Page 2800 - Week 07 - Thursday, 7 June 2012
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The bill is broken into sections that focus in turn on the scope, procedures and protections. The scoping section sets the jurisdiction of the bill, or, in other words, the “who”, the “what”, and the “how”. In terms of the “who”, anyone may make a disclosure. Unlike other jurisdictions, the bill allows anyone who observes wrongdoing in the public sector to make a disclosure. This reflects the proximity of the Canberra community to the services provided by government.
In terms of the “what”, a disclosure must be about public sector conduct. Anything that could constitute misconduct, maladministration or criminal activity qualifies. Things that threaten the health or safety of the community or environment also qualify. Public sector entities captured under the bill include directorates, authorities, corporations, commissions, MLAs and the Office of the Legislative Assembly. Essentially, any organisation performing a public function or expending government resources, including those acting on behalf of government like contractors, community partners and volunteers, will be covered by the legislation.
In terms of “how” a public interest disclosure can be made, the bill recognises government’s responsibility to facilitate the reporting of wrongdoing. The bill not only provides formal channels for making a PID through specific disclosure officers, but also provides a no wrong door approach. This means that a disclosure made to certain people who are not disclosure officers, like a person’s supervisor, will still be captured by the legislation. The bill also allows for an inadvertent PID to be made. This would occur when the discloser does not intentionally make a PID but nevertheless presents information that may constitute a PID.
There is a consequent responsibility on those making disclosures to do so in good faith. The bill clarifies that where a person makes a disclosure that they know is false or misleading, they will not be afforded legislative protection.
The second part of the bill deals with administrative responsibilities and specifies key roles for certain people in the PID framework. The Commissioner for Public Administration is given the oversight responsibility that is central to effective public interest disclosure regimes. The Ombudsman and the Auditor-General have powers to receive and investigate disclosures. The Head of Service is responsible for investigating most disclosures that relate to ACT public service entities. And heads of public service entities are given a range of responsibilities and powers to ensure fair and robust processes are carried out.
The third section of the bill provides an avenue for disclosure to members of this Assembly and journalists. This is a supplementary avenue for when a genuine PID is made and the responsible entity fails to take reasonable or timely action. Even though this is relatively new for Australian disclosure laws, the idea dates from 1994, when the commonwealth parliament Senate Select Committee on Public Interest Whistleblowing recommended the creation of a two-stage process for internal and external disclosures which would protect disclosures to the media. The bill extends this concept to cover disclosures to parliamentary members. In doing so, the bill sets strict conventions about when a report to an MLA or journalist will be covered by the legislation. This section of the bill is an avenue of last resort when there is a
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