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| Madam Speaker, I move that the bill be now read a second time. This bill implements the government’s commitment to legislation encouraging and facilitating the disclosure of information about serious misconduct or mismanagement in the public sector - also known as whistleblowing. The public sector covered by the bill includes local government councils, Police, government-owed companies, and bodies established by an act for a public purpose. The bill intends to protect persons who make disclosures. It also establishes a framework, including appointment of a Commissioner for Public Interest Disclosures, for investigating the disclosures and ensuring that the appropriate action is taken where a disclosure is found to be valid. Persons who make public interest disclosures play an important role in exposing serious public sector wrongdoing. They assist in ensuring that public organisations are accountable, and that officers in public organisations are accountable for their actions. The ability to make a public interest disclosure leads to higher standards of performance and increased public confidence in the public sector. This bill is not a response to any lack of professionalism within the public sector; it is a demonstration of support for the principles of open and accountable government. The bill is a result of a long and extensive consultation process, including the release of the discussion paper and a discussion bill for public comment. The submissions received during the consultations were supportive of the aims of the legislation. We are gratefully to all the people and organisations who contributed to the development of the bill through their submissions. We consider the bill to be a comprehensive and appropriate legislative scheme for the Northern Territory. The proposed legislation provides that any person can make a disclosure about a public officer or public body. The information and identity of the person disclosing the information will be kept confidential. Furthermore, the person making the disclosure cannot be sued or dismissed from his or her place of employment for making the disclosure. The bill comprehensively defines a ‘public officer’ and ‘public body’ ensuring there is wide coverage under the legislation of persons and bodies about whom a person can make a disclosure. A public body includes public service agencies, local government bodies, the police force, the university, public hospitals, government-owned corporations, bodies established under legislation for a public purpose, and other prescribed bodies supported by government funds or controlled by the Northern Territory. Public officers include the members of the Legislative Assembly and local government councils, members or employees of public bodies, and public office holders who are appointed by the Administrator or a minister. Some persons are excluded for public policy reasons consistent with the operation of similar legislation such as the Ombudsman legislation. For example, judges and the Auditor-General and bodies such as courts and tribunals and boards with juridical or quasi judicial functions performing deliberative functions are excluded. These persons and bodies are either independent of or accountable to the parliament. The main features of the bill are as follows. Disclosures may be made by any member of the community who believes that a public body or public officer has engaged, or is engaging, or intends to engage in improper conduct in their public capacity or has caused or threatened harm in reprisal for a disclosure. Improper conduct is defined as conduct in the performance of official duties that would, if proved, either constitute a criminal offence or reasonable grounds for dismissal involving bribes, improper inducements or other forms of dishonesty, inappropriate bias, breach of public trust, or misuse of confidential information, or involve the substantial misuse or mismanagement public resources, a substantial risk to public health or safety, a substantial risk to the environment, or substantial maladministration that specifically substantially and adversely affects someone’s interests. Matters that are purely policy or personal, including employment-related grievances, will not fall within the legislation. The bill makes it clear that, to fall within the protection of the legislation, the disclosure must concern behaviour that is sufficiently serious to either constitute a criminal offence or reasonable grounds for terminating the employment of the relevant officer, or behaviour that is substantial, that is the threshold for the conduct. It is an offence to make false or misleading disclosure, carrying a maximum penalty of 400 penalty units, which is currently $44 000 or 2 years imprisonment. This reflects the serious nature of the disclosure and the possible consequences flowing from it. Further, the Commissioner has the discretion to not investigate disclosed matters if satisfied that the disclosure is an abuse of process, for example, vexatious, or contains misleading information, or the information is trivial or has already investigated, or where the person making the disclosure had knowledge of the matter for more than 12 months before making the disclosure, or there is no reasonable prospect of obtaining relevant information. The threshold test of criminal, or dismissable or substantial misconduct, together with the discretion to investigate, will ensure that inappropriate, vexatious or trivial disclosures will not be investigated. The bill provides that the disclosure can be made to either the Commissioner or to the chief executive of the appropriate public body, except where the disclosure relates to a member of parliament. Disclosures which relate to a member of parliament must be made to the Speaker, who determines whether or not the matter should be investigated. Where a disclosure is made to a chief executive, it must be referred on to the Commissioner to deal with. This ensures that, in a small jurisdiction, the expertise for dealing with disclosures is maximised in the Commissioner’s office. It also ensures consistency of procedures and decisions, and can prevent the doubling up of investigations where a matter may be reported to more than one chief executive. Madam Speaker, for a disclosure to be protected under the legislation, it must, if true, show improper conduct, and must also be made to the appropriate person in accordance with the prescribed procedures under the act. A disclosure made in some other manner, for example, to the media or at a public meeting revealing information which would be confidential, will not be protected. Information that is an abuse of process or that the disclosure knows is false or misleading will also not be protected. However, a person may make a disclosure anonymously and about the conduct that occurred prior to the commencement of the legislation. The Commissioner has a duty to investigate disclosures unless they fall within the discretion as to vexatious, trivial old matters, etcetera, or are referred to another body such as the Ombudsman, the Auditor-General or the Police Commissioner. Investigations are private, and while there is no requirement to hold a hearing during investigation, the Commissioner may do so. For disclosures to be fully and properly investigated, the Commissioner has similar powers to those of a Royal Commissioner, to require information or documents to be provided, or persons to attend for examination to answer questions under oath or produce documents. If a person is required to attend before the Commissioner for examination, the Commissioner may allow the person to be legally represented. The Commissioner is also able to enter and inspect premises of public bodies and public officers for the purposes of conducting investigations at any reasonable time. Madam Speaker, one of the critical aspects of the bill is the requirement for confidentiality. It is vital to protect the identity of the person making a disclosure as far as possible, as well as the information revealed during the investigation, to encourage people to speak out about improper conduct. Therefore information collected during the course or as a result of a disclosure investigation, not being information in the public domain, is confidential information. It is an offence to improperly disclose or use information, for example to benefit or harm a person with a penalty of 400 penalty units which is currently $44 000 or two years imprisonment. However the information may be disclosed in limited circumstances for the purposes of performing official functions under the legislation or in proceedings in relation to an offence against the legislation or for the purposes of consulting a legal practitioner. The identity of the person who makes a disclosure and the identity of the person about whom the disclosure is made are further protected. The proposed legislation requires that information tending to identify a person should only be disclosed with their consent or in connection with a prosecution or reprisal action or in obtaining legal advice or where the commissioner considers natural justice requires it or that the information must be disclosed to effectively investigate the disclosure or in the public interest. A person’s right not to incriminate him or herself is provided for in the proposed legislation. Though the commissioner has power to require a person to produce documents, give information, or answer any question, any information produced in response to the commissioner that would tend to incriminate the person is not admissible as evidence in any civil, criminal or disciplinary proceedings, except in relation to proceedings for an offence against the act or reprisal action. This balances the person’s right not to incriminate him or herself. Restricting the use of information obtained during an investigation encourages persons who have information to come forward and give that information fully, protects the identity of the person who has made a disclosure so as to minimise the risk of reprisal actions, and protects the rights of the person who is the subject of the disclosure. Clause 14 of the bill sets out a range of protections for persons who make public interest disclosures. For example, a person who makes a public interest disclosure does not incur any civil or criminal liability or become liable for disciplinary action for making that disclosure. In particular the protection extends to the disclosures made in breach of an obligation of confidentiality. Thus, confidentiality provisions in contracts of employment or under the Public Sector Employment and Management Act do not apply to the making of public interest disclosures. There is also a provision from defamation actions. A disclosure of public interest information is to be treated as absolute privilege. However, the protections do not extend to disclosures that are an abuse of process or where the disclosure knows the information is misleading or to their own conduct. Thus if a person who makes the disclosure has taken part in improper conduct that they are reporting then they are not protected in relation to their own conduct. The bill also protects disclosures by making an offence, punishable by up to 400 penalty units or two years imprisonment to take or threaten detrimental action in reprisal against the person who has made or intends to make a disclosure or has cooperated in the investigation of the disclosure or has been a witness or provided information to an investigating official. In addition to the offence of taking reprisal action, the bill provides a right of action in court for the person who is the subject of that reprisal action to sue for damages. It enables the person to apply for an injunction or an order requiring the person who took or is taking reprisal action to remedy that action. Further, the bill ensures that employees are not unfairly treated during an investigation of a disclosure. It enables an employee under the Public Sector Employment and Management Act who has made a disclosure to request relocation because of reprisal action. A public sector employee also has the right to undertake grievance procedure under the Public Sector Employment and Management Act where he or she has been relocated as a reprisal action. I now move on to other important features of the bill. As mentioned earlier … |