Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

PUBLIC INTEREST DISCLOSURES BILL 2001 (No. 114)

Dr PATMORE (Bass - Minister for Justice and Industrial Relations - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Speaker, this bill implements a key commitment of the Government to introduce legislation to protect persons disclosing information about improper conduct in the public sector. The bill demonstrates that this Government is serious about the principles of open, honest and accountable government.

People who make public interest disclosures are officers or employees who work in the public sector who make an allegation or divulge information about wrongdoing on the part of another person or organisation. They generally come forward out of a highly developed sense of public duty and personal ethical standards. They can play an important role in protecting the public interest by exposing serious public sector wrongdoing. Ensuring the accountability of public sector agencies and officers for their actions leads to higher standards and performance, and increases public confidence in the public sector. These are all aims that this bill seeks to promote.

In order to encourage people with information about public sector wrongdoing to come forward, the bill will protect public officers who make genuine disclosures from recrimination or other adverse consequences as a result of disclosing the information. It will also establish a robust framework for investigating such disclosures and ensuring that where allegations are found to have substance, rectifying action is identified and taken.

This bill aims to balance competing public policy considerations. Strong protection provisions for persons who make disclosures are balanced by provisions recognising the need for there to be an objective justification for conferring such significant statutory protections and for triggering intrusive investigations. The bill equally acknowledges that the person or body against whom the allegations have been made has a right to be accorded natural justice in the investigatory process and contains safeguards to ensure that these rights are upheld.

I will now briefly outline the bill's main features. The bill allows a disclosure to be made by a public officer who believes on reasonable grounds that a public body or public officer -

has engaged in or is about to engage in improper conduct in their public capacity; or
has taken or is taking or proposes to take detrimental action against any person in reprisal for a protected disclosure.

It also provides that disclosures may be made by a person who has a contract with a public body for the provision of services or goods. Such a person may be in a position to become aware of improper conduct but may be reluctant to disclose that information for fear of reprisals. For this reason contractors who make disclosures are also protected under the bill.

The bill defines 'detrimental action' to include action causing injury, loss or damage; intimidation or harassment; and discrimination, disadvantage or adverse treatment in a person's employment, including the taking of disciplinary action. The bill makes it clear that public interest disclosures are about serious wrongdoing. 'Improper conduct' is defined as corrupt conduct ; or a substantial mismanagement of public resources; or conduct involving substantial risk to public health or safety; or conduct involving substantial risk to the environment. The bill also requires that this conduct would, if proved, constitute a criminal offence; or reasonable grounds for terminating the services of the relevant public officer. 'Corrupt conduct' is also defined to clearly spell out an otherwise extremely broad and vague term.

The consequences of a public interest disclosure investigation are serious for all those concerned. The bill therefore contains filtering mechanisms over and above the requirements of the definition of 'improper conduct' to ensure that the significant protections it offers will only attach to appropriate disclosures and that investigations will be undertaken only where warranted.

To deter the making of false allegations, it is an offence to knowingly provide false information intending that it be acted on as a public interest disclosure. In addition, the Ombudsman and an investigating public body have a discretion not to investigate disclosed matters which are, for example, considered to be trivial, vexatious or misconceived. These provisions will operate to exclude inappropriate disclosures from the scheme.

As indicated earlier, public interest disclosures must be about improper conduct on the part of public officers and/or bodies. 'Public bodies' include government departments, bodies established under an act for a public purpose, State-owned companies, government business enterprises and local councils. The category of 'public officer' spans an even broader range of persons, including members of parliament, councillors, and members, officers and employees of most public bodies. For example, public servants, council employees, teachers, police officers and others.

I will now briefly outline the processes involved in making and dealing with a disclosure. While there are in effect parallel processes for the Ombudsman and a public body to receive, determine and investigate public interest disclosures, the Ombudsman also maintains a significant role in oversighting public bodies in the way they deal with the disclosures. The Ombudsman will prepare guidelines for public bodies to use. He or she will have the power to oversight public body actions and decisions and may take over a matter if necessary. The Ombudsman may also refer disclosures to public bodies for investigation. Persons who are dissatisfied with public body decisions about disclosures may also request that the matters be referred to the Ombudsman for a review of the decisions.

In order to facilitate the making of disclosures, a public officer who wishes to make a disclosure has a choice under the bill as to whom the disclosure is to be made. With two exceptions, disclosures about public officers may be made to either the relevant public body or the Ombudsman. The exceptions relate to disclosures about members of parliament, which must be made to either the President of the Legislative Council or the Speaker of the House of Assembly, and disclosures about members of the police force which must, in the first instance, be made to the Commissioner of Police. Disclosures in relation to public officers who are State Service employees or officers may also be made to the State Service Commissioner. The Ombudsman also receives disclosures about public bodies.

In order to qualify for ongoing protection, a disclosure must not only be about conduct meeting the definition of 'improper conduct', but must also be made to the appropriate person and in accordance with the prescribed procedure. For example, the bill will not shelter a person who makes a disclosure who chooses to go outside the confidentiality framework of the legislation and reveals the information to a newspaper or at a public meeting of the relevant public body. Disclosures may be received anonymously and the bill will not apply retrospectively.

The bill does not intend to negate the functions of the State Service Commissioner and processes of the State Service Act 2000 in relation to officers or employees of State Service agencies. The State Service Commissioner may receive disclosures about State Service officers or employees, and the Ombudsman and public bodies may refer disclosures to the State Service Commissioner if it appears that the disclosure relates to a breach of the Code of Conduct under the State Service Act. The commissioner may decide to deal with such disclosures under the State Service Act. This means that the person who makes the disclosure is protected under this bill, but the disclosure is dealt with under a different legislative regime.

The next step requires the Ombudsman or public body to determine whether or not a disclosure meets the criteria of being a public interest disclosure and therefore gains ongoing protection.

If public officers with information about misconduct are to be encouraged to come forward and not hold back due to concern about the consequences for them, it is vital that interim protection is provided to all those who believe they have a public interest disclosure to make. Otherwise, there is a real danger that genuine persons will be deterred from coming forward by the risk that the Ombudsman or determining body will rule that their disclosure is not protected. Therefore, even where the Ombudsman or a public body decide that the information provided does not amount to a public interest disclosure, the initial disclosure will still be protected. However, protection will cease for any further disclosure of the information.

Once a matter is determined to be a public interest disclosure, the next step is for the Ombudsman or public body to investigate the disclosed matter. The Ombudsman is given similar investigative powers to those set out in the Ombudsman Act. Investigations are private, and while there is no requirement to hold a hearing during the investigation, the Ombudsman may choose to do so. The Ombudsman has the powers under the Commissions of Inquiry Act 1995 to investigate as if he or she was a commission. The Ombudsman or his or her authorised officers may also enter and inspect premises of public bodies and public officers for the purposes of conducting investigations at any reasonable time.

Public bodies will conduct their investigations in accordance with the guidelines established by the Ombudsman, and the Ombudsman will, as already stated, be able to oversight those investigations if necessary. At the conclusion of an investigation by a public body, the body, if it finds that the conduct that was the subject of the investigation has occurred, must take all reasonable steps to prevent the conduct from continuing or occurring in the future and may take action to remedy any harm of loss arising from the conduct. The steps taken may include disciplinary proceedings against any person responsible for the conduct or referral to another authority for further consideration. The public body must also notify the Ombudsman of its findings and the steps taken.

At the conclusion of his or her investigation, the Ombudsman may make recommendations about the action that should be taken including a recommendation that the disclosed matter be referred to an appropriate authority for further consideration - for example, as to whether criminal charges should be laid. The Ombudsman can follow up on the action taken to implement his or her recommendations and may report to Parliament.

The above outlines the processes for dealing with a disclosure. I will now discuss the protection available for persons who make protected disclosures.

Part 3 of the bill sets out a broad range of protections for persons who make a disclosure. A person who makes a public interest disclosure is not subject to any civil or criminal liability or disciplinary action for making that protected disclosure. Public officers who disclose information from within an organisation will often be in breach of a statutory duty to maintain confidentiality in relation to the matter, or in breach of a confidentiality clause in, for example, an employment contract. The bill provides that such confidentiality provisions do not apply to the making of protected disclosures. Therefore, no adverse consequence will flow to the person for having breached the obligation.

A public officer may themself have taken part in the objectionable conduct that they are coming forward about. It is important that the legislation does not inadvertently provide a person with total immunity for their actions when granting them protection for making a disclosure, or it will be open to abuse. The bill therefore provides that a person's liability for their own conduct is not affected by their disclosure of that conduct under the bill.

The bill creates a criminal offence, punishable by two years' imprisonment, of taking detrimental action against any person in reprisal for a protected disclosure. In addition to the criminal offence, there is a statutory right of action in tort for the person who makes the disclosure to sue for damages for reprisals and he or she may apply to the Supreme Court for an injunction or an order requiring the person who has taken the detrimental action to remedy that action. These forms of relief will be extremely useful for the person who, despite the criminal offences created by the legislation, suffers reprisals for coming forward.

Maintaining confidentiality about the identity of the person making the disclosure is critical if people are to be encouraged to speak out about improper conduct. The bill makes it an offence to reveal information received in the course of an investigation into a protected disclosure except for the legitimate exercise of functions under the bill and for the purposes of a limited range of proceedings. Additionally, neither the Ombudsman nor a public body may disclose the identity of the person who made a disclosure, or of the person against whom the disclosure was made, in any report or recommendations under the act.

As foreshadowed earlier, the bill contains special procedures for disclosures about members of parliament which recognise the doctrine of the separation of powers and the fact that MPs are ultimately accountable to the Parliament and the electorate. MPs are public officers and protection will be given to a public officer making a public interest disclosure about them. However, the bill provides for a different reporting and investigative scheme which involves the President of the Legislative Council or the Speaker of the House of Assembly having a discretion to refer a protected disclosure to the Ombudsman for further investigation.

I am confident that this bill will become an important cornerstone of open and accountable government in this State. It offers up-front, comprehensive protection to encourage people with information about public sector wrongdoing to come forward in the public interest. It also provides for fair and thorough processes to ensure that investigations get to the bottom of allegations. All Tasmanians will benefit from the greater scrutiny of the public sector which this bill facilitates. I commend the bill to the House.

Mr HODGMAN (Denison) - Madam Deputy Speaker, this bill comes in in the last year of the term of office of the Bacon Government and it comes in pursuant to a commitment given prior to the 1998 State election. Whilst any bill is better than no bill and without in any way reflecting on the hardworking officers who have worked to get this bill together it is a disappointment from whichever side of the fence you look at it.

There will be some who will contend it does not go far enough and there will be others who will contend in some respects it goes too far and is too heavily biased in favour of the whistleblower. I am in that latter category but there are others in my party who will be saying that the bill does not go far enough.

Dr Patmore - Well, what's your position then?

Mr HODGMAN - And the position is that we will not oppose the second reading of the bill, as I indicated on an earlier occasion. But I have prepared a number of amendments which will be moved and which I believe would improve the bill and I am certain other honourable members will be bringing up amendments. Attorney, it is a disappointing piece of legislation before the Parliament and more to honour a commitment than because it has the solid imprimatur of the Government or indeed the Attorney himself.

You see, the way it has come about and the way it comes into the Parliament for debate in the last months of the Bacon Government is that last year on 27 November to be precise the bill came into this House and we were ready to debate it but the Attorney moved that it be referred to the Joint Standing Committee on Community Development. On that day the Attorney moved that the House refer the Public Interest Disclosure Bill 2001 (No. 114) to the Joint Standing Committee on Community Development for examination and report no later than 30 March 2002. I spoke on that occasion and said that the Opposition would not oppose the motion but we placed on record that the bill - which had taken nearly three years to come to fruition and which was part of the pledge of the then Opposition back in 1997 - was prima facie deficient in a number of areas which we believed the Parliament should deal with and not a select committee.

I then went through and indicated a number of areas of concern which had come to our attention. Those matters are set out in Hansard of 27 November 2001 and my remarks commenced on page 25 and go over to page 27, when Ms Putt then took over. The comments made by both of us are interesting because we came from completely different angles. The thrust of my complaint was that the bill was too heavily biased in favour of the whistleblower and I described the bill at that time as a 'pimp's paradise', where the attacker was virtually given carte blanche immunity to say whatever he or she wished, notwithstanding the provision that they could be prosecuted if it was proven that they were false statements, that many of the inquiries would not even involve a hearing but would be conducted behind closed doors in the Ombudsman's office, that many persons were not even entitled to find out that they had been mentioned in a complaint unless the Ombudsman considered that that person had been adversely commented upon, thereby excluding the case where somebody might be referred to in a complaint as 'corroborating' certain matters but that person might in fact never be subject to a hearing or an investigation.

My complaint therefore was that the legislation was too heavily biased in favour of the whistleblower. Can I say that I have recognised for some time - and I put on the record - that in my life the history of whistleblowers has been a sad one in that it is very hard to bring to mind a whistleblower in State or Federal spheres of government who has not in the event suffered because he or she blew the whistle. I remember one of the first matters I was involved in when I went up to the Federal Parliament in 1976 involved a young officer in the Department of Defence who had the courage - some would say the gall and others would say the temerity - to attack the senior hierarchy of the Department of Defence, and in particular the then head of that department, Sir Arthur Tange, who was a mandarin supreme in the Canberra public service. It took that young man considerable courage to blow the whistle, but he did. It would be fair to say with the support of the Bulletin and at least with the support and encouragement of a great parliamentary reporter - a legend, Alan Reid, the red fox - that the young man's complaints in many areas were found to be correct. But to what ava il? In the end his career was ruined. I know well that the Prime Minister of Australia, the honourable John Howard, MP has become personally involved in the case involving Mr Alwyn Johnson. I am also aware of other cases where, as Ms Putt pointed out in her address back in November, whistleblowers had effectively finished up being punished for what they had done.

So in saying that I think the legislation is too heavily biased in favour of the whistleblower, I want to put it on record that I am very conscious that in the past the system may well have been too heavily biased against the whistleblower. There are some in my party who will take the contrary view and they will say, 'No, it doesn't go far enough', and I just want to raise some matters which will be the subject of debate and may well be the subject of amendment. I think the lack of good faith in this bill, whichever way you look at it, good or bad, is that it is not retrospective. If the Government was fair dinkum, why should it not be retrospective? Do we have a price tag on whistleblowers? Do we have a situation that it is becoming a lottery? I note, for example, that in relation to contractors, if the protected disclosure is made after the contract has been concluded they cannot bring it. Why is that? In other words, if you do not find out at the time, it is actually done to you, that is it.

I am not going to pre-empt the debate in the committee stage, but I was concerned about what I regard as woolly drafting, and I repeat, this is not the slightest criticism of the hard working officers who put the bill together. I think the problem has been that they have been given instructions from both sides of the fence, they have had to try to ride two horses at once. I will be raising in the committee stage why it is that there is no positive or precise definition of 'detrimental action'; it simply says it includes a number of things, whereas if you come down further to 'improper conduct' you will find it says 'means' - in other words, there is a dichotomy in the definitions. I will be proposing amendments to make it clearer what we mean by 'detrimental action'.

I think we have to be concerned about actual causings and not anticipated, putative or hypothetical causings. I think we have to look at wilful intimidation, not other actions which some people might regard as intimidation, but the person who has allegedly done it does not regard it as intimidation at all. Does a sergeant intimidate the platoon when he raises his voice to them when they are on drill parade? Somebody says, 'I felt intimidated'. I must say, Madam Deputy Speaker, that when people say to me, 'I felt threatened', in many cases I smell a rat because the next question is, 'Well, did you do anything about it?' 'Oh, no, but I'm telling you now'. 'But it's four years later'. 'I know, I've felt threatened for a very long time.' 'Why are you telling me now?' 'I think it ought to be put right. Of course I am not interested in money but if there is a possibility of compensation I would not be adverse to that.'

Mr Hidding - Reluctantly of course.

Mr HODGMAN - Reluctantly. And I do not want to be accused of saying anything other than this: that since this Government and our government and governments around Australia have made provision for payment of compensation to victims of crime, it is significant that in a number of cases crimes have come to life 20 or 30 years after the event. And bearing in mind that no person has to be convicted, let alone charged, if you can satisfy the appropriate body that you were raped by a person or persons unknown in 1975 and that has seriously and adversely affected your life, then you will be entitled to compensation. Or if I can satisfy the judicial body which deals with these matters that I was king hit in a hotel, fell down the stairs and I have suffered severe manic depression ever since, even though nobody was ever charged, let alone convicted and nobody has ever been brought to court, I too can get compensation.

I will not detain the House by going through the amendments and I will of course, Attorney, make these amendments available to you before the debate. I have a formality which I have to go through. This bill has actually come on a tad quicker than we were both expecting but we are ready to go. I want to say that we have -

Dr Patmore - Sorry, if I may interrupt. Can I have those copies?

Mr HODGMAN - You cannot yet because they still have to go to some other people to be looked at but you will have them in the morning and I am basically telling you what they are.

Dr Patmore - That way I can take them to parliamentary counsel to see them.

Mr HODGMAN - Yes. I will make an inquiry if I can make them available to you. There is nothing that is going to cause you a great problem.

Dr Patmore - I am not worried about a problem, I am worried about the opportunity to give full consideration to them.

Mr HODGMAN - Yes, I understand that. You will recall that when we were discussing this earlier today, I did not think we would reach it today. I will just give you the undertaking, Attorney, as soon as I can I will get it to you but I have a forum I have to put these through because they have not been put through.

Dr Patmore - If you get them to me before we commence the committee stage, I will undertake to give them full consideration.

Mr HODGMAN - Thank you. But I want to draw attention to the fact that whilst everybody else who is subject to a whistleblower investigation is obligated to make a response within 45 days, the Ombudsman is excluded from that requirement. I know and I can understand the argument will be, 'Well the Ombudsman's office is already overworked, underresourced, we just can't do more'. But I have to raise the question. If you are fair dinkum about the thing then you should make the provisions equivalent. I will be saying something about the provisions in relation to complaints in respect to conduct said to have occurred within the police force. The minister is in fact in the Chamber. The fact of the matter is that if the complaint involves a person up to the rank of Commissioner, your first whistleblower complaint goes to the Commissioner himself. And so you could have a situation where the Commissioner himself is investigating a whistleblower complaint in relation to a Deputy Commissioner or one of the Assistant Commissioners. But if you make the complaint about the Commissioner then that goes somewhere else.

Second Reading Resumed

Mr HODGMAN (Denison) - When this bill was being debated last evening I made the comment that, with great respect, it is very second-rate legislation. It does not please either side of the debate. I am sure Ms Putt will have some comments to make when she speaks. But the thing that I hear from both sides of the debate is that the legislation does not please those who champion the cause of whistleblowers and it certainly does not please those who might be on the other end of the whistleblowing, particularly when that whistleblowing may be completely untrue and motivated by malice.

Mrs Jackson - It's in the legislation. It's taken care of, as always.

Mr HODGMAN - Pardon me!

Mrs Jackson - That's true.

Mr HODGMAN - The member is correct if she is alluding to a provision that persons who make false statements may be subject to prosecution. I have not overlooked that.

Mrs Jackson - Oh.

Mr HODGMAN - But what about where there is an argument as to whether they knew the statement was false? What about where there is an argument and they say, 'I acted in good faith. I was performing my high public duty, I acted in good faith'. What you have is a pimp's paradise here, a total protection of a whistleblower against any civil or any criminal proceedings. The Attorney-General will note in this spirit of cooperation which has permeated this debate, Attorney, that Her Majesty's shadow attorney-general for the State of Tasmania, on behalf of Her Majesty's loyal Opposition -

Mrs Jackson - There's no such position. You're a fraud.

Mr HODGMAN - has provided you with proposed amendments which I intend to raise and introduce into debate in the committee stage. I want to say here and now that the Opposition feels very strongly about these matters and we will give your Government an opportunity, Attorney, to show its true colours and whether it is really fair dinkum about this whistleblower legislation. It took three years to come into existence. The promise was made back in 1997. The Government was elected for what will be its first and only term in August 1998 and so it is in the final year, a shade longer than it takes for an elephant to be born. It has been a long, long time coming. And when it did come into this House last year the Attorney, with footwork which would do credit to Fred Astaire - and I notice on this occasion that he has been supported in the debate by the Honourable Judy Jackson. She may well be a reincarnation of Ginger Rogers. With the neatest footwork you have ever seen he shot it off to a committee for investigation, putting a tag there, 'You've got to reply, you've got to report by 30 March 2002'. That was because his riding instructions at that time were, have a short period of inquiry because the Government will probably go for an early election. And of course, as we know, they wanted to go for an early election but unfortunately Duncan Kerr got right in the middle of it because the plot was exposed. Duncan Colquhoun Kerr was moving from the House of Representatives to run in the House of Assembly. He would not have taken the vote off Her Majesty's shadow attorney-general for the State of Tasmania - that is me - he would not have taken one vote -

Dr Patmore - That's the loony vote.

Mr HODGMAN - but what he would have done to the honourable Judith Jackson was just far, far too much for her to handle. And, of course, indirectly what he would have done to the honourable Paul Lennon was equally bad because it was said, as Duncan Kerr in fact told me at the cricket -

Dr Patmore - Now it's got to be true!

Mr HODGMAN - it was even being contemplated, but a plot was arranged, whereby he had the numbers to be the Deputy Premier, the Deputy Leader in the last year of the Bacon Government. He said that did not please the Premier and it did not please Mr Lennon. I can understand it not pleasing either. Of course the Premier then said straight out, 'If he goes, I go', so it was on for young and old and we all know what happened. Simon Crean was called in, down came the nulla-nulla and Duncan Kerr remains up there, the hard-working, longest-serving member for Denison in the history of the Federal Parliament, as he now is.

Dr Patmore - Is he?

Mr HODGMAN - Yes. He broke my time and he broke -

Dr Patmore - You'd think he'd be happy with that, wouldn't you?

Mr HODGMAN - Well - ooh, I am going to see that he gets a copy of the Hansard . He will see that you have not lost the knack of sticking the knife in and twisting it. There must be a few old party debts on this one -

Dr Patmore - No. Duncan's an old mate.

Mr HODGMAN - but the bottom line is that the honourable Duncan Kerr, I give credit, is now the longest-serving member for Denison in the House of Representatives.

Dr Patmore - He's turned a marginal seat into a safe seat.

Mr HODGMAN - Well, with a great bit of help from the redistribution commission -

Dr Patmore - Oh, come on, Michael!

Mr HODGMAN - under the sponsorship of Robert James Lee Hawke and Mick Young. They changed the seat that I built up to a 7.5 per cent safe Liberal seat into a 48 per cent Liberal seat which I hung onto by the skin of my teeth the first time.

Dr Patmore - Come on, stop smarting.

Mr HODGMAN - No, no. You rigged the boundaries. I found out what was meant by the title 'Special Minister for State' when Mick Young was appointed. I said, 'What's this Special Minister for State, Mick?' He said, 'I've been set up to rig the boundaries to keep Hawkie in as Prime Minister'. They got rid of me, but I am proud of the fact that history will record the electorate of Denison was changed for one reason and one reason only: to get rid of Michael Hodgman.

Dr Patmore - Oh, okay.

Mr HODGMAN - Well, they did get rid of me for a little while, but I came back because I said to Hawke at the time, 'I'll still be around when you are just a fading memory', and have a look at the facts today. I am still around and he is a fading memory. I should not quote myself, Deputy -

Dr Patmore - However, it hasn't stopped you in the past.

Mr HODGMAN - but if Gough Whitlam is going to donate his brain to medical science, and as Peter Costello said he would persuade Carmen Lawrence to donate her memory -

Dr Patmore - What are you going to donate, Michael?

Mr DEPUTY SPEAKER - Be careful you do not go there.

Mr HODGMAN - I am just wondering what part of the body Robert James Lee Hawke might care to donate to medical science, but I will pass from that and go onto other matters.

Mr DEPUTY SPEAKER - Very wise.

Mr HODGMAN - What we are going to do in the amendments that we have proposed and which in the spirit of cooperation I have already supplied to the Attorney and which I now hand for the benefit of the Clerk and additional copies for honourable members, Peg Putt -

Dr Patmore - And because you've done so I'll consider them.

Mr HODGMAN - Yes, thank you. We think they are in order and whether you agree with them or not, they have been well drafted and I want to congratulate Jonathan Payton -

Dr Patmore - But mind you, might I say I will not consider any other amendments that are not put forward.

Mr HODGMAN - Absolutely - I do not know about that. Oh dear, oh dear I was too quick off the mark there. What we are proposing is to make more precise the definitions in relation to 'detrimental action'. We believe it is too vague and it needs to be made more precise. We say that instead of having a definition of 'includes' it ought to be 'means', and you will see the points I have raised there. We also believe that where the matter is serious it should be 'wilful intimidation' and 'wilful discrimination', and also that threats should be direct.

We further will be arguing that in improper conduct the same ingredient is essential - that it should be wilful, not accidental. We put it in as amendment to clause 6 which, in fact, is not an amendment because we are going to delete it.

Dr Patmore - No, you are going to move for it to be deleted.

Mr HODGMAN - We are going to move for it to be deleted and this will test the Government because I am sure Ms Putt has worked it out. Clause 6 is the one which says: this legislation will not be retrospective.

I am pleased to say that our party has taken the view -

Ms Putt - That's interesting I have a similar amendment but you also have to amend clause 10.

Dr Patmore - I don't think I'll be considering yours because I haven't got them in the right spaces.

Ms Putt - Well, I'm just giving them to you now.

Mr HODGMAN - I can indicate that we will be taking a division on clause 6, Attorney. I cannot be fairer than that.

Dr Patmore - No, too late now.

Mr HODGMAN - We believe the legislation is so bad that it fails both tests but, having said that, any legislation we would argue is better than none. Any legislation passed in 2002 could be subsequently amended and we are going to put the Government to the test. Are you fair dinkum or not?

Dr Patmore - We are.

Mr HODGMAN - Because you have made your legislation non-retrospective, Non-retrospective Patmore, that is what you ought to be called.

Dr Patmore - I've been called many other things, Mr Hodgman, but that's one of the better ones.

Mr HODGMAN - You are hedging your bets, you are going to give us this legislation which you yourself are not prepared to allow to be retrospective.

So Alwyn Johnson and all the others who fought for this legislation will find, too late brother, it is not going to help you.

Dr Patmore - It wouldn't anyway.

Mr HODGMAN - A government which was fair dinkum would not have put a time limit on righting injustice, that is where you are condemned.

Mr Deputy Speaker, we will be moving for the deletion of the word 'not' and I draw Ms Putt's attention to the fact that the deletion of word 'not' from clause 10 also relates to the non-retrospective provision so Ms Putt your amendment has already been covered quite independently by us. Then I turn in relation to the pimp's paradise protection which I believe is far too wide - and that is clause 16. The Opposition is going to say, let's put it exactly where Mrs Jackson tried to suggest to the House it was, which it is not, bailing the words provided that the protected disclosure is not to the knowledge of the person, that is the person making it, untrue and/or motivated by malice, puts it beyond doubt.

Then we come to a number of amendments. In this bill the Government gives the Ombudsman the lion's share of the work. In this bill the Government says that matters not reported to the Ombudsman have to be dealt with within 45 days, had to be responded to is a better way of putting it so if there is a whistleblower complaint in Tasmania Police involving an officer below the rank of the commissioner, the commissioner, who I might say by some brilliant statutory manoeuvre in this legislation is declared to be a public body, has to respond within 45 days.

So what the Attorney-General is saying here is, 'Look, we want these provisions to be passed but we are going to give the Ombudsman the benefit of no time limit, a reasonable time'. We suggest the reason is this: that the Government has under-resourced the Ombudsman, that the Government is well aware that the Ombudsman complained and the former Ombudsman Damon Thomas raised matters which were in fact rejected by Cabinet last year for a reform package which was to make the Ombudsman totally independent, to give it proper resources and in addition to have the position where it was reportable to a parliamentary committee and to have its own separate budget allocation. All of those matters were put up but were rejected and that, Mr Deputy Speaker, is why there is not a 45-day requirement on the Ombudsman, because the Government says, 'We'll give the Ombudsman all this work to do and we will not put a time limit on it,' and therefore things go on and on.

Wrong! If the Government is fair dinkum about this legislation it should agree to the Ombudsman's being subjected to a 45-day limit; it should agree to provide resources for the Ombudsman; it should agree to give the Ombudsman a separate budget allocation and it should further agree to having the Ombudsman reportable and accountable to a parliamentary committee, so that it is seen to be totally independent of the executive Government in every way, shape and form.

So there we are, Mr Deputy Speaker. We regard the legislation as a big disappointment from whichever point of view you look at it, very disappointing, second-rate. It is really produced to honour the word of the commitment given prior to the 1998 election but not the spirit of it.

The Attorney's speech to the House on the second reading was a classic example of what my late father frequently said in the Criminal Court when addressing the juries, as he did better than anybody else in the history of our State. When he took to pieces a Crown case he would then turn and say, 'And so you see what happens, members of the jury, when the Crown tries to make bricks out of straw - it falls apart'.

I can well understand why people like the distinguished academic Mr Rick Snell, the highly distinguished writer Mr Wayne Crawford and others, who have pursued this matter with great enthusiasm and dedication over the years, will be very disappointed with this legislation. I know within our own party ranks that the former Leader of the PLP, the former Deputy Premier the honourable Sue Napier, has had a longstanding and abiding interest in whistleblower legislation. I know that rightly or wrongly Ms Putt and her group, the Tasmanian Greens, have also been interested in the subject for a long time.

I am one who still believes and maintains that the greatest protection to the citizens we have in a parliamentary democracy under the rule of law is the right to take our grievance against the State, the bureaucracy or those who impinge on our individual freedoms including our right to earn an income, our right to perform our duty without being subject to threat, harassment and intimidation, to a Supreme Court judge who is fair, impartial and totally independent of government. You do it by way of the prerogative writ, something which would have disappeared if this country had stupidly followed the lead and voted to become a republic at the referendum -

Government members interjecting .

Mr HODGMAN - I have to say here and now that I asked a number of republican academics how you maintain the prerogative writ if we cease to have a constitutional monarchy. 'Ah,' says the Attorney, 'we do it as we have done'. What he is saying and what we have done in Tasmania is to amend the Supreme Court Civil Procedure Act to basically simplify the proceeding for the obtaining of a general prerogative writ -

Dr Patmore - That's right.

Mr HODGMAN - and it abolishes the old distinction between mandamus, certiorari, quo warranto and habeas corpus and I can see -

Dr Patmore - I know you are in full flight, Michael, but may I interject on one issue before you sit down, because your time is running out.

Mr DEPUTY SPEAKER - The Attorney-General, on a point of order, I am sure.

Dr Patmore - On a point of order.

Mr HODGMAN - I am nearly finished.

Dr Patmore - I know - well, they are saying that about you, Michael.

Mr HODGMAN - You do not come to Hobart except when you have to and you could not find the heart of Denison with a compass and a seeing-eye dog. But having said that -

Dr Patmore - Nor would I wish to, but anyway.

Mr HODGMAN - Well, there you are - another one who doesn't like Hobart.

Dr Patmore - In the amendment that you are proposing in relation to contracts, you are basically saying that if a contract has been concluded - sorry, the legislation as it currently stands is that if a contract has been completed a person cannot complain.

Mr HODGMAN - That is right.

Dr Patmore - We will not be supporting the retrospectivity but assuming the debate convinced me in relation to a contract, how would we go about allowing that clause to be amended? You only have a small window of opportunity to lodge a complaint while the contract is being undertaken. But once the contract is completed if you then become aware of problems you are unable to make a disclosure.

Mr HODGMAN - That is under your present bill.

Dr Patmore - Yes. Assuming that I was minded to look at your amendment, how would it be worded so that it did not affect the non-retrospectivity of the rest of the bill? That is an issue for me to talk to Crown Law about.

Mr HODGMAN - I know what you are saying.

Dr Patmore - But I just put that to you now so you can think about it.

Mr HODGMAN - We have done the best we can and your draftsperson may well be able to -

Dr Patmore - I just put it to you now so that when the time comes for debate you are aware of my point.

Mr HODGMAN - That is fair and I thank you for that. The bottom line is that you have picked up our complaint which is this: the contractor could only have the benefit of this legislation if he or she, or it being a company, discovers what has been done to her, him or it while the contract is still running. In other words, once a contract has expired and been completed the game is over - it is all over Red Rover.

Dr Patmore - Yes, that's right, the contract has ended.

Mr HODGMAN - Well, we are both on the same track as to what we are trying to do.

Dr Patmore - Yes.

Mr HODGMAN - I conclude, Mr Deputy Speaker, the Government has paid lip service to a solemn election pledge that it gave and has brought in legislation which is not good legislation and disappoints both sides of the debate. It has shown it is not fair dinkum because it has not permitted matters to be raised retrospectively, shutting out therefore all those who have been waiting for this legislation thinking they might be able to get justice out of the legislation. Lastly, by the device of handing most of the hard work to the Ombudsman yet not giving the Ombudsman the resources required to do the job, this has ensured that in many instances the Ombudsman's inquiries will not be completed and the whistleblowers' complaints will not be resolved.

It is not good legislation. We will not oppose the second reading. We will move the amendments I have foreshadowed and I indicate to the Attorney we will seek to divide on the retrospectivity question on the contractors' issue and on the 45-day provisions.

Ms PUTT (Denison) - Mr Deputy Speaker, this legislation has been long awaited. It has been more than a decade that there have been strong calls for whistleblower protection legislation in this State. All through the 1990s the Greens supported whistleblower legislation. Labor introduced a couple of bills - in fact three bills - to this House for the purpose of protecting whistleblowers and promoting public interest disclosures but none of those came to fruition. The Greens also got up a bill which was an amendment to the Public Service Act to try to at least protect public servants making public interest disclosures.

There has been wide-ranging discussion, debate and investigation both around this country and internationally on the issue of whistleblower protection and how best to go about promoting the disclosure of matters that are in the public interest where there is some major failing or, more to the point, deliberate activity that is going on that is wrong.

There are many stories that are known about whistleblowing, some of which have become the subject of Hollywood films. We all know how important in public life whistleblowing has been to reveal circumstances in the public interest that would otherwise have remained hidden and where often gross wrongdoing might have continued were it not for the whistleblower.

We are aware of the cases of whistleblowers in Tasmania who have generally been people working in an area who understood that something wrong was occurring, it came to their attention and they felt that according to the dictates of their own conscience they must reveal that matter. In so doing I believe that they never have understood, as whistleblowers generally have not done, the personal impact that that would have upon them over the years subsequent to that action that they took. And it is one of the distressing aspects of the whistleblowing subject the extent to which the person who stands up and does the right thing is punished.

We have seen those impacts in their loss of employment, in the finance penalty on them and their families and all the flow-on effects that can occur. At the outset they are often treated as the traitor when in fact of course they have acted out of the noblest of motives and often it is society that owes them a lot. We have a legacy here in Tasmania of whistleblowers who have never been compensated for the personal toll, the impact on their livelihoods and their families that their whistleblowing activity has had.

We have had other incidents where eventually after some years of distress and lobbying at least in one instance a private settlement was reached between the whistleblower and the government agency in the end. Clearly there has been a need to protect whistleblowers and we have been very deficient in our provisions about that up to this point in time.

There is also the need to promote public interest disclosures by the provision of appropriate and transparent process for people to be able to come forward. I do not think any of us question that. However when we look at the bill before us today, I have to say that it is a minimalist approach to fulfilling Labor's election promise to introduce such legislation. Unfortunately it fails to incorporate national and international best practice in a range of areas. I am dismayed that Tasmania gets legislation that is second best in some of the areas that are important to thoroughgoing public interest disclosure legislation.

In looking at the question, 'What is the primary purpose of the whistleblower bill?' we need to be aware that the main focus of NGOs such as the public interest network for example has been the protection of whistleblowers and certainly that is one of the purposes here. The second one that I have referred to already is the promotion of public interest disclosures by the provision of appropriate and transparent process. The aim of this bill would indicate both of these aspects, so it must be measured against whether it meets its intended aims.

In criticising the deficiencies of the bill, I believe the key issues - and I do have amendments to cover some although not all of these; in some instances it became a little difficult without a major rewrite so I have not tried to go there since I am fairly certain that the Government is not at this stage responsive and I note that actually a couple of the amendments that I have proposed are substantially the same if not exactly the same as those proposed by the Liberal Opposition - one of the key failings in this bill is that it does not cover the private sector.

It is interesting that we are only looking at the public sector because the Tasmanian ALP's first whistleblower protection bill, which was Michael Field's bill of 1995, did include provisions to cover the private sector. In clause 5(2) it said, 'This Act affords protection to complainants in both the Government and private sectors', and it calls itself, 'a bill for 'An Act for the protection of persons making public interest disclosures concerning illegal or improper conduct and for related purposes'. Subclause (2)(c) says, 'any person in a relationship of employment with another person, incorporation, organisation, business or any other such body', and provides a definition for 'private sector' meaning non-government sector.

In the UK in 1998 unions lobbied for the inclusion of the private sector as an industrial relations issue, that is about protecting workers who do the right thing by making a public interest disclosure and this resulted in the 1996 Employment Rights Act being amended by the 1998 Public Interest Disclosure Act so that they introduced a definition where a worker making a disclosure basically broadened the ambit to go across through to the private sector.

What is important for us to note in the Australian context with respect to the role of the State in broadening the scope of this legislation to the private sector is of course the report of the Senate Select Committee on Public Interest Whistleblowing which tabled its report called 'In the Public Interest' on 30 August 1994 and the recommendation on page 16 which says:

'The committee recommends that the Public Interest Disclosures Agency and the provisions of the supporting legislation be given the widest coverage constitutionally possible in both the public and private sector. Throughout the private sector the committee encourages States and/or relevant industry groups to provide avenues for the reporting and investigation of wrongdoing in those areas where the Commonwealth Parliament cannot constitutionally act.'

What they were specifically pointing to there was the need for States to incorporate provisions with respect to public interest disclosures, whistleblowing and the private sector. So that is the first problem: it does not cover the private sector.

The second point is that this bill is not retrospective; it does not allow for retrospectivity and it should do so. That issue has already been brought up by the previous speaker and in fact it is interesting to note that in clause 40(d) there appears to be a punishment delay, but when we look around about retrospectivity we find that in this bill in 2002, disclosures cannot be made about past conduct and we have the further problem which was just highlighted in a discussion between the minister and the shadow attorney - the representative of the Liberal Party on this - that the business with contracts must be in force at the time the disclosure is made by the contractor, and the inability for that to be dealt with outside that time, which could be extremely restrictive.

In the 1995 bill that was introduced by Michael Field for the ALP, there was of course retrospectivity. In the definitions, a whistleblower was 'a person who has in the past made or will make a complaint under the terms of this Act and whose complaint is upheld'. In 1997, in Judy Jackson's bill on behalf of the ALP, she is very explicit about retrospectivity, and makes the possibility open. In Applications under section 6, it says that the commissioner may receive information and otherwise exercise the functions in relation to acts, omissions or conduct occurring before or after the commencement of this act. In Victoria's act of 2001, which has been widely recognised as a vast improvement now on the legislation of South Australia, Queensland and New South Wales, again we have a provision for retrospectivity. In section 9, a person may make a disclosure under that part about conduct that has occurred before the commencement, so again retrospectivity is something well accepted previously within the ALP here, and is now in legislation that is currently in force in Victoria. So I do not think we can see any argument sustained that it is not appropriate or possible.

The next point - and, as I said, I do have amendments on some of these matters, some of which I think are substantially the same, if not exactly the same as the Opposition's, so we will need to work that through when we get there.

Mr Hodgman - Mr Llewellyn was distracting you, but we do have an amendment to clause 10 on retrospectivity.

Ms PUTT - Yes, I saw that, and I have exactly the same one - delete 'not'.

The next point is that the threshold to qualify as a whistleblower is too high. This is because the threshold conditions for potential whistleblowers to qualify centre around improper conduct, which is defined as 'corrupt conduct or a substantial mismanagement of public resources or conduct involving substantial risk to public health or safety or conduct involving substantial risk to the environment'. The bill also requires that this conduct would, if proved, constitute a criminal offence or reasonable grounds for terminating the services of the relevant public officer. Obviously, the idea is to filter out low-level complaints, and there is a need to do that, but I believe that this goes too far. This two-tier test will be too restrictive and very few, if any, whistleblowers will qualify. Indeed, it has been put to me that if you run the circumstances in which the well-known Tasmanian whistleblowers made their disclosures past this test, a number of them would not qualify as whistleblowers under this legislation.

First they have to establish their disclosure is improper conduct - that is, corrupt or substantial mismanagement or risk, and then that conduct has to be serious enough to constitute a criminal or sacking offence. Yet clauses 41 and 42 would allow the Ombudsman to refer complex or criminal matters to the police commissioner or the Auditor-General. The State Service Commissioner, which would be most cases which could qualify under this legislation the objection to the threshold, is justified in the following way. The underlying objective of the act is to motivate people to make disclosures in the public interest. There is a need to limit, as I said, or qualify the making of disclosures and provide some form of threshold for allowing protection only to those who are disclosing allegations of a certain degree of seriousness. We can understand that, but notwithstanding the difficulties in determining the meaning of the word 'substantial' and of course there will be difficulties there, the existence of the two-tiered threshold test would operate only as a disincentive to people to disclose, and this is a serious matter. Requiring that conduct must be of a substantial nature with respect to mismanagement and risk means that people are more likely to withhold disclosure until such a t hreshold is reached in order to attract the protective measures under the act. In other words, what you are going to get is probably quite the reverse of the situation that you desire. If the underlying objective of the act is to prevent improper conduct before it explodes then the two-tiered threshold should be removed and a lower threshold put in place because you are going to get people holding back, even though they know something wrong is going on, until a thing has got to gross proportions in order to satisfy the two-tier test. So that is really not good.

In New South Wales this is how it is dealt with. They have a provision for disclosure to the Ombudsman concerning maladministration and I believe that that is what we need to bring in here - to embrace maladministration as one of the matters in terms of improper conduct that can trigger the provisions of the act. In New South Wales, maladministration is a disclosure of information that shows or tends to show that in the exercise of a function relating to a matter of administration conferred or imposed on a public authority or another public official, the public authority or the public official is engaged or proposes to engage in conduct of a kind that amounts to maladministration and for the purpose of the act that conduct involves action or inaction of a serious nature that is contrary to law or unreasonable, unjust, oppressive or improperly discriminatory or based wholly or partly on improper motives. While it touches near to the definitions that we have in this bill it does embrace something further and something that is of a lesser order of magnitude.

In New South Wales, under this legislation which widens the scope to include maladministration, there were only 97 protected disclosures made under this more generous provision in a year, which on a pro rata basis would translate to five to 10 disclosures in Tasmania. It is not a huge amount that we are canvassing here by opening up maladministration and, as I say, if we do not we are basically waiting for the pressure cooker to build and blow before we have the disclosure. I think that is a very important matter.

There are some other issues here. One is that the bill does not seem to deal with involuntary whistleblowing, and you may wonder what I mean by that. It is not the sort of thing that you would think of unless you had had an instance of it and in fact I can think of a number of circumstances in which it would occur. The involuntary whistleblowing that I am talking about relates to a disclosure with respect to mental health services in the north-west of the State some years ago and the Attorney-General knows about this matter because he was a member of parliament who was involved with that disclosure at the time.

Dr Patmore - It wasn't whistleblowing.

Ms PUTT - Well, you say it is not whistleblowing; we say it is whistleblowing. The person involved has certainly been affected as if they were a whistleblower.

Dr Patmore - That doesn't make it whistleblowing.

Ms PUTT - What happened was of course -

Mr DEPUTY SPEAKER - The member for Denison has the call and as your next question would be, 'How long have I got to go?' I can tell you the answer is nine minutes.

Ms PUTT - Thank you, Mr Deputy Speaker.

As I was saying before the suspension, one of the issues that is of concern is involuntary whistleblowing. That is a real issue. I heard the Attorney-General starting to dispute about the case that I was discussing, and he would do so of course because he needs to defend himself and his past actions. It is widely recognised around Tasmania that the case of Kevin Moylan is one of a whistleblower and that he has been a whistleblower. What happened in this instance of course was that he gave information to a member of parliament who then essentially blew the whistle on his behalf using parliamentary privilege but it was the person who had passed the information who suffered. The member of parliament who did the whistleblowing for the whistleblower, without his volunteering or wanting to be exposed in that way, was the person who is now the Attorney-General, so that explains perhaps his objection on that matter. But the point remains, whether or not you agree that he is a whistleblower, authorities such as Rick Snell, for example, cite him as a whistleblower, as do a range of other people. It has had a detrimental effect down the line because he did lose his employment as a result and, following on from that, has suffered a degree of stress and trauma and ended up losing, as you would be aware, his home and his property and finds himself in a very difficult financial situation. That is what occurred in that instance.

The more general point remains that there is no provision here to deal with involuntary whistleblowing. You can imagine there could be a range of circumstances in which a person blows the whistle or because of the information they have they are forced into a situation of blowing the whistle whether or not they wanted to. One can imagine that could occur, for example, where a public servant on oath in a court case was required to reveal something which under the terms of their public service contract they might have otherwise have had to keep confidential. That would force them into a situation of being an involuntary whistleblower. So there is a very real issue there and it is not dealt with in this legislation.

Also, this legislation rules out the making of disclosures to the media. I do not know that that is entirely satisfactory. There are circumstances in which people go to the media. I know that what is trying to be avoided here is some sort of sensational public prejudging of the issue; however there are people who may choose to use this avenue. What really should be set up are procedures that the media need to follow, rather than simply ruling it out.

A further issue which was raised by the shadow attorney-general is one which the Greens are also concerned about and that is that the Ombudsman must notify complainants within a reasonable amount of time, but that is not specified. Meanwhile, complainants have a specified 28 days in which to notify the Ombudsman whether they want their disclosure recategorised under the Ombudsman Act instead of being a public interest disclosure. Why do we not have a stipulation that applies to the Ombudsman that gives a time period for what constitutes a reasonable amount of time? We all, in our positions as members of parliament, I think, get at least anecdotal evidence from people dealing with the Ombudsman's office about how very long it can sometimes take for their complaints to be dealt with and we do not want that sort of situation arising in respect of public interest disclosures.

Of course the issue that comes along with this then is the resourcing of the Ombudsman's office to be able to deal with the extra load that will be put on them as a result of this legislation and these mechanisms being set up. So I would hope that the minister will respond during his closing remarks on the second reading on the matter of additional resourcing for the Ombudsman's office in order to deal with this. After all, in the previous Labor bills from this State, Judy Jackson's bill was to set up a whole public interest disclosure body and Michael Field had proposed a public interest disclosure commissioner.

This Government has chosen not to put in place either of those two mechanisms which would have required additional funding but instead to use the existing Ombudsman's office. There are some objections that are made to that but, given that that is what is here now, we have to at least give it a chance to work. It is not going to work if there is not a substantial increase in funding to the Ombudsman's office. They are already under pressure, they already needed additional funding before we had this bill before the Parliament. They are going to need it even more as this goes through the Parliament and hopefully comes into force. Those are very important considerations.

In finishing up, I just wanted to again address perhaps some of the past history here in Tasmania and some of the unfinished business with respect to whistleblowing. We still have an ongoing situation with Alwyn Johnson, who was the whistleblower on the Tasmania Bank during the years of the Michael Field Labor Government, the Labor Green Accord years. Had it not been for Alwyn Johnson, we would have ended up with a situation in Tasmania like we saw in South Australia with their State Bank and we owe that man a lot. He has never had proper restitution. Whilst it was brought up last year and the year before by the Prime Minister, it seems to have died a death at the Federal level as well now and so we have an ongoing issue to compensate him in some way for what he has done in the public good and the impact that it has had on his career.

The latest I saw was a minute that said that because lots of people have been dismissed by financial institutions over the past decade or more, it would be impossible to tell whether he would be one of the people who might have been dismissed, therefore we should do nothing to help him. What an appalling line of reasoning! That cannot surely be countenanced.

There is also Kevin Moylan whom I have spoken about. Again he is still seeking some assistance and I know that some processes have been gone through by the Government. Again this man has been badly damaged in his personal life because of the actions that he took in the public interest and the way that others then utilised the information that he gave them.

Lastly I would like to mention David Obendorf. I know an accommodation in his case was eventually reached with the Department of Primary Industry. He was instrumental in exposing the impacts of the downgrading of the animal health laboratories in Tasmania and again that work was really important for Tasmania but again had wide-reaching ramifications for him in his personal life and for his health and happiness. Hopefully under the legislation we have now we are going to avoid that sort of situation into the future but not if we do not expand it further.

I just go back to the bill's key failing - that it does not cover the private sector. I went through all the instances in other places where it does cover the private sector, so why would you have public interest disclosure about major improper conduct at a public hospital but not be able to disclose the same sort of thing in respect of a private hospital? You cannot think of an argument really that would justify that. Or if, for example, a private body was dumping waste inappropriately into the river, for example, you could not blow the whistle on them but you could blow the whistle on a council that knew about it and did not do anything. Surely the issue is blowing the whistle and stopping the activity, not whether you are reporting the public or the private sector. So again I put the argument, that has to be encompassed, as does retrospectivity, and retrospectivity is dealt with in legislation elsewhere and with previous Labor bills.

Again, the threshold to qualify as a whistleblower is too high, and I urge the Government to incorporate maladministration as one of the grounds for whistleblowing because otherwise we are going to have a situation where people hold off until a problem has become so extreme as to qualify through the two-tier test that the Government has set up. Surely the aim of this act is to actually prevent wrongdoing from occurring.

Mrs NAPIER (Bass) - Mr Deputy Speaker, I rise to support the bill, and in a sense to say it has taken a long time, hasn't it, to land into this House. Given the commitment that this Government had made to whistleblower legislation, given the work Judy Jackson had done previously as the shadow minister responsible for the area, I must admit I am rather surprised, in a sense, if I was not being in a small degree sceptical, that it has taken three-and-a-half years to land in this Parliament. I know also that there was an intent of the minister to direct this to one of the parliamentary committees, and I must admit I did not see the need for that, given that it would appear that the parliamentary committee system is not working at the moment as it relates to those special committees we have set up, be it for one reason or another. But I do believe that it is appropriate and important for this House to introduce whistleblower legislation.

Whenever we have debates about these kinds of structures, we look at the role of the Ombudsman and how it ought to be independent, and in fact I still believe it should be reporting to a parliamentary committee, so that there is an opportunity, I think, to separate the perceived control, if not real control, that the Government has over the Ombudsman, including the issue of resourcing of course. I think it is really important that the Government proceed with that commitment that was made, too, leading up to the last election. I am fairly sure that this Government did make a promise that they would make the Ombudsman independent, and that funding would be provided via the Parliament. I still believe that ought to be done and I look forward to the minister hopefully being able to deliver that in this Budget because, once again, as has been pointed out by previous speakers, we are asking the Ombudsman to take on yet another function. I commend the good work of the Ombudsman's office and the people who work therein. They have a tremendous workload that quite often is such because they just do not have the resources to adequately complete that role. It can take considerable time and energy to ensure that justice is done, but that is one of the costs that we expect to incur as a consequence of being in a democracy where we try to ensure that the rights of the individual are protected.

In relation to this particular bill, I would not see it as being a very radical bill at all. It does at least deal with public officers, and I note that this covers not only the public service but will also cover State-owned companies, GBEs and local councils, and that the category of public officer does span a fairly broad range of persons including members of parliament and councillors, officers and employees of most public bodies such as public servants, council employees, teachers, police officers, and so on. I noted the comments of the member who has just left the House in relation to the private sector, and it may well be that we move to apply this to the private sector at some stage in the future, but let us at least at this stage look at how it might apply to the public sector. Let us get our own house in order before we look at whether or not there is an argument for applying this to the private sector. I suppose you might argue that it might apply to the private sector where pubic moneys are used to help provide services, be it through subsidies, rebates or any other system.

On the matter of whether we should be so bold, as Ms Putt was suggesting, to cover involuntary whistleblowing and the right of someone to take the issue to the media, I think one of the strengths of the bill is that it does try to use a confidential setting within which the facts can be ascertained. I think it is really important to not only provide for a whistleblower to have an independent mechanism through which they can have their concerns dealt with but it is also very important to protect the rights of the person against whom they are making the complaint because it might well be that there is a simple explanation, or that in fact the person or body against whom the complaint is made is innocent.

That was one of the concerns I had in relation to the sex discrimination bill, given that I was very much involved in helping to write that bill, whether there was adequate cover through confidentiality mechanisms for the person against whom the complaint was made. We should not always assume that a person is guilty just because a complaint has been made and in fact I know of a number of cases where vexatious complaints have been made and it has always worried me that there is a lot of pressure on people against whom complaints are made to just give in, pay up and get it off the books. I must say I oppose that and have become increasingly worried about it when I hear it occurring.

I think the time span for the investigation of complaints in the sex discrimination bill is too long. I think when we get an opportunity to look at that legislation, review it, see how effectively it is operating, we need to look at confidentiality mechanisms and also try as much as possible to reduce the time over which a complaint might be investigated, particularly recognising the stress that it can cause someone against whom a complaint has been made. If they are guilty, fine - they deserve everything they get - but if they are not I think there are some real worries.

So when I looked at this bill, of course one of the issues I did look at was what time the Ombudsman might, for example, be provided in order to investigate a complaint and I think the bill actually refers to a 'reasonable time'. I would have to say there are many definitions of 'reasonable', depending on how many resources the Ombudsman's office might have or 'reasonable' in terms of what attention the Police Commissioner could give to it if that is the mechanism, because if there is a complaint against the police it first goes to the Police Commissioner. Is it 'reasonable' if a complaint is made about a member of parliament, and I note that that has to go first to the Speaker or the President of the other House.

I really think there does need to be a time definition of that and I believe we are going to be moving for 45 days - that within 45 days there should be a response in relation to a complaint. I think it is very important to ensure that the rights of the complainant, as well as the person about whom the complaint has been made, are taken into account and I am really pleased we are putting forward that issue. Associated with that is the really important issue of resources. I do want assurance from the minister that additional resources will be provided to the Ombudsman such that he or she will be able to take on these issues as well as fulfil the many other responsibilities they have.

I think the other issue I was interested in was the question of what 'improper conduct' is - and just before I leave that point I made the comment about the media in that if an offence has occurred then I have supported the concept of dealing with it confidentially, that report can then be made and the public will have the opportunity to know. I think it will be reassuring to the public to know that there is a mechanism that is a check and balance against intentional wilful wrongdoing within the system and at least the public should be reassured that there is that check and balance mechanism that is brought in by this bill. I am not convinced that it would increase the confidence that the public had if the media immediately jumped upon the issue before it had been investigated and I link that also with the fact that we need to protect not only the person making the complaint but also the person against whom the complaint was made. The media has a way of its own of deciding who the victim ought to be and it is not always on the basis of fact. I do not say that by way of criticising the media, it is just that that is the way it is. You can inadvertently have an unintentional victim.

I think this bill is at least a start in looking at whistleblower legislation. When you look at the definition of improper conduct, quite clearly the bill is focused on the public interest disclosure of serious wrongdoings. I guess all of us worry about incompetence, too, but I think it is really important that we make it absolutely clear that this is about wilful intent to mislead the public or mislead the minister or corruption in administration or financial arrangements, whatever it might be. It is my understanding that Mr Hodgman, the shadow minister, is going to provide an amendment that will strengthen that particular component as well.

I note that improper conduct is basically defined as corrupt conduct or substantive mismanagement of public resources and in looking at that particular element of course we are conscious that all of us would probably be aware of inefficiencies within systems. It is not peculiar to the public sector, you find it in the private sector as well. The larger the organisation becomes usually the greater evidence you will find of elements of mismanagement that build up. You like to try to improve that through improving your management systems and the managers themselves but that is not what this bill is about. This is about substantial mismanagement of public resources and I will follow the debate as to how we prove wilful intent to do that.

It also deals with conduct involving substantial risk to public health or safety and also conduct involving substantial risk to the environment. I imagine there will be many a debate on that as to how you define what a substantial risk to the environment might be and what are the criteria that we might use to be able to decide when there is threshold for that being applied. I say that in that context of the interest I have shown in the Great Forester Catchment Water Management Plan and the water levels that have been determined as being necessary to sustain environmental flow and they have been done on the basis of research that is not drawn from this State. It has been questioned as to why that particular research on the viability of water for trout and other species is being used rather than relying on research that is peculiar to us actually understanding the Tasmanian environment.

Ms Putt - It's probably because we haven't done any research here.

Mrs NAPIER - Yes. The major criticism I have of this Minister for Primary Industries, Water and Environment is that we all agree that water is important - and I know I am getting off the topic just a little bit -

Mr DEPUTY SPEAKER - A big bit.

Mrs NAPIER - No, but it is about how you define 'substantial risk to the environment' and I am drawing a parallel with that area. I will not spend very much time on it and I have not spoken in the House publicly on the issue before. One of the things that really bothers me is that we are supposed to be agreeing that water is important to the growth of this State yet the research was not done on some of these basic parameters by which we can implement the legislation that we put through. It really is starting to show up that the right hand has not known what the left hand wants to do and I think that is a real pity because it seems that we have just muddled along for three years and suddenly realised that that is what should have been done.

Ms Putt - It's also because it was substantially under-resourced and he doesn't go in to bat for his own department.

Mrs NAPIER - Yes, you are absolutely right. I do not disagree.

The bill I note would also require that this conduct - it is a fairly hard test that we are using in this - would, if proved, constitute a criminal offence or reasonable grounds for terminating the services of the relevant public officer. I am going to listen to the debate as we go along. I think that that is a bit too hard because it is a fairly hard thing to decide to terminate someone because of malpractice and there I suppose you get into this issue again of defining wilful intention.

I could tell you a few examples of where I believe that the minister has been misled by what is going on in his department but that is partly because he is not asking the right questions about what really is going on and anyone can guess who I am talking about just at the moment. It would not be fair to terminate the services of that relevant public officer if in fact they were wilfully doing that which they had been told to do in order to cover the butt of the minister. Who is going to be terminated, the officer, the minister or someone else? I wonder whether this tying it only to terminating the services of a public officer is too hard a bar. I will listen to the debate but rarely do you find someone gets sacked from the public service, rarely. I think that there may well be grounds for relating this more to whether they are put on notice or a second warning or something like that. I do not know. Perhaps people who work within the State Service can better identify what better words there might be.

However, suffice it to say that I am pleased to see that this whistleblower legislation is here. I think if this kind of legislation had been here in the days of Alwyn Johnson, as I understand it, presumably he would have been in a position to use this legislation and Tasmania would have been much better off. Alwyn Johnson would also have been much better off and I think he is a very good example of one of the victims of the lack of whistleblower legislation. The member for Denison referred to the case of Kevin Moylan. I must admit I need to get to the bottom of exactly why Mr Moylan has in effect had a career destroyed. I am not sure to what extent various people contributed. He certainly does appear to be a victim of someone who has in effect only experienced the worst of luck in events since he provided information that identified a problem that he thought needed to be acted on.

I support this legislation. I have to say that I do believe that people ought to be able to make retrospective complaints. I would be interested to hear from the minister as to what the situation is in other States as to how far back their legislation applied. I have not got that myself but it is the logical question to ask and I would be interested to know why it was decided not to make this retrospective. I also would be interested to learn from the minister whether he has had discussions with the TCCI's world or other bodies; whether it was ever entertained that it would apply or could apply to the private sector. Beyond that I will make any other points that I might have in the committee stage.

Ms Putt - By interjection, there is something that I forgot to raise - well, two things: whether you have any plan for an education program now for public servants about utilising it so they actually know what to do and will do it; and also, that there is a lack of provision for counselling support for whistleblowers and their families. I wonder if you could address that. That was in the three previous Tasmanian ALP bills but not in yours. Perhaps the Attorney-General thinks the system is going to be so good that they will not need it, but I am not sure.

Dr PATMORE (Bass - Attorney-General) - I thank members for their contributions. Mr Hodgman was kind enough to give me quite some notice in relation to the amendments the Opposition propose to move. I am just wondering whether I should comment on them now or as they come up in the committee stage.

Mr Hodgman - In committee.

Dr PATMORE - Yes, I will do it in committee because some of them I will be accepting and another you have put forward I will be accepting but with an amendment that I have not yet drafted. So perhaps if we just deal with that in committee, that is probably the best way to do it. I will give notice now that one of the ones I am referring to is your 45 days. I still believe that there should be a reasonable time for an ombudsman to make inquiries because 45 days may be very difficult to adhere to if you have to find a witness who has left the State or may not be around, but there is absolutely no reason why the reasonable time should not be delineated once a decision is made. You said 45 days when a person should be informed; there is no reason why it could not be 14 days, but they are issues we can discuss in committee. The amendment you are referring to about time limits after a decision is made, I will accept, and also in relation to the contractual nature, I think a party should be able to have a reasonable time in which to complain once they become aware of the wrongdoing and that has to be, by its nature, after a contract has been completed. So we need to expand the time in relation to that, but I will refer to that.

Bill read the second time.