Inquiry into the Protection of Public Sector Whistleblower Employees

The Hon. TREVOR KHAN [2.57 p.m.]: I move:

1. That a select committee be appointed to inquire into and report on the effectiveness of current laws, practices and procedures in protecting whistleblower employees who make allegations against government officials and members of Parliament, but not in relation to actual or alleged conduct of any particular person which involves matters which are the sole cognisance of the Legislative Assembly.

2. That, notwithstanding anything contained in the standing orders, the committee consist of six members, comprising:

(a) two Government members,

(b) two Opposition members, and

(c) two crossbench members.

3. That, notwithstanding anything contained in the standing orders, at any meeting of the committee, any four members of the committee will constitute a quorum.

4. That the committee report by the first sitting day in September 2008.

I note the very considerable cooperation I have received from all crossbenchers, particularly from the Hon. Robert Brown, Reverend the Hon. Fred Nile and the Greens. They have all shown great insight with regard to this matter. Reverend the Hon. Nile will move amendments to the motion, and I indicate that the Opposition will not oppose those amendments.

The motion seeks to establish a select committee charged with the task of examining how, why and when the current system has failed to protect whistleblower employees. Time and again the people of New South Wales have seen an unwillingness on the part of potential public service whistleblowers to come forward because they are afraid that such action will have a negative impact on their career and life. It is clear that on occasion whistleblowers have suffered, or they believe they have suffered, as a result of exposing certain matters to the public. The inadequacy of the current legislation can be demonstrated by reference to four areas of government employment: New South Wales Health, the State Rail Authority, the Department of Education and Training and the Ambulance Service of New South Wales. Members might know of instances in other agencies, but they can be left to another day.

Parliamentary committees conducting inquiries into health services in New South Wales have heard evidence from nurses who feared retribution if they made allegations. In fact, some nurses have asked to give evidence in camera because of their fears. It is not simply a matter of obtaining salacious evidence. The evidence of those nurses is important because that fear might prevent them from speaking up and that could result in severe harm to the public. If their evidence is not heard, people might be unable to receive treatment or adequate treatment. People could die or, in some cases, suffer permanent psychological damage as a result of distress arising from lack of or inadequate treatment. We all know of cases in which that has happened in recent times, including at Royal North Shore Hospital. Plainly, whistleblower legislation that protects the nursing profession from fear of retribution will not only result in better treatment but it will also ensure that the public is treated properly.

Systemic corruption has existed for years in some parts of the State Rail Authority. Of course, not all employees of the authority have willingly condoned that corruption. Indeed, the reverse is true. We know that many employees, having witnessed corruption, have been tortured by what they have seen but have been unwilling to disclose it. That is another demonstration that this State's whistleblower legislation is not tough enough or adequate to ensure that such people are encouraged to come forward and that poor service delivery and corruption are stamped out. There have been other examples in the State Rail Authority of people being aware of inadequate service but not being prepared to disclose it.

Two of those examples have led to great tragedies: the terrible rail accidents that occurred on the Blue Mountains line and at Waterfall. Both of those tragedies were not spontaneous accidents but the result of endemic problems in the operation of State Rail—endemic problems that were known to many people within the organisation, yet those people were unwilling to come forward. Sadly, that resulted in great tragedy, loss of life and permanent injury to many people. That style of accident, that style of inadequacy of service that has existed, that style of failure of good, hardworking people within State Rail to come forward will be reduced if we have appropriate and effective whistleblower legislation.

In the education field time and again members of our teaching profession, principals in our schools, know of the inadequacy of the infrastructure that exists in our schools, of poor staffing levels, of maintenance backlogs and of other difficulties. Yet they too have felt a fear, an unwillingness to come forward because of a concern that to do so would result in negative impacts upon their careers and futures, as well as significant stress and depression as a result of overzealous inquiries. Those few examples, I would submit, demonstrate the appropriateness of an inquiry taking place at this stage.

Reverend the Hon. FRED NILE [3.01 p.m.]: I congratulate the Hon. Trevor Khan for his diligence in pursuing this important issue of setting up a select committee to look into the effectiveness of the current laws to protect whistleblowers. He has given some examples where the legislation does not appear to be giving comfort to potential whistleblowers. I encountered this when I chaired the inquiry into the Royal North Shore Hospital. There were nurses who finally agreed to give evidence but they insisted that the evidence be given in camera. I understand some nurses were not even prepared to give evidence in camera. There were references to some individuals at the hospital who employed bullying tactics towards the nurses, which we hope has now been rectified. Those attitudes can intimidate public servants into not appearing before committees or, in their normal duties, prevent them from reporting matters that should be reported, thus making them whistleblowers—without using that word in any way critical of the person giving the information. There is a culture in Australia that looks down on whistleblowers—you don't dob in a mate—but in these serious cases employees have no option but to make a report against an individual, a department or whatever it is that is not carrying out its role efficiently.

A public servant contacted me and said that a lot of heavy equipment belonging to a government department had been sitting in a paddock for two years, as though it had been forgotten. He sent me the information, which I passed on, on a sheet of paper by which he could be identified. He rang me and said, "Please make sure you remove any identification from that piece of paper", in case someone saw it and could work out who the employee was. People have this fear. Whether it is justified in every circumstance, we do not know, we are not in their shoes. The motion of the Hon. Trevor Khan seeks to set up a select committee to determine whether the current system is working.

As honourable members know, we have the Protected Disclosures Act. When considering the honourable member's motion for a select committee, I remembered I was a member of the Committee on the Independent Commission Against Corruption, which conducted a review of the legislation in 2006. The committee prepared a report and a number of recommendations. The Government is still considering some of those recommendations and has implemented others. We noted that the Protected Disclosures Act 1994 endeavours to provide this protection for public officials. I am not sure whether all public officials understand its powers. It is intended to protect public sector employees who make allegations against public authorities or public officials. The penalty for someone who takes detrimental action against a whistleblower is a fine of $5,500 or one year in jail or both.

Whistleblowers can also be awarded damages for unfair dismissal or can take action at common law. All government agencies are expected to comply with the provisions of this Act but we know with human nature breakdowns occur. There is also the provision that if someone is not happy with the way they have been treated they can make a complaint to the Ombudsman or they can pursue legal action. However, I assume that most public servants would be reluctant to engage in such action because of the tremendous expenditure that would be required. The Protected Disclosures Act 1994 requires that there be reviews of the Act. That is one of the roles of the Committee on the Independent Commission Against Corruption, which it endeavours to carry through.

The motion moved by the Hon. Trevor Khan is a re-drafted motion. As members know, we have had two or three motions in the past dealing with this issue, and now we have what has become a pretty simple, straightforward motion. It now comes down to an inquiry into the whistleblower protection legislation for employees who wish to make allegations against government officials, members of Parliament and any others who are involved in their employment. As a member of the joint parliamentary Committee on the Independent Commission Against Corruption, I believe it would be more effective for such an inquiry to be conducted not by a select committee but by our joint committee, which has as one of its roles to review the protected disclosures legislation.

Members on both sides of the House and members of the crossbench are anxious that there be an inquiry. Having served on the Committee on the Independent Commission Against Corruption for many years, I am aware that it is one of the most efficient committees and has a very experienced secretariat. A new select committee will need a whole new secretariat to serve that committee. We already have an experienced secretariat that handles the Committee on the Independent Commission Against Corruption. The committee is also made up of members of both Houses of Parliament and is already very experienced in considering whistleblower legislation. Therefore, I move:

That the motion be amended as follows:

1. Paragraph 1, line 1: Omit the words "a select committee be appointee to" and insert instead "the committee on the Independent Commission Against Corruption which is a joint statutory committee".

2. Paragraph 1, lines 3-5: omit all words after " Parliament".

3. Omit paragraphs 2-4.

4. Insert at the end: "2. That this House requests the Legislative Assembly to agree to a similar resolution."

Paragraph (2) of the amendment will remove from the motion the restriction relating to the Legislative Assembly. The committee is a joint committee with members from both Houses of Parliament. Keeping the restriction would require the wording to state that it could not affect the Legislative Assembly or the Legislative Council. The simplest way is to remove reference to the Legislative Assembly. As the committee is a joint committee, this House has to agree and then a message must be sent to the Legislative Assembly asking it to agree to the resolution.

I have discussed the matter at length with the Hon. Tony Kelly, as the Leader of the Government in this place. He has given me an assurance that if the amended motion is carried, it will immediately proceed to and through the other House before it rises—it will not be delayed—so that the Committee on the Independent Commission Against Corruption can consider the reference and take the necessary action to implement the resolution. The amendment will meet the concerns of members of the House.

The Hon. ROBERT BROWN [3.11 p.m.]: I congratulate the Hon. Trevor Khan on his work. The Shooters Party agrees with the tenor of the motion. I thank Reverend the Hon. Fred Nile for his ability yet again to draft an amendment in line with everyone's wishes. Finally, I repeat the comment made by Reverend the Hon. Fred Nile about the agreement given by the Leader of the Government and will endorse it so that the inquiry can go ahead. I assure all honourable members that the Shooters Party will watch with avid interest as this develops. We hope there are good outcomes to improving the confidence of the people who may wish to come forward with information. We hope that their employment and health can be safeguarded by the legislation being effective. I commend the amendment and the motion to the House.

Dr JOHN KAYE [3.12 p.m.]: I support the motion and congratulate the Hon. Trevor Khan on moving it. Whistleblowing is important and has existed for a long time. The fact that we have given it a name over the past two decades and have institutionalised it within both legislation and the culture of society has been to the benefit of public life and the conduct of government throughout those nations where whistleblowing has become a protected activity. There are three key reasons why societies seek to protect whistleblowing. The first is simply a matter of justice—that is, protecting those who seek to do the right thing from unfair retribution. There is a long and dishonourable history of people speaking out against wrongdoing in both public and private undertakings and then suffering appalling consequences, ranging from physical violence, exclusion from employment, victimisation of their families, social ostracism through to removal from societies entirely. It is simply unjust behaviour. Somebody who seeks to do the right thing should enjoy the protection of society from adverse responses.

The second reason is that obvious benefits flow to society from having malfeasants exposed in this way. I give the example of the space shuttle and exposure of shoddy engineering practices by contractors on the space shuttle that cost five lives in the Challenger disaster and the way in which the engineering processes of the space shuttle from then on were cleaned up. This resulted from two or three whistleblowers who had the courage to stand up. There are direct and measurable benefits associated with individuals having the courage to stand up and speak out. The third social reason for supporting whistleblowing is by way of creating a culture of openness within society. Whistleblowing is an inoculation against malfeasance, where somebody acting to cut a corner or in a way that will have adverse consequences seeks to do so. However, if they know they are being watched and that their co-workers could turn around and say, "You have acted against the public interest", they will be less likely to do so. It is not just about creating a climate of fear; it is about changing the culture of public and private enterprise undertakings to one of openness. It is where the idea of dumping that container of toxic waste, cutting corners on an engineering contract or ripping off a client ceases to exist because of a culture of openness.

There are still far too many examples of bullying against those who seek to expose wrongdoing. Previous speakers have already mentioned a number of examples and the existence of those examples warrants an investigation. I have doubts about using the Committee on the Independent Commission Against Corruption as an inquiry body. It has some complexities associated with it. The role of the committee is to overview the actions of the Independent Commission Against Corruption. We seek to extend its function to overview legislation.

Reverend the Hon. Fred Nile: It is already part of its function.

The Hon. Tony Kelly: We have already done that.

Dr JOHN KAYE: I stand corrected on that and I withdraw that statement. The Greens will not oppose the amendment moved by Reverend the Hon. Fred Nile.

The Hon. PENNY SHARPE (Parliamentary Secretary) [3.17 p.m.]: The Government will support the amendment moved by Reverend the Hon. Fred Nile.

The Hon. TREVOR KHAN [3.18 p.m.]: I thank all honourable members for their contributions to the debate. Again, it has been a productive exercise. The degree of, dare I say, comity on this issue is inspiring.

Question—That the amendment be agreed to—put and resolved in the affirmative.

Amendment agreed to.

Motion as amended agreed to.

Message forwarded to the Legislative Assembly advising it of the resolution.