourable member for Ashfield has accepted such an amendment. The definition of "journalist" is so wide as to be meaningless. Accordingly, the Government rejects the amendment.

Mr HATTON (South Coast) [8.41]: The Minister for the Environment said that he wondered why anyone would accept such an amendment. He made the spurious comment that a journalist might work for a church or school magazine. Unless a person blowing a whistle on problems within a government department is deranged - and I am sure such situations are provided for in the Act - or is vexatious or stupid, he or she would not go through the process of reporting problems to the Ombudsman, to the Independent Commission Against Corruption, to the Auditor-General and to the head of a department, and then go to a school magazine or a church magazine to blow the whistle. The Government is worried about the definition of journalist. That is absolutely ridiculous!

Mr WHELAN (Ashfield) [8.42]: I said earlier that one has to read clause 19 in the amending bill to determine what protection will be afforded. The Labor Party supports the amendment moved by the honourable member for South Coast, which will offer protection to whistleblowers who refer matters to members of Parliament and extend this protection to journalists. The bill has to contain a definition of "journalist" for it to be sound and comprehensible. We are wasting a lot of time in this Parliament talking about this matter. If the Government wants to object, it should cause the Committee to divide on the amendment which refers to a disclosure to a member of Parliament or a journalist.

Mr Hartcher: Is that your advice?

Mr WHELAN: It is not my advice; it is what members of the Labor Party will be doing.

Amendment agreed to.

Mr WHELAN (Ashfield) [8.43]: I move:

Page 3, clause 4, lines 21-23. Omit all words on those lines, insert instead:

"public official" means a person employed under the Public Sector Management Act 1988, an employee of a local government authority or any other individual having public official functions or acting in a public official capacity, whose conduct and activities may be investigated by an investigating authority;

This definition, like the previous definition, will further define what a public official does and will include those involved in local government authorities.

Mr HATTON (South Coast) [8.44]: I strongly support this amendment. It is important to have a wide definition of "public official" in order to ensure that people in the senior executive service, heads of departments and people under contract in local government are protected.

Mr HARTCHER (Gosford - Minister for the Environment) [8.45]: Once again the Government rejects this amendment for the very clear reason that the definition, which is extraordinarily wide, goes outside the scope of the legislation, which was designed to protect disclosures by public servants. That is what it is all about. The Opposition is saying that virtually anyone who has contact with the Government and who acts in some capacity - it could be the holder of some office, whether or not a public servant, or a contractor to the Government supplying a service - could be caught by this definition. Their conduct or activities may be investigated by an investigating authority, and that investigating authority could be anyone. The Police Service is an investigating authority. Anyone who has a contract with the Government and who could be investigated by the police could be defined as a public official. This definition is ludicrous and it defeats the whole purpose of the legislation, which is to protect people employed in the public service.

Mr HATTON (South Coast) [8.46]: If it was not made clear earlier in debate by the Minister for the Environment, he certainly made it clear in his comments on this clause that the Government does not want a whistleblowers Act. The Government is bound by the charter of reform, so it is going through the motions. It does not want a wide definition of "public official". The honourable member for Wyong referred to improper activity by the area health board in his electorate. It is important for people in the senior executive service, for heads of department, for people on area health boards and for people acting in an official capacity - in this case it is limited to people employed under the Public Sector Management Act or an employee of a local government authority - to be embraced by the Act. Those people are responsible for the expenditure of public money, for contractual arrangements and for handling sensitive information. Surely they should be protected if, in the wider public interest as defined in this bill, they go public - after all the other provisions are complied with, if necessary - to a journalist or to a member of Parliament. It is quite clear that the Government does not want to protect people making such disclosures.

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Mr WHELAN (Ashfield) [8.48]: I draw the attention of the Minister for the Environment to the definition of "public official" in the Independent Commission Against Corruption Act. I am sure the Minister is aware that that Act includes a comprehensive definition of public official, as it does for public authority. A public authority is specifically described in the definition section of that Act as a local government authority. A public authority includes everyone from the Governor down to a member of the police force. I remind honourable members of the obligation under the Independent Commission Against Corruption Act. If they become aware of conduct referred to in sections 8 or 9, they have a duty under section 11 to notify the commission of possible corrupt conduct. This amendment seeks to provide a mechanism to include local government officers, who are already covered by the Independent Commission Against Corruption Act in the Protected Disclosures Bill. They already have that duty. They might be prosecuted if they fail in their duty to notify the commission of possible corrupt conduct. This amendment, which is a tidying-up provision, extends to local government. I urge the Minister and the Government to reconsider their position and their opposition to the amendment.

Amendment agreed to.

Clause as amended agreed to.

Clause 8

Mr HATTON (South Coast) [8.50]: I move:

Page 4, clause 8, line 18, insert:

; or

(d) to a member of Parliament or to a journalist.

The Government wants to fight this amendment and the ensuing amendment about disclosure to a member of Parliament or a journalist in the trenches, and will divide on it. I am so pleased that the Government will be calling a division, because that is an announcement to the general public of New South Wales that the Government wants a whistleblower to blow a whistle in a soundproof room. It does not want a whistleblower to be able to have a matter exposed on the floor of the House by a member of Parliament. It does not want a person in the public service - the "public official" as per the new definition in the bill - to be able to speak with a journalist about a matter after going through all the other available avenues.

The Minister for the Environment said that members of Parliament can only act as post officers. Thank you very much, Mr Minister. We now know what you think is the duty of members of Parliament on the floor of this House. We now know what you think are the responsibilities of members of Parliament. Their duty is not only to represent the electorate, but to represent the wider public interest for the good order and government of this State. That includes standing up in this House and revealing corruption, mismanagement, wastage, nepotism, ineffectiveness and inefficiency in the public service. That is their sworn responsibility, and this legislation will enable them to do that more effectively.

Where do they get their information from? They get it from the public service. Many of them get information only from newspapers, but if one is to do a proper exposé in this House, one does one's homework, one checks one's sources, and those sources are people who work or who have worked in the public service and who are in a position to know. If the Minister for the Environment is silly enough to stand up in this House and make allegations that he cannot back up, he must accept that responsibility and all the opprobrium that goes with it. The Minister then said that a member of Parliament is not able to check out and verify allegations. Many honourable members who have taken a responsible role in this House have been effective simply because they have taken the trouble, as is their responsibility, to verify what they say in the Parliament and to check out their sources.

The final point is the most telling. Does this Government want to deny a public servant, whose sworn responsibility is to serve the public and the public interest, the opportunity to go to an elected representative of our State and tell the truth so that that elected representative can expose the matter in the Parliament? Of course there will be people who will not tell the truth, but by opposing this amendment the Government is seeking to prevent public servants from exercising the most basic of civil liberties, that is, the right to go to a member of Parliament and expose what they have discovered without putting themselves at risk by doing so. It is outrageous.

Mr D. L. PAGE (Ballina) [8.53]: I feel motivated to make a few comments on this matter, having chaired the committee on this important piece of legislation. We have just heard from the honourable member for South Coast a biased view of the world as it applies to protected disclosures. He is saying that the rights of the whistleblower are paramount and the people about whom the whistleblower is making allegations, whether they be public authorities or individuals, somehow do not have any rights. We have not previously had protective legislation such as this, whereby people could go to an appropriate investigating authority, whether it be the ICAC for corruption, the Ombudsman for maladministration, or the Auditor-General for gross waste. The legislation gives whistleblowers the protection to do precisely that.

Having been through that process, this amendment says that even if the ICAC said that a person or an organisation is not corrupt or guilty of any other misdemeanour, a public official would still have the right under parliamentary privilege to make a disclosure to the world through the media. That may have been relevant prior to this legislation. Maybe then the media were the last resort from which to seek public support for some sort of sympathy for a cause; but the legislation provides for protected disclosure and penalties of up to 12 months imprisonment for those who take reprisals against people who make disclosures.

Page 5038

The whistleblower has an enormous amount of protection under the current arrangement. Agreement with the amendment would signal absolutely no faith in the ICAC, absolutely no faith in the Ombudsman and absolutely no faith in the Auditor-General to assess the matters that come before them. The honourable member for South Coast, despite the judgments of the appropriate authorities, will allow people to go to the media and to vilify, if the allegation is not true. Under this legislation, allegations do not have to be true for a whistleblower to be given protection.

Ms Nori: They do.

Mr D. L. PAGE: They do not have to be true. Read the bill. Honourable members opposite have not read it. If the Opposition passes this amendment it will put the rights of the whistleblower above the rights of the individual about whom the whistle is blown. The Opposition is saying that is in the public interest. Superficially that has some argument, but I remind honourable members that when Professor Finn appeared before the committee he said:

We must remember that this legislation covers the interests of at least four groups. It covers the interests of the whistleblower, it covers the interests of the public authority involved, it covers the interests of the person or persons impugned by the whistleblower's disclosure, and it also covers the public interest.

I believe that the honourable member for South Coast is a reasonable person. If he is aware of my involvement in this legislation he would know that I tried very hard to make it better than it was before, and I believe we have gone a long way down that track. I suggest to the honourable member for South Coast in all seriousness that by moving this amendment, supported by the Labor Party, he will put the rights and the interests of the public authority involved and the interests of the persons impugned by the whistleblower's disclosure at the bottom of the heap. He is moving to the top of the heap the interests of the whistleblower as though that were some end in itself. This legislation is not about providing a mechanism for whistleblowers to vent their complaints about the bureaucracy; it is about improving public management and accountability.

The honourable member for South Coast is saying, in effect, that it is okay for whistleblowers to make a disclosure to bodies that are equipped to investigate allegations, but if they say there is nothing in it, the whistleblowers should be allowed to go to the media. What investigative ability do the media have compared with the ICAC on matters of corruption? What investigative ability do the media have compared with the Ombudsman on allegations of maladministration? The media have to deal with a whole range of issues, not just public interest, which is the case when it comes to the ICAC, the Ombudsman and the other investigative authorities.

The media are concerned about profit; they have to sell newspapers. But the honourable member for South Coast is trying to tell me that the media should be put up as some kind of equivalent body to evaluate whether an allegation made about a person or a public authority is valid. The honourable member for South Coast is saying that even when whistleblowers have been to all the official investigative authorities, they still should have the right to go to the media. I question whether the media have the investigative powers that Opposition members and Independent members have suggested they might have. The final point I make relates to the criteria to apply in the provision of protection for disclosures made. Who is to decide whether those conditions have been met?

Ms Nori: The courts.

Mr D. L. PAGE: Exactly. Acceptance of the amendment would be great for lawyers. The amendment sets out certain criteria that would have to be proved. If we were to accept the amendment we would be opening Pandora's box. I am surprised that the honourable member for South Coast has moved an amendment that would result in a bonanza for the lawyers. Who would decide whether a person should be protected? The matter would go to lawyers and would end up in the courts. I put it that this series of amendments - and they are all related - concerning matters such as a last resort test and disclosure to the media was discussed at great length by the legislation committee. In fairness to members of the committee, the issue was difficult. I thank Opposition members for their constructive approach throughout the committee process.

These amendments were the issue upon which the committee divided. Government members did not divide on the issue for some philosophical reason. We said that we wanted legislation that would protect the whistleblower and that arguments that applied previously about whistleblowers needing to go to the media in order to present a case would not apply under this legislation. To provide a last resort of going to the media would be to say implicitly that we do not have faith in the investigating authorities. Occasionally the investigating authorities might fail, but to provide that a whistleblower could go to the media would ultimately be to send a strong message that in terms of capacity to investigate such matters the media were somehow equivalent to the ICAC, the Ombudsman, or the Auditor-General. Frankly, I have real difficulties with these amendments. The legislation is good but I cannot support the amendments.

Ms NORI (Port Jackson) [9.02]: The chairman of the legislation committee was correct in saying that this series of amendments was the one issue that divided the committee. I reiterate that the committee was well run and that committee members did not draw daggers on this issue. I understand the Government's position, and I understand arguments put forward by Government members, who made cogent arguments for their position. But I do not agree with them; I found that the balance tipped in favour of providing for a whistleblower, as a last resort, to go to the media. The previous speaker was also correct in saying that the issue is difficult and vexed. Honourable members who have read the
Page 5039
report of the legislation committee would realise that on this section there was a dissenting report, signed by my colleague the honourable member for Wyong, the honourable member for Bligh and me.

The honourable member for Wyong, the honourable member for Bligh and I came to the conclusion that if the legislation was to have any meaning the provision for disclosure to the media had to be available and had to be protected. I must confess that I did not reach this position quickly or without deep consideration. The committee received submissions from various groups. The Australian Press Council, predicably I suppose, favoured the provision. The council stated that a disclosure to a journalist or to the media in general should be a protected disclosure under the bill when the whistleblower in good faith believes in the truth of the matter and it is in the public interest, for example, to disclose corrupt conduct, maladministration or substantial waste to a journalist or the media.

Mr Hazzard: What about when a disclosure is false, wrong?

Ms NORI: Why is the honourable member not patient? If he would listen to my reasons he would understand why I feel comfortable in supporting the amendment. The amendment takes us to the issues of good faith and truth. The ICAC submission made a number of points. The commission stated that premature public disclosure could hamper proper investigation. I understand why the ICAC would say that. It is important that any public disclosures not be made in such a way that would impede or compromise operational matters. The ICAC pointed out that public disclosure could unjustifiably damage a reputation when an allegation subsequently proved to be groundless or inaccurate. The commission stated that distorted, unbalanced or sensational media reports could focus on the allegation rather than on any measures that might be taken proactively to deal with the concerns raised by the whistleblower.

I recognise the difficulties in allowing a whistleblower to go to the media. The ICAC also stated that institutions may fail and that a safety valve may be necessary when inaction or victimisation occurred, but that public disclosure should be a last resort and the circumstances in which the public disclosure is protected should reflect this. Honourable members will notice that there is a theme being developed by those who made submissions to the legislation committee. The theme consistently encompasses concepts such as good faith, last resort and truth. The House will be pleased to note that the amendments moved by the Opposition reflect that theme. Dr Simon Longstaff of the St James Ethics Centre brought a similar concept to the attention of the committee. His organisation felt that disclosure to the media could be justified if a whistleblower had reasonable grounds to believe that the report made was true, if the allegation had been found to be substantially accurate, and if, notwithstanding his or her failure to avail of established procedures, that course was excusable in the circumstances. I do not quite agree with the last point.

Anyone who was going to go to the media must have exhausted all of the hoops, and the Opposition's amendments reflect that. A whistleblower does not have the right to go to the media as a first port of call. A whistleblower would have to show good faith, and, from my point of view, one of the tests of good faith is that all possible hoops must have been exhausted. That means that a matter would have to be investigated either within a department or by an investigating authority. The submission made by the St James Ethics Centre reiterates the notion that disclosure to the media by a whistleblower could be justified if it is made in good faith, if the whistleblower believes that what he or she is saying is true, and if the substance of the claim is found to be accurate. Not by a long shot are we supporting the right of a whistleblower to go public on any whim and make any old allegation.

A number of those making submissions to the committee were asked who would ultimately determine the test of good faith, the test of accuracy, and so on. If a matter ever came to that, of course it would have to be the courts who decided and, yes - surprise, surprise - the lawyers would make a fortune. I am afraid that is a reality of life in a big city. Who but the courts could decide? When the Opposition's amendments are made clear to the House it will be understood that a person would have to go through enormous hoops before reaching the point of making a disclosure. A submission made by Whistleblowers Australia stated:

The only protection that whistleblowers have had in recent years has been to turn to the media and depending on public outcry to keep themselves from prosecution or retaliatory discharge.

Whistleblowers Australia stated that whistleblowers are reluctant to endorse support for a bill which denies them the right to approach the media with their complaint, for up to the present that has been the only protection they have had. Once a whistleblower makes his or her disclosure the information is no longer under his or her control, leaving no assurance that the matter will be investigated. It would appear to be inappropriate to rule out an approach to the media. Whistleblowers Australia is made up of many people and certainly includes those who consider themselves to be victims of a system that did not afford protection to them as whistleblowers. I take the point made by the honourable member for Ballina that in the past the only option whistleblowers may have had to protect themselves was to go big to the media and give themselves sufficient notoriety - and I do not say that pejoratively - to gain protection.

To some extent the honourable member was correct when he said that if this legislation is used properly, if it works and all the nuts and bolts fit together, whistleblowers will not need to go to the media. There is also provision for an ongoing committee to review the bill, so the Parliament will hopefully have the opportunity to monitor its success and to finetune it. After 12 months the Parliament will be in a position to know whether it is working. If it is working, no whistleblower, or very few
Page 5040
whistleblowers, will have to go public. But I would not like to leave out the option of going to the media. Even though the bill will help many people, the theoretical possibility of complete institutional failure - hopefully not a possibility in reality - cannot be ruled out. That option has to be available for that one case in 1,000 or that one case in one million when everyone gets it wrong; when, no matter what the whistleblowers do, no-one has listened to them or followed up their cases. The Parliament has to provide for the case that will occur once in a blue moon - though hopefully never.

People of integrity and intelligence find themselves in an unenviable position. They feel they have uncovered something and that they have acted in the public interest. They are slapped down, intimidated, isolated, retaliated against, demoted, threatened - either overtly or covertly, by omission or commission - or, worse, they feel they have to suffer a tyranny of silence and be victims for the next five or 10 years, never asking for a promotion in case they are slapped down, too frightened to point out the obvious. The corruption, waste or maladministration simply continues.

The possibility cannot be ruled out that at some stage even venerable institutions like the Independent Commission Against Corruption, or investigating authorities such as the Auditor-General or Ombudsman, might get it wrong. I want these amendments to be available to provide for those instances. To hopefully allay some of the Government's fears, I refer to the minority report of the legislation committee. The committee wanted to ensure that a disclosure to the media must be a last resort. Whistleblowing is no joke; going to the media is no joke. People cannot afford to ruin the reputation of a third party unless they are certain of what they are doing. The allegation has to be true in all material respects. If whistleblowers sincerely and genuinely believe they have got it right but happen to be wrong, that is no excuse. They have to believe that what they are doing is in good faith, and they have to be substantially correct in what they are alleging.

Allegations should not be knocked out on a technicality because the time or date is slightly wrong; they should not suffer because they have slightly mixed them up or the access to information may be imperfect; because not every piece of the jigsaw is available and although they are basically correct there are a few inaccuracies around the edges. The test of being substantially correct or being true in all material respects is to ensure that the core of the evidence is correct. However, if an allegation is erroneous because of a person's incapacity to be in possession of all the facts it should not be knocked out. The committee also submitted that whistleblowers had to have gone through all the hoops.

In return, whistleblowers are given protection from defamation if they meet all the criteria. The media outlet that chooses to print, disclose, amplify, or screen is not protected from defamation under the Opposition's amendments. It has to accept that responsibility. The Opposition is not making the media judge and jury. In case the whistleblowers have it wrong, the so-called innocent third party against whom allegations have been made will have a right of recourse to take a defamation action in the courts. Would the Minister rather sue the media, or an individual who does not have two coins to rub together? I would prefer to sue the media; we all would.

The amendment makes it difficult for whistleblowers to go to the media until they have first passed through all the hoops, and the media can still be sued. The ordinary laws of defamation will hold. It is a compromise between the rights of whistleblowers and the rights of the third party, who may be mistakenly or innocently victimised by the allegation. I cannot imagine the media printing many defamatory statements, so the interests of all parties have been served. Consequently, I am happy to support the amendments.

Mr D. L. PAGE (Ballina) [9.16]: I should like to respond to a few of the points made by the honourable member for Port Jackson, who made a valuable contribution to the debate. The legislation in its current form with these amendments will not prohibit people from going to the media if they have been to the ICAC and elsewhere under protected disclosure. The Government has said whistleblowers will not have the right of parliamentary privilege if the complaint has been investigated by the ICAC, the Ombudsman or the Auditor-General and has been found to have no substance. If they go to the media they do so on the basis of law that is normally available. This amendment would give them parliamentary privilege to go to the media. The Government is not denying people the right to go to the media, but they will go with the normal protection that applies, rather than with this super protection of parliamentary privilege.

The honourable member for Port Jackson also said that the media will not be exempted from defamation proceedings. That is true. Anyone who has ever contemplated defamation action against the media will know that it is an expensive exercise. That is a good reason why the defamation laws in New South Wales need to be reviewed. Nothing in the amendments would prohibit whistleblowers from going to the media; they would be totally protected under these amendments, despite the fact that they have been to the ICAC. The media could run the story in the reasonable knowledge that it is unlikely that they would be taken to court on a defamation action because it would cost $80,000 to $90,000 to get it off the ground. The High Court recently decided a case involving defamation and the rights of people to comment on public policy. People have an implied right under the Constitution to make judgments about public policy and public figures. In a sense, the public figure test is similar to the test in the United States of America. It cannot be assumed that the media will be responsible about whether to publish a protected disclosure made by a whistleblower because they are frightened of being sued.

Page 5041

The effect of the High Court decision, I believe, is that they are unlikely to be sued and know they have far more resources than the average individual. Clause 19(4) provides that a public official must have reasonable grounds for believing that a disclosure is substantially true. The allegations do not have to be true, but there need to be reasonable grounds for believing that an allegation is substantially true. The bill provides woolly definitions, but who will decide whether an allegation is substantially true or that a person had reasonable grounds for believing a disclosure to be substantially true? I ask the honourable member for South Coast to address that question. Clause 19(3)(b) provides that they must have decided to investigate the matter, but not completed the investigation, within six months of the original disclosure being made.

That provision has a real potential difficulty. It would be most inappropriate for a whistleblower to go to the media, say, seven months into an investigation, when the Independent Commission Against Corruption or the Ombudsman was in the final stages of proving corrupt action. If a whistleblower makes a disclosure to the media because the six-month time limit is up, the efforts of the ICAC or other investigating authority would be completely thwarted. As the honourable member for Port Jackson said earlier in her qualitative remarks, ICAC expressed concern that it is not always in the best interests of an investigating authority if disclosures to the media are made before investigations are complete. Some investigations cannot be completed within a six-month period. Disclosures could be made which would be detrimental to the public interest.

Mr CRITTENDEN (Wyong) [9.23]: I want to address the issue raised by the honourable member for Ballina that a whistleblower would still be able to go to the media irrespective of the result of the amendment. The whistleblower could go to the media, but the crucial question is whether the whistleblower would get protection. That is the crux of the matter. Whistleblowers who go to the media in the first instance, after going through all the hoops mentioned by the honourable member for Port Jackson, would not know whether they are protected from defamation. The committee's dissenting view, on page 19 of the report, is that the test operates after disclosure is made, and that a person cannot be certain at the time of media disclosure that protection will be provided. A person making a disclosure will be in the same position as a person seeking to justify a defamatory statement. That is appropriate in view of the capacity of such disclosure to harm an individual.

Irrespective of arguments advanced by the honourable member for Ballina, whistleblowers will not know, at the stage when they go to the media, whether they are protected from defamation. Disclosures made by whistleblowers will have to be substantially true. A whistleblower would have to be pretty tough and have great inner strength to go through all the hoops set out in the proposed legislation and say, "I am still right. I know I am right. I have got the evidence and I am prepared to run with what I have got". In my second reading contribution I pointed out the case of an employee who in the first instance was threatened with defamation. Thankfully, the proposed legislation will overcome that problem. The Opposition's amendment seeks, in the case of institutional failure, to overcome the problem faced by a person who has all the information and who has the right to go forward to the media as a last resort. It is a last resort test and does not arise at first instance. People have to meet the criteria. The honourable member for Ballina mentioned the six-month rule. In the proposals of the honourable member for South Coast and the honourable member for Ashfield there is a six-month requirement, but in the circumstances the reasonable person test would have to be given a fair go. If ICAC or the other investigating authorities, the Ombudsman or the Auditor-General, come forward and say they are proceeding but cannot wrap it up in a six-month period, that problem can be overcome.

I turn to institutional failure, where the whole system has broken down. Systems can break down. An employee of a Government department who finds corruption there can go to ICAC in the first instance and pass all the tests. Suppose ICAC - though this would not happen - investigates a matter in the first instance and finds nothing wrong, that there is no problem, but the whistleblower still perceives a problem, has the goods and decides to again say there is a problem. That person should be given the option of going back to the media and allowing the facts to emerge. Bureaucracies are little clubs. In the "Spectrum" section of last Saturday's Sydney Morning Herald an article appeared about how the public service in Canberra used to run and how it runs now. In November 1993 an article appeared in the Bulletin about whistleblowers, indirectly. We all know how the public service runs. When there is institutional failure, when people go to the Commonwealth Club or elsewhere and have a discussion and say "Look, we can keep this under wraps and make sure nothing comes out", that is when real problems occur.

Those who legitimately believe there is major corruption in an organisation should not be jeopardised, because they will not know they are protected until after they have come forward. Many whistleblowers would have to be tough to get to that stage. Most would not be able to mount a case unless they had fair grounds for believing what they said was true. This thing has been around like a smelly cat for over 18 months. The legislation committee reported on 30 June 1993. Opposition members, including myself, the honourable member for Port Jackson and the honourable member for Bligh, issued dissenting recommendation No. 4. The report was in the Parliament on 30 June 1993, and that has been our position consistently since then. It is no secret that we are addressing this critical issue at the death knell. On 9 March 1994 the honourable member for South Coast was reported in the Sydney Morning Herald as follows:

We are saying that if a public servant has used the proper channels to expose waste or corruption and nothing has been done, then they should be able to go to the press without fear of reprisals.

Page 5042
As the honourable member for South Coast commented, the Government's bill allows whistleblowing so long as it is done in a soundproof room. We must protect the system and the ordinary person who blows the whistle. Without this proposed amendment the bill is substantially deficient.

Mr FRASER (Coffs Harbour) [9.30]: The honourable member for Wyong spoke about institutional failure. The assumption of the Australian Labor Party, and possibly the honourable member for South Coast, is that institutions fail. At times they possibly do but following the advent of the Independent Commission Against Corruption, the Ombudsman and other bodies, the Government, all public servants and anyone acting in the public service are accountable for their actions. The Opposition has indicated publicly and to this House that if it were ever to gain office it would abolish the ICAC. It is nothing more than a smokescreen to claim institutional failure of a body that the Opposition wants to see removed.

The honourable member for Port Jackson asked who would the Opposition rather sue? If a person is defamed in the media, would the Opposition prefer to sue the media or an individual? Obviously the media have more money than an individual - or so one would assume - and we would all love to sue the media. How many times has a local or metropolitan newspaper reported statements that cannot be backed up, defamation action has been taken by the individual against the newspaper and a retraction has been printed some days later? The retraction is never on the front page and is never as big as the original headline; it is always printed on page 5, page 7 or page 12. In the meantime, the individual has suffered personal damage and a loss of reputation that can never be regained.

No matter how strongly one may say that whistleblowers must be protected, fallacious arguments can be put forward by whistleblowers who do not like their bosses because of the way they part their hair or the way they wear their tie. Those people want to run the argument through the Ombudsman, through the ICAC, everywhere, and if no case is found proved, they want to be able to go to the media. Instead of reporting the news, the media make the news and, as the honourable member for Port Jackson said, the media are sued for defamation. The media have access to large amounts of money, to Queen's Counsel and to legal aid; the average person is without that access, is intimidated and accepts the page 12 retraction.

At the end of the day reputations and careers are ruined, perhaps as a result of fallacious argument. This amendment provides protection to the whistleblower who seeks to make fallacious statements to try to destroy someone for personal reasons. Bureaucrats and public sector employees are doing their jobs but may have a personality clash or may not have a personality that attracts support and loyalty from staff. The problem arises when those people are maligned in the public arena. This amendment will guarantee protection to a person who wants to make such claims on the understanding that that person will be in no way accountable.

What is the normal procedure for the media? A newspaper runs the claim on the front page, makes a lot of noise, ruins the reputation of the person concerned and at the end of the day will only refer it for investigation to a body such as the ICAC or the Ombudsman. The claim is reinvestigated, disproved once more and the person's reputation is shot. I am surprised that the honourable member for South Coast proposes such an amendment. Over many years prior to my becoming a member of Parliament he made many statements under privilege in this House. Yet now he says it should be possible for those statements to be made publicly, knowing that the person who makes such a statement will be protected from any recourse, apart from the flimsy argument about who to sue put forward by the honourable member for Port Jackson.

I cannot support this amendment; it is a form of justice gone mad. It is an argument put forward by the Independents and the Labor Party for political gain, and nothing else, to try to protect whistleblowers - I do not say all whistleblowers because in some instances they need protection. Unless they are given some protection, there will not be accountability in the public service. We must ensure that a whistleblower cannot make a fallacious statement and ruin someone's reputation for the sake of personal grievance. This amendment will do just that. I urge the Committee not to support the amendment. Any further arguments put forward by the Opposition or the honourable member for South Coast cannot support this amendment, as it leaves the individual too exposed.

Mr HATTON (South Coast) [9.35]: I thank honourable members who have contributed to this debate. I have considerable respect for the honourable member for Ballina, for his sincerity and for his work on the committee. I should like to make a couple of points. All citizens have the right to approach a member of Parliament, but public servants and former public servants really know what happens. If the amendment is opposed those people will be singled out, because they run the risk of losing their jobs, or other forms of discipline, punishment or vilification simply because they are public servants who have approached a member of Parliament. That is not acceptable.

The honourable member for Ballina agreed that the Ombudsman, the ICAC, the Auditor-General and other such institutions - he may not have mentioned them all - occasionally get it wrong. As the honourable member for Port Jackson rightly pointed out, that is an excellent reason for a person consulting a member of Parliament. Those organisations may have undertaken thorough investigations, and I refer to Eddie Azzopardi? Three coronial inquests were conducted before that man was able to show that the first two inquests were wrong, that a policeman had acted corruptly, and that policeman ended up in gaol. Eddie Azzopardi was right. The organisations that were supposed to look after truth and justice were wrong, and wrong on two occasions.

It was interesting to hear the honourable member for Coffs Harbour defend the ICAC when one considers attacks by National Party members on the
Page 5043
ICAC over the north coast and Roden inquiries! A public official can adopt a backdoor approach by speaking to another person, who then approaches the member of Parliament. That member of Parliament will then expose the matter and, of course, the public servant is not put at risk. If the public servant goes direct to the member of Parliament, that member of Parliament can protect his source; but if whistleblowers choose to be open, honest, upfront and courageous, they ought to have the same right as everyone else in this country to approach a member of Parliament. Let me give a classic example. Possibly 2½ years ago I raised a cosy arrangement between the Water Board and the computer company IBM, involving more than 1,000 personal computers still in storage, brand new, never been unwrapped but in respect of which the Water Board was paying maintenance contracts.

Somewhere between $12 million and $15 million worth of public funds were wasted on computer software, computer hardware, and computer programs, and IBM was actually designing the protocol for the purchase of computers by the Water Board. I raised that matter in this House. That material was given to me by an internal auditor from the Water Board. He had gone to the general manager of the board, but nobody wanted to know him. What did the Minister do? I raised the issue publicly because the internal complaints system had not worked, and the Minister rightly and responsibly undertook an investigation and proved that what the internal auditor was saying was correct. That arrangement would never have hit the light of day if that person had not raised it.

The simple fact is that the action taken was very effective, but it did not protect the whistleblower. The whistleblower is now in private enterprise. That person, who was trying to save millions of dollars of taxpayers money and had exposed a fraud worth a maximum of $15 million, was given the push very smartly. He was vilified. What did he do? He did his job. Why all this passionate opposition to the media? The media are the fourth estate. The media, despite all their faults, do a magnificent job in protecting the public interest and the interests of the individual. Under the proposed amendment the complaint must be substantially true. To answer the question raised by the honourable member for Ballina, the court will be the last arbiter of whether it is substantially true. But will all of these things go to court so readily? Will it be a lawyers' feast? I do not believe so, for the following reasons: the Government and or the department would be most unwise to go to court and rehash the whole issue, particularly if there is some hint of scandal, incompetence or whatever.

The argument put forward by the honourable member for Ballina overlooks the fact that the whistleblower will have to go through the hoops. He will have to go, through the senior officers in the department, to the Independent Commission Against Corruption and or the Ombudsman and or the Auditor-General, so it would be generally known whether or not the matter is substantially true. If the whistleblower, as Eddie Azzopardi did, feels in his own heart that the matter is true and he has the courage, then let him go to the member of Parliament. If there is a court case as to whether or not the matter is substantially true, and he chooses not to go to a member of Parliament but to the court system, then he has to provide his own resources, seek legal aid or have the support of the Public Service Association. Though the bill has imperfections, we should give public servants the same rights as ordinary citizens to use the avenue of a member of Parliament, to be protected persons, and consequently not have to run more risks than citizens who are not public officials, such as losing their jobs, being vilified or foregoing opportunities of promotion, et cetera.

Question - That the amendment be agreed to - put.

The Committee divided.

Ms Allan Mr Martin
Mr Amery Ms Meagher
Mr Anderson Mr Mills
Mr A. S. Aquilina Ms Moore
Mr J. J. Aquilina Mr Moss
Mr Bowman Mr J. H. Murray
Mr Clough Mr Nagle
Mr Crittenden Mr Neilly
Mr Doyle Ms Nori
Mr Gaudry Mr E. T. Page
Mr Gibson Mr Price
Mrs Grusovin Dr Refshauge
Mr Harrison Mr Rogan
Ms Harrison Mr Rumble
Mr Hatton Mr Scully
Mr Iemma Mr Shedden
Mr Irwin Mr Sullivan
Mr Knight Mr Thompson
Mr Knowles Mr Whelan
Mr Langton Mr Yeadon
Mrs Lo Po'
Dr Macdonald Tellers,
Mr McManus Mr Beckroge
Mr Markham Mr Davoren

Mr Armstrong Mr O'Doherty
Mr Baird Mr D. L. Page
Mr Beck Mr Peacocke
Mr Blackmore Mr Petch
Mr Causley Mr Phillips
Mr Chappell Mr Photios
Mrs Chikarovski Mr Richardson
Mr Cochran Mr Rixon
Mrs Cohen Mr Rozzoli
Mr Cruickshank Mr Schipp
Mr Debnam Mr Schultz
Mr Downy Mrs Skinner
Mr Fraser Mr Small
Mr Glachan Mr Smith
Mr Hartcher Mr Souris
Mr Hazzard Mr Tink
Mr Humpherson Mr West
Dr Kernohan Mr Windsor
Mr Kinross Mr Zammit
Mr Merton Tellers,
Mr Morris Mr Jeffery
Mr W. T. J. Murray Mr Kerr

Page 5044

Mr Carr Mr Collins
Mr Face Mr Fahey
Mr Hunter Mr Longley
Mr McBride Ms Machin

Question so resolved in the affirmative.

Amendment agreed to.

Clause as amended agreed to.

New clause 19

Mr HATTON (South Coast) [9.53]: I move:

Page 8. After line 9, insert:

Disclosure to a member of Parliament or journalist

19.(1) A disclosure by a public official to a member of Parliament, or to a journalist, is protected by this Act if the following subsections apply.

(2) The public official making the disclosure must have already made substantially the same disclosure to an investigating authority, public authority or officer of a public authority in accordance with another provision of this Part.

(3) The investigating authority, public authority or officer to whom the disclosure was made or, if the matter was referred, the investigating authority, public authority or officer to whom the matter was referred:

(a) must have decided not to investigate the matter; or

(b) must have decided to investigate the matter but not completed the investigation within 6 months of the original disclosure being made; or

(c) must have investigated the matter but not recommended the taking of any action in respect of the matter; or

(d) must have failed to notify the person making the disclosure, within 6 months of the disclosure being made, of whether or not the matter is to be investigated.

(4) The public official must have reasonable grounds for believing that the disclosure is substantially true.

(5) The disclosure must be substantially true.

I do not want to delay the Committee, but I simply want to say that I share the concerns of members of the Australian Labor Party about clause 19(2)(d). That matter may be reconsidered in another place. Surely any problems that the Government might have had have been clarified by this amendment. The Government should be able to agree to this amendment, which states that a disclosure must be substantially true and that a public official must have reasonable grounds for believing that a disclosure is substantially true. An authority must take reasonable action if a public official has made a disclosure to an investigating authority, public authority or officer of a public authority in accordance with other provisions in the Act. Surely, after doing all that, the person concerned should be protected under the Act. That person should be able to go to a member of Parliament or to a journalist and retain that protection.

Mr D. L. PAGE (Ballina) [9.56]: I am disappointed that the honourable member for South Coast has not addressed many of the concerns that I have raised tonight. I ask him in particular to address the relevance of disclosures to the media with the protection that is afforded under the Act as opposed to the previous situation that applied. It is true that the only avenue available to Azzopardi was for him to go to the media. People making disclosures are now protected, which was not the case before. There is no need now for them to go to the media as a last resort. The equality of rights of an accused and an accuser was referred to by Professor Finn, who said that the interests of a number of people were involved in relation to whistleblowers. Not only should whistleblowers have a right to protection; the person against whom the whistle is blown, whether it be an institution or an individual, should have equal protection. The question of the media not having investigative powers has not been addressed. The media often make a one-day wonder of an issue that is then referred back to the investigative authority. The media are not really equipped to carry out the sort of investigation that I think the honourable member for South Coast would like to see available. Another matter that is causing me considerable concern is the definition of "maladministration" in clause 11(2), which states:

For the purposes of this Act, conduct is of a kind that amounts to maladministration if it involves action or inaction of a serious nature that is:

(a) contrary to law; or

(b) unreasonable, unjust, oppressive or improperly discriminatory;

That is an extremely wide definition. I put it to honourable members that there would not be one public servant in New South Wales who would not believe at some stage - no matter what the political persuasion of the government of the day - that a policy decision made concerning health or education was unreasonable. This amendment will enable public servants to go to the media, after having gone to the ICAC or other investigating authority, if the investigating authority said, "You are talking a load of nonsense. The Government has every right to implement policy A or B as it is the elected government". The public servant might say, for example, "I do not care about that; it is maladministration and it is unreasonable. I think it will lead to privatisation of the health system and I think it is unreasonable". We could well find ourselves faced with such a situation.

This amendment will enable such a person to make a disclosure in the media with protection similar to that of parliamentary privilege and there is not a damned thing that anybody will be able to do about it. The amendment has a number of problems associated with it. The definition of "maladministration" is too wide. I would appreciate it if the honourable member for South Coast could address those issues. As I indicated previously, I take the legislation very seriously. I support good legislation, but these amendments leave many questions unanswered, and for that reason I cannot support them.

Mr WHELAN (Ashfield) [10.01]: The honourable member for Ballina confirmed the concerns I raised in my speech at the second reading stage. However, as impaired as the bill may be, it is the Government's bill and he, as a member of the Government, is bound to accept it.

Page 5045

Mr D. L. Page: But you are tacking on something very specific at the end.

Mr WHELAN: That is so, but the honourable member omitted to mention that it refers to conduct or inaction of a serious nature, so the amendment seeks to impose a higher standard. The Independent Commission Against Corruption Act refers to inaction, but it does not refer to inaction of a serious nature. The point raised by the honourable member is valid. However, it is the Government's bill, and far be it from me to suggest that the Government should not be promoting higher standards. Clause 31 of the bill provides for a joint review committee of the Parliament. The Opposition had foreshadowed moving amendments similar to those moved by the honourable member for South Coast, but I am pleased that the position has changed in relation to clause 19(4), which provides that the public official must have reasonable grounds for believing that the disclosure is substantially true and that the disclosure must be substantially true. The amendments proposed by the honourable member for South Coast are important.

However, two matters in relation to paragraphs (b) and (d) in proposed new clause 19(3) concern me. It may be that those fears will be allayed when the bill goes to the upper House for reconsideration. There will be a time when a major investigation will be carried out by one of the public authorities or investigating authorities - perhaps the Independent Commission Against Corruption. It may be that the complainant is not advised by the Independent Commission Against Corruption within a reasonable period - whether that period is defined as six months or otherwise - and the public body might not be examining the complainant's views because they might be part of a larger investigation.

A rider may have to be added to proposed subclauses (3)(b) and (d) to cover such a situation - to indicate that it is part of a wider inquiry and that such examination at that stage would jeopardise the disclosure of information. However, I largely support the amendments and indicate to the honourable member for South Coast that we will look at proposed subclauses (3)(b) and (d) to ascertain whether it is appropriate for a suitable amendment to be drafted and moved in the upper House.

Mr HATTON (South Coast) [10.04]: The honourable member for Ballina and I are going to have to agree to disagree, each for our own good reasons. The Azzopardi example showed that the investigating authority, in this case the police and the courts, got it wrong on two occasions. Azzopardi was not a public servant. I am sure that the honourable member for Ballina would agree that the ICAC, the Auditor-General and the Ombudsman are not perfect. They will not get it right all the time. Because of work pressures they may decide not to investigate. With regard to the investigative procedures of the media, first, the media are vehicles for reporting what is said in the Parliament and, second, some sections of the media choose to investigate and are vehicles for exposure in their own right.

The point is well taken that it adds to the force of that exposure if they can report what a member of Parliament said and be covered by a qualified privilege if the report is accurate. That is the way the Parliament works. If the member of Parliament decides to expose what has been said to him or her by a public servant, that is a fair decision. All the remarks I made earlier in debate on earlier amendments apply in this debate. But if the department has not investigated thoroughly, if the ICAC, the Ombudsman or the Auditor-General have got it wrong in the opinion of the complainant, how is the matter raised? How does one ensure that somebody has another look at it? It is raised in the Parliament. That is what happens all the time.

I would like a dollar for every time I have questioned an investigation by the police, raised the matter in the Parliament, had it reinvestigated either by the police or another authority, been vindicated and shown that the police have either been wrong or not diligent. For example, the motion relating to paedophilia would not be before the House if some members of Parliament felt that the ICAC would investigate or is investigating paedophilia in a way that will ensure a thorough and unbiased investigation. I refer also to the complaints made by Sergeant Kim Cook about his treatment by the ICAC, and the complaints by members of the National Party about their treatment by Commissioner Roden of the ICAC.

Such authorities can get it wrong because individuals working for them are incompetent, lazy or have been got at. What if the public servant is an employee of the Ombudsman? What if the public servant is an employee of the Independent Commission Against Corruption? They are running grave risks because of the secrecy provisions, but they may have to run those risks. To reveal something of vital importance to the public interest of the citizens of New South Wales they may have no alternative but to go to the Parliament. But the conduct must be of a serious nature. It has to be contrary to law. It has to be unreasonable, unjust, oppressive or improperly discriminatory. I support that wide definition. Something that is unreasonable or unjust or oppressive or improperly discriminatory can be extraordinarily important to the public servant involved and to the business person who is being discriminated against or treated unjustly or unreasonably, especially if the information is, as clause 11(2)(c) provides, based wholly or partly on improper motives. I am very comfortable in moving the amendment and commending it to the Committee.

Mr D. L. PAGE (Ballina) [10.10]: I wish to make it clear to the honourable member for South Coast, as we are obviously going to agree to disagree on so many things, that I could not possibly support any restriction on the rights of members of Parliament to bring before the House matters raised by their constituents or anyone else. This bill will preserve that right. My problem is not with members of Parliament raising matters in the House, that has
Page 5046
never been my problem and it never will be. My difficulty is with the whistleblower who has been to the normal investigative authorities and then goes to the media without going through a member of Parliament. I want to make it perfectly clear that I have no problem with someone going to a member of Parliament.

Question - That the amendment be agreed to - put.

The Committee divided.

Ms Allan Mr Martin
Mr Amery Ms Meagher
Mr Anderson Mr Mills
Mr A. S. Aquilina Ms Moore
Mr J. J. Aquilina Mr Moss
Mr Bowman Mr J. H. Murray
Mr Clough Mr Nagle
Mr Crittenden Mr Neilly
Mr Doyle Ms Nori
Mr Gaudry Mr E. T. Page
Mr Gibson Mr Price
Mrs Grusovin Dr Refshauge
Mr Harrison Mr Rogan
Ms Harrison Mr Rumble
Mr Hatton Mr Scully
Mr Iemma Mr Shedden
Mr Irwin Mr Sullivan
Mr Knight Mr Thompson
Mr Knowles Mr Whelan
Mr Langton Mr Yeadon
Mrs Lo Po'
Dr Macdonald Tellers,
Mr McManus Mr Beckroge
Mr Markham Mr Davoren

Mr Armstrong Mr O'Doherty
Mr Baird Mr D. L. Page
Mr Beck Mr Peacocke
Mr Blackmore Mr Petch
Mr Causley Mr Phillips
Mr Chappell Mr Photios
Mrs Chikarovski Mr Richardson
Mr Cochran Mr Rixon
Mrs Cohen Mr Rozzoli
Mr Cruickshank Mr Schipp
Mr Debnam Mr Schultz
Mr Downy Mrs Skinner
Mr Fraser Mr Small
Mr Glachan Mr Smith
Mr Hartcher Mr Souris
Mr Hazzard Mr Tink
Mr Humpherson Mr West
Dr Kernohan Mr Windsor
Mr Kinross Mr Zammit
Mr Merton Tellers,
Mr Morris Mr Jeffery
Mr W. T. J. Murray Mr Kerr

Mr Carr Mr Collins
Mr Face Mr Fahey
Mr Hunter Mr Longley
Mr McBride Ms Machin

Question so resolved in the affirmative.

Amendment agreed to.

New clause agreed to.

Clause 20

Mr HATTON (South Coast) [10.18]: This amendment is a consequential amendment. Therefore, the matters raised in debate on the previous amendment relate also to this amendment. I move:

Page 9, clause 20, lines 2 and 3. Omit "or public official", insert instead ", public official, member of Parliament or journalist".

Mr HARTCHER (Gosford - Minister for the Environment) [10.19]: The Government does not agree to the amendment. The memorandum of understanding does not provide that the protection of whistleblower legislation will extend to media disclosure. The Government has acted in good faith in bringing the legislation before the House.

[Interruption]

The honourable member for South Coast may say "Rubbish" sotto voce, but the memorandum of understanding does not provide for the protection to be extended to media disclosure, and he must acknowledge that the Government has acted in good faith by introducing this legislation. The Government supports the legislation; that is why it has introduced this bill. There is no justification in the argument that the Government is not serious because it has not agreed to these amendments. The legislation committee was not united on this point. A majority of the committee found against the concept that the honourable member for South Coast and the honourable member for Ashfield have argued for tonight. The committee found against it for the clear reason - which has not been addressed by those arguing these amendments tonight - that the whistleblower legislation is designed in the public interest. It is designed to bring to the attention of the public matters that might otherwise not be properly ventilated or given attention. The focus should be on the veracity or the nature of the allegations and not on the interests of the person bringing the complaint. That fundamental was argued in the legislation committee and is being argued tonight. That significant point has never been addressed.

Mr Whelan: Where have you been for the last two hours?

Mr HARTCHER: I have been listening to the honourable member for Ashfield and the honourable member for South Coast, and I have still not heard those points addressed. I am now giving the honourable member the opportunity to address them,
Page 5047
and I will be interested to hear if he does so. We have been arguing the requirements implicit in the memorandum of understanding and the focus of this legislation. We have not been arguing that the Government is trying to emasculate the legislation; we have been arguing whether the legislation would maintain a correct and proper focus or whether it would be a device whereby people could run to the media. Why would two such excellent representatives be in the House at 10.25 p.m. unless they can see great opportunities in the weeks, months and possibly years ahead. The Government will continue to resist this proposal. I give notice that if the amendment is successful and the report is adopted, the Government will seek to reverse it in another place.

Mr HATTON (South Coast) [10.22]: When the memorandum of understanding was signed with the Government that whistleblowers would be protected, no-one in their wildest imagination would have believed that it would not extend to a public official going to the media or to a member of Parliament. The Government is saying people can blow the whistle but they cannot tell anyone other than established organisations such as the ICAC, the Ombudsman and the Auditor-General. If those organisations decide not to investigate or they get the investigation wrong and the department does not handle the matter to the whistleblowers' satisfaction, they do not have the democratic right to go to a member of Parliament or to the press without putting their jobs at risk.

The Minister for the Environment spoke about the Government acting in good faith. Good faith is signing a memorandum of understanding knowing that whistleblowers, after going through the internal mechanisms, can go through the external mechanisms and then to a member of Parliament or the media and still be protected. The Government introduced a staggering proposal 12 months ago that whistleblowers can be protected, but not if they go to the media or to a member of Parliament. Because some aspects of the charter of reform were not written into black-letter law and did not spell out every clause, the Government is interpreting it the way it wants to interpret it.

The Minister said the whole purpose of the bill is to bring the matter to public attention, but a person cannot do that by way of a member of Parliament or the media and be protected. Everybody else in New South Wales can go to a member of Parliament, but public servants in a position to know have to put their job at risk, and have to risk vilification, lack of promotional opportunities or discipline because they exercise that right. The Act provides also that a disclosure must not be vexatious. In their minds whistleblowers are doing their public duty to the citizens of New South Wales as true public servants should.

Amendment agreed to.

Clause as amended agreed to.

Bill reported from Committee with amendments, and report adopted.