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

Introduction and First Reading

Bill introduced, on motion by Mr McGinty (Attorney General), and read a first time.

Second Reading

MR McGINTY (Fremantle - Attorney General) [12.09 pm]: I move -

That the Bill be now read a second time.

There is nothing more fundamental to ensuring openness and accountability in Government than to ensure that people who have the courage to stand up and expose wrongdoing are able to do so without fear of reprisal. It is totally unacceptable that such people should be maligned or victimised as a result of their efforts to report - and therefore stop - improper or illegal behaviour in Government instrumentalities. This Bill will ensure that it cannot happen again. This Government stands for openness and accountability of the public sector. Currently, there is no comprehensive Western Australian legislation that enables a whistleblower to make an allegation of wrongdoing without fear of reprisal. This Bill implements an important Government policy commitment.
Whistleblowers who uncover improper or illegal conduct or substantial mismanagement of public resources in state and local government authorities must be encouraged to make disclosures to proper authorities and must be protected when they do so. To achieve and maintain open and accountable government, there must be a free flow of information. Corrupt, illegal or improper conduct must be exposed and prevented. There will be no improvement so long as potential whistleblowers who are aware of such conduct and want to report it, remain silent. Reluctance of public officers to disclose improper conduct is often due to a fear of reprisal. The purpose of this Bill is to create an environment in which whistleblowers are protected and encouraged. The Bill contains several important measures -

it enables and encourages whistleblowers to disclose wrongdoing or improper conduct by providing them with a framework for making such disclosures, either to the agency concerned or to another watchdog authority;
it requires state and local government departments and agencies to investigate disclosures and remedy any defects and wrongdoing;

it provides for protection for whistleblowers including confidentiality, employment protection and immunity from any criminal or civil liability; and

it creates an open and accountable Government for Western Australia.

Whistleblowing legislation was pioneered in the United States as early as 1863 with the enactment by Congress of the False Claims Act. Subsequently, many overseas countries, including the United Kingdom and New Zealand, have enacted whistleblowing legislation. Victoria, South Australia, New South Wales, Queensland and the Australian Capital Territory have already enacted whistleblowing legislation. In Western Australia, a number of reports, including the Royal Commission into the Commercial Activities of Government and Other Matters 1992 and the Commission on Government 1995, have recommended the enactment of Western Australian whistleblowing legislation.
The Western Australian Anti-Corruption Commission Act 1988 and the Western Australian Parliamentary Commissioner Act 1971 offer some protection to whistleblowers who make disclosures to the Anti-Corruption Commission and Ombudsman. However, they are not comprehensive whistleblowing laws; that is, these Acts are limited by their narrow scope, coverage and powers in respect of such disclosures. More importantly, these Acts do not encourage whistleblowers to make disclosures to the government department or agency that is the subject of the disclosure. Consequently, that agency cannot investigate or address the allegations or take remedial action. This Bill does not replace or repeal these Acts. Rather, this proposed whistleblowers legislation complements and adds to existing statutes. Unfortunately, improper, illegal or corrupt conduct often remains undetected because whistleblowers who are aware of such conduct remain silent. They do this for fear of criminal or civil action against them, being prejudiced in their employment or other reprisals. This Bill will protect whistleblowers against such reprisals. The Bill also takes into account the interests and rights of people who are the subject of disclosures. In doing so, it achieves the appropriate balance by ensuring, for example, that whistleblowers will not have protection when their disclosure is vexatious, misleading or knowingly false.

To assist members, I will now outline the principal features of the Bill: It is important to recognise that the Bill does not place any restriction on those persons who can make a disclosure, either within or outside the public sector. The Government is committed to ensuring the highest standards of ethical behaviour in state and local government. Therefore, all improper or illegal conduct must be identified, investigated and remedied. The Bill will enable any member of the public, as well as public officers, to make public interest disclosures. This is important because members of the public may be aware of improper conduct, illegal activities or maladministration within government. When this occurs, they should be able to report that to the relevant authorities.
Also, the Bill will protect whistleblowers in the private sector in limited circumstances when government contracts are involved. For example, when government departments have a contract with a private company to provide information

technology hardware or equipment, the company and any subcontractors come within the scope of the Bill so that a whistleblower can make a public interest disclosure about the improper use of government resources.

The Bill specifies the circumstances under which a public interest disclosure can be made; that is, for the purposes of the Bill, such a disclosure is made if the whistleblower believes on reasonable grounds that the information is true. Alternatively, it can be when the whistleblower has no reasonable grounds on which to form a belief about the truth of the information, but the whistleblower believes on reasonable grounds that the information may be true.

A second important feature of the Bill relates to what can be disclosed under the Bill. For this purpose, public interest information involves information that tends to show that in relation to the performance of a public function, a public authority, a public officer or a public sector contractor is, has been or proposes to be involved in any of the following activities -

improper conduct;
an act or omission that constitutes an offence under written laws;

an unauthorised use of public resources;

an act done or omitted that involves a substantial and specific risk of injury to public health, of prejudice to public safety or of harm to the environment; or

a matter of administration that can be investigated under section 14 of the Western Australian Parliamentary Commissioner Act 1971. Such section 14 matters include any decisions, recommendations or acts relating to matters of administration that affect persons in their personal capacity by any department or agency that can be investigated by the Ombudsman.

Public interest disclosures can be made in respect of a wide range of categories of agencies, departments and authorities, such as -

public service departments;
organisations, such as the Disability Services Commission, the Fire and Emergency Service Authority of Western Australia and the Government Employees Superannuation Board, which are specified in the Public Sector Management Act 1994;

local government authorities;

bodies established under written laws;

bodies established by the Governor; and

bodies that are declared by regulation to be a public authority.

Disclosure can also be made about public officers. Such officers include ministers of the Crown; parliamentary secretaries; members of Parliament; judicial officers; police officers; persons authorised under law to execute or serve any process of a court or tribunal for remuneration; public officers; members, officers or employees of public authorities; office holders; commonwealth officers working for the State; and any person holding office under the State of Western Australia.
Public sector contractors and subcontractors who supply goods or services, or perform a function under a contract with government are also caught by the Bill; that is, under this Bill whistleblowers will be able to make disclosures about public sector contractors or their subcontractors. This will ensure that the same level of openness and accountability applies to all persons who are directly or indirectly involved with or work for the Government. For example, improper or illegal use of public resources under contractual arrangements by the private sector will come within the scope of the Bill.

A further important aspect of the Bill is that to gain protection under the Bill, a whistleblower must make a public interest disclosure to a proper authority with responsibility for that matter. For example, in addition to the agency concerned, disclosures may also be made to a number of authorities -

disclosures regarding the actions of public officers could be made to the officer’s department;
disclosures relating to any offence under a written law could be made to the Police Service or the Anti-Corruption Commission;

disclosures which relate to a matter of administration that comes within the Parliamentary Commissioner Act 1971 or involves a public officer, can be made to the Ombudsman; and

disclosures relating to the use of public resources can be made to the Auditor General.

Therefore, whistleblowers have a number of options as to whom they make a disclosure. Members may be particularly interested to know that when a matter relates to a member of Parliament, a public interest disclosure can be made to the

Presiding Officer of the House to which the member belongs. When the disclosure relates to a judicial officer, it can be made to the Chief Justice.

For the purposes of the Bill, a public interest disclosure cannot be made to a department or agency that does not have responsibility for that matter. This will allow public interest disclosures to be made to public authorities that have the power to investigate the disclosure and take remedial action. Of course, by providing a range of other options, including independent authorities to investigate disclosures, the Bill enables whistleblowers to make disclosures to other authorities. This is particularly important when the whistleblower believes that the responsible agency will not or has not properly investigated the matter. As I have previously indicated, the whistleblower must believe on reasonable grounds that the information is true or that the information may be true.

Also, the Bill provides that a whistleblower’s liability for his or her own actions, apart from the disclosure, is not affected by a public interest disclosure. For example, if a whistleblower is a party to the behaviour that is the subject of the allegation, or the whistleblower defames the person who is the subject of the allegation in the media, the whistleblower does not receive any protection under the Act in respect of these actions merely because he or she has made a public interest disclosure.

The Bill also contains a number of important provisions that place obligations on departments and agencies. For example, a proper authority must carry out an investigation when the allegation is of substance. If the agency declines to investigate a disclosure, it must give the whistleblower the reasons for its refusal to investigate. To avoid wasting time and resources, the Bill provides that departments and agencies can refuse to investigate trivial or vexatious disclosures. However, departments and agencies must take appropriate action when they believe a person may be, may have been, or may in the future be, involved in the matter that may be the subject of a disclosure. This action can involve taking action to prevent the behaviour from re-occurring, referring the matter to an appropriate authority or taking disciplinary action.

Departments and agencies must also keep the whistleblower informed of the action taken, or to be taken, in relation to an investigation, unless it would jeopardise a person’s safety, the investigation or the confidentiality of another person who has made a disclosure. In addition, the whistleblower may request a progress report from the department or agency. All these measures will ensure that agencies investigate and take action, and keep whistleblowers informed about the progress and outcome of investigations.

The Bill provides a number of measures to protect whistleblowers. First, the Bill confers immunity from criminal and disciplinary offences and civil actions such as defamation and breach of confidence. However, for this protection to apply, the whistleblower must comply with the provisions of the Bill on the making of disclosures.

Secondly, reprisal action against whistleblowers is an offence and carries a maximum penalty of a $24 000 fine or two years imprisonment.

Thirdly, except in certain circumstances, information concerning a public interest disclosure will remain confidential. Agencies will be required to determine the likelihood of reprisal action being taken against the whistleblower, before the whistleblower’s identity is revealed. Agencies will be able to release information concerning a public interest disclosure when that information is necessary to assist an investigation or is required by natural justice. The Bill will amend the Freedom of Information Act 1992, so that freedom of information laws cannot be used to identify the whistleblower or the person about whom the disclosure was made.

Fourthly, an additional measure to protect whistleblowers from reprisal will be a new statutory tort of victimisation. Whistleblowers will be able to claim damages for an act of victimisation caused by reprisals that occur after the legislation has commenced. Alternatively, acts of victimisation can be dealt with under the Equal Opportunity Act 1984.

Fifthly, the Bill will place an obligation on chief executive officers to comply with its provisions, including those that provide protection to whistleblowers. To gain such protection, it is appropriate that whistleblowers make disclosures in accordance with the requirements of the Bill. For example, whistleblowers will lose protection under this legislation if they fail to assist any investigation or if they reveal publicly, in a manner other than permitted by the Bill, any information contained in a disclosure.

The Bill provides appropriate safeguards and protections for people who are the subject of a disclosure. For example, it is important that the identity of a person against whom an allegation has been made is protected. This ensures not only that disclosures are properly and fairly investigated, but also that a person who is the subject of allegations does not have his reputation damaged by false or malicious allegations. Therefore, the Bill makes it an offence for a person to make an allegation when he knows it to be false or misleading in a material particular, or is reckless about whether it is false or misleading in a material particular. The penalty is a $12 000 fine or one year imprisonment.

To ensure compliance by agencies, the Bill provides that the Commissioner for Public Sector Standards must develop a code specifying minimum standards for persons who may receive a public interest disclosure, and guidelines on internal procedures relating to the obligations of proper authorities. In addition, the Commissioner for Public Sector Standards will be responsible for ensuring that agencies comply with the legislation.

Chief executive officers of public authorities will be required to appoint a person to receive disclosures, provide protection to employees who make a disclosure, ensure that their agencies comply with the legislation and code, and prepare procedures relating to agency obligations under the legislation. Agencies that receive disclosures must annually provide information to the commissioner on the number of disclosures and the result of any investigations, including any action taken as a result of each investigation.

To preserve their independence, the Chief Justice and the Presiding Officers of Parliament are not required to comply with some provisions of the Bill. Examples include obligations to carry out an investigation, take action, notify the informant of the action to be taken, and comply with the Commissioner of Public Sector Standards’ code and guidelines. Despite these not being mandatory requirements, it is expected that these persons will, where necessary, carry out an investigation and take appropriate action. In circumstances in which an investigation is not carried out, a whistleblower can take the disclosure to another appropriate authority, for example, the Police Service or the Anti-Corruption Commission.

Similarly, the Bill exempts the Parliamentary Commissioner and the ACC from some of its provisions. Again, this will preserve the statutory independence and operational effectiveness of those authorities; that is, where a disclosure falls within the existing legislation of those authorities, it can be dealt with pursuant to that legislation. Otherwise, it will need to be dealt with under this Bill.

It is important that members are aware that the Bill will be retrospective in limited respects. For example, a whistleblower who makes a public interest disclosure after the legislation has commenced, but which relates to activities occurring prior to that date, will receive protection. In addition, a whistleblower will obtain protection under the legislation and be able to claim damages when the disclosure occurred prior to the commencement of the legislation but the reprisal occurred after its commencement. Under this Bill, whistleblowers will not be able to receive damages for reprisals that occurred prior to the commencement of this legislation.

In providing protection to whistleblowers when they make disclosures under the Bill, this legislation will greatly facilitate the identification and elimination of improper conduct in State and local government, and their contractors. An obvious and beneficial result will be much more open and accountable government.

It is unfortunate that such important legislation was not brought before the Parliament before today. It is now a decade since the importance of whistleblower legislation was recognised and recommended to the Western Australian Government. I trust that all members will support the passage of this legislation, which will be a cornerstone of accountability in government. On behalf of the Government, I have much pleasure in commending the Bill to the House.

Debate adjourned, on motion by Mr Bradshaw.