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Public Interest Disclosures (Members of Parliament) Bill 2021

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 16 August 2023

Tags: Whistleblowers, Integrity, Legislation

Dr WOODRUFF - Madam Deputy Chair, I move -

That the amendments of the Legislative Council be agreed to.

Before speaking to the amendments, I thank a number of people in respect of the bill. I want to thank the Attorney-General, Mr Sealy from the Attorney-General's office and Mr Patterson from the department for their work on these amendments, as well as anyone else from your office, Attorney-General, the department and the OPC who was involved.

The approach on these amendments was a very collaborative one and our feedback on the first draft of the amendments was taken on board, which is appreciated.

I also thank the member for Mersey, Mike Gaffney, MLC, for kindly agreeing to take carriage of the bill through the Council, which he did with a high level of confidence and attention to deal as we would all expect. Mr Gaffney put considerable work into communicating with members in the other place and provided us with insightful advice on how to handle things like timings and briefings for members.

I also thank the Leader of the Government in the Legislative Council, Mrs Hiscutt, and her office for assisting in sorting out the arrangements.

I provide a very brief reminder to members. The Public Interest Disclosures (Members of Parliament) Bill 2021 amends the Public Interest Disclosures Act 2002 to allow disclosures in relation to a member of parliament to be made to either the Ombudsman or the Integrity Commission. The bill also extends the act to allow for a disclosure in relation to an employee of a member of parliament to be referred to either the Ombudsman or the Integrity Commission. As it currently stands, the only authority a person can refer an employee of a member of parliament to is the Ombudsman.

The time this bill was first debated, the Attorney General indicated her Government's support for the bill subject to a further assessment taking place prior to the bill being introduced to the Legislative Council. This further work identified an issue with our bill regarding a situation when a disclosure in the public interest relates to a matter of parliamentary privilege. Amendments were then drafted. First, such that disclosures can go to the Ombudsman, the Integrity Commission or the Speaker or President. Second, that disclosures relating to matters of privilege can be referred by the commission or the Ombudsman to the Speaker or President.

We then requested that those amendments be amended to provide that in circumstances where the commission or Ombudsman refers a disclosure on a matter privilege to the Speaker or President, this would not occur unless permission has been granted by the person who lodges the disclosure. That amendment was incorporated, with an additional caveat that permission would not be required if there is no means of contacting the person who made the disclosure in the first place.

I will now detail the specific amendments.

Clause 4 amended. As originally drafted, clause 4 amended section 7 of the principal act. It allows disclosures in relation to a member of parliament or a staff member of a member of parliament to be made to either the Ombudsman or the Integrity Commission. The bill removed reference to the Speaker and President from this section.

The amendments to this clause reinsert the Speaker and President as options for a person to make a disclosure to while retaining the Ombudsman or Integrity Commission as disclosure options introduced by this bill. It neither therefore prescribes or compels who a person could make a disclosure to. The amendments do not alter the arrangements introduced by the bill regarding a staff member of a member of parliament.

Clauses 5, 6, 8, 9 and 10 are omitted. Those clauses of the bill remove references to the Speaker or President from sections 15, 23, 84, 87 and 88 of the principal act respectively. These amendments were consequential to the removal of the Speaker and President as a disclosure option under the act. These clauses have been left out as a consequence of the amendment that retains the Speaker and the President as disclosure options.

New clause A introduces a new section 29CA and this deals with the referral of matters from the Integrity Commission to the Speaker or President. The retention of the Speaker or President as disclosure options and the new inclusion of the Integrity Commission as a disclosure option require new provisions in the act to allow the commission to refer matters to the Speaker or President. As I outlined earlier this new clause provides that the Integrity Commission can only make a referral to the Speaker or President with the consent of the person who made the disclosure. The exception to that rule is an instance where a person did not provide information that enables that person to be contacted.

New clause B under section 29C of the principal act: if the Integrity Commission is referred a matter by the Ombudsman or a public body the commission may either deal with the disclosure under the Integrity Commission Act 2009 or refer the disclosure back to the Ombudsman or public body.

Section 29D(2) requires the Integrity Commission to notify the referring body and the person who made the disclosure of its decision under 29C. New clause B amends section 29D(2) to add a reference to the new section 29CA introduced by the new clause A that we have here so that the same notification is made if the Integrity Commission refers on the disclosure to the Speaker or President or otherwise is not required to take further action under that section.

New clause C introduces a new section 36 allowing the President or Speaker to refer a disclosure to the Ombudsman. This is a similar provision to the current section 78 in part 8 which is repealed in this bill. New clause D makes amendments to section 37 of the act consequential to the insertion of the new clause 36.

Section 37 of the act ceased to have effect in 2009 when the then section 36 in the act was repealed. However as there is a new clause C that inserts a new section 36 relating to Ombudsman referrals section 37 has been amended accordingly. New clause E section 42 allows the Ombudsman to refer matters to a public body if appropriate, otherwise section 39 generally requires the Ombudsman to investigate every disclosure the Ombudsman has determined is a public interest disclosure.

New clause E inserts provision new section 42A to allow the Ombudsman to refer a matter relating to a member of parliament to the Speaker or President if the Ombudsman considers it appropriate to do so. As in the new section 29CA this section first requires consent from the person who made the disclosure unless the person did not provide information that enables them to be contacted.

New clause F part 6 of the act deals with investigations of disclosures to the Ombudsman relating to members of parliament. Section 46 part 6 currently provides to whom the Ombudsman should give notice of a disclosure, the new clause F amends section 46 clarifying that the Ombudsman would give notice before conducting an investigation of a disclosed matter relating to a member of parliament and would give that notice to the Speaker or President.

New clause G section 53 of part 6 provides to whom the ombudsman gives an opportunity to comment if there may be grounds for making a report adverse to a public officer. The new clause G amends this section to provide it is the Speaker or President in the case of a member of parliament.

Section 55 of the act will continue to require the Ombudsman to give a person an opportunity to be heard before any adverse comment is made about them in a report.

A new clause H amends section 56 to clarify, as was the case under part 8, now repealed, to whom a report in relation to an MP is provided to the Speaker or President.

I apologise to people who are listening for having to rattle through that but it is a time-limited period. I finish by thanking again all members for their very collaborative way of working through these complicated issues. I believe that we have landed in a very good place that provides for the protecting of matters of parliamentary privilege being taken through appropriate channels with correct authority.

This bill was tabled last year well before the Motion for Respect: Report into Workplace Culture in Ministerial and Parliamentary Services but the bill subsequently became even more relevant to that report's findings and it enables a sensible and safe process for the assessment of allegations that is outside of politics or the fear of reprisal. I commend these amendments.