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Legislative Assembly for the ACT: 2011 Week 08 Hansard (Wednesday, 17 August 2011) . . Page.. 3359 ..

whistleblower has suffered a loss because of their disclosure, rather than just an executive policy or strategy.

The issue of compensation is extensively considered in the range of reports on public interest disclosure laws and there is consensus that there should be a statutory mechanism so that whistleblowers do not have to depend on the common law for compensation. I have not come across any commentary to support the idea of what would essentially be ex gratia payments based on an executive policy.

Equally, it is well accepted that the common law is not sufficient. To my knowledge there has been only one successful case litigated, and that was in New South Wales. It was Wheadon v State of New South Wales. Whistleblowers are vulnerable, and protections should be put in place that do not involve victims having to litigate to be compensated for their loss.

We also need to be aware of the appropriate interaction with the industrial relations system, as in many cases these are probably the most relevant remedies and the ones most sought by victims would be through that system. The House of Representatives legal and constitutional affairs committee has also considered this issue. At page 103 of their 2009 report they found:

Where reprisal occurs, mechanisms should be available to protect an individual and to compensate for detriment suffered by a person making the disclosure.

I think we all agree in principle that compensation should be available. The exact details of how it should be determined still need to be finalised and should form part of the broader review in the exposure draft proposal. Rather than just a strategy for compensation, we need legislative change and a statutory mechanism that binds the government to awards of compensation through a mechanism that operates in a more flexible tribunal-style manner, that also considers industrial relations remedies and that can work with the public service and individuals and deliver the best outcomes for the individual case. Of course, if that process fails to resolve the matter or the action is taken against a particular individual, recourse to the courts will be required.

There are of course a whole host of other issues with whistleblower laws and I will discuss these further in the debate on my motion later today. A comprehensive review and new legislation are a better way forward than what is proposed in this motion. I hope that today’s motions will send a very clear message to the government that the parliament expects action and that the status quo is unacceptable. Changes need to happen. Public servants need to be empowered to do the right thing and to act in accordance with their code of conduct. Ultimately, it is in the territory’s interest and in the best interests of all public servants to do this.

Debate interrupted in accordance with standing order 74 and the resumption of the debate made an order of the day for a later hour.

Sitting suspended from 12.30 to 2 pm.

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