SA Government Introduces A New Public Interest Disclosure Bill 2018

On Wednesday 16 May 2018, the SA Attorney General, the Hon V.A. Chapman, introduced the Public Interest Disclosure Bill 2018 ("the Bill") into the SA House of Assembly. In broad terms, the legislation is described as being intended to encourage and facilitate disclosures of certain information in the public interest by ensuring that proper procedures are in place for the making of, and dealing with, such disclosures and by providing protection for persons making such disclosures. 

The Bill also makes related amendments to the  Local Government Act 1999 (SA) and the Public Sector Act 2009 (SA);and repeals the Whistleblowers Protection Act 1993 (SA).

This Bill is part of a package of related legislation which includes the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018 and the Evidence (Journalists) Amendment Bill 2018, both of which were introduced into the SA House of Assembly on Thursday, 10 May 2018. The Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018 provides for changes to the operation of the Commission while the Evidence (Journalists) Amendment Bill 2018 provides for the introduction of ". . . a default position that journalists cannot be compelled to answer a question or produce any document that may disclose the identity of a confidential informant". 

About the Bill - Background

The Bill repeals the Whistleblower Protection Act 1993 which the Attorney-General, in her second reading speech, says is "in accordance with the Independent Commissioner Against Corruption’s recommendation following a review of the effectiveness of that Act". The Bill proposes to repeal that Act and replace it with a scheme more in line with contemporary attitudes about disclosure of wrongdoing in public administration and which recognises the existence of the Independent Commissioner Against Corruption and the Office of Public Integrity.

The Whistleblowers Protection Act 1993 has operated for 20 years and according to the Attorney-General, "since its inception there has been little recourse to its protection". The Independent Commissioner Against Corruption was requested to review the legislation in March 2013, and reported his findings to parliament in 2014. In his report the commissioner made 30 recommendations which supported a rewriting of the law.

The former SA government introduced a similarly titled Public Disclosure Bill in 2016 which was laid aside on 31 October 2017 after a failure to resolve a deadlock on amendments to the Bill. The previous Bill only implemented parts of the ICAC Commissioner's report and according to the current Attorney-General did not provide "any true substantive whistleblower protection reform".

About the Bill - Key Purpose

The key purpose of the Bill is according to the Attorney-General, to:

• facilitate disclosures about public administration information by public officers or former public officers;
• ensure that public disclosures are properly assessed and, where necessary, investigated and acted upon; and
• ensure that a public officer making a disclosure is protected against reprisals.

The Bill also protects disclosures by members of the public about wrongdoing in the private or public sector, where the information is disclosed to an appropriate recipient and the information relates to a substantial risk to public health or safety and the environment. 

For a disclosure to be protected, the person making it must believe on reasonable grounds that the information is true or believe on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure - a person making an appropriate disclosure is not subject to any liability as a result of that disclosure.

A duty is also imposed on a person(s) who receives an appropriate disclosure to take action in relation to the disclosure and take reasonable steps to keep the informant advised of the action or the outcome of any investigation. The time frame for doing this is, notification within 30 days that an assessment has been made or where notification is not received, within 120 days or longer (as may be specified in a written notice to the person making the disclosure) of the outcome of an assessment. People to whom disclosure can be made are, a member of parliament or a journalist.

Definition of Journalist

The inclusion of journalists as people to whom disclosures could be made was according to the Attorney-General "a key recommendation from the ICAC report". The Bill defines "journalist" as "a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium" (see proposed section 4). The term "News Medium" is also defined as a  "medium for the dissemination to the public or a section of the public of news and observations on news" (see proposed section 4). The definition of "News Medium" is based on the definition in the Evidence Act 1995 (NSW) and is consistent with the approach in the Evidence Act 2008 (Victoria).

Speaking on the definition of "journalist", the Attorney-General said:

In presenting the Bill the Attorney-General stated that she called on the opposition to support the Bill saying also that it was:

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Public Interest Disclosure Bill 2018 and explanatory materials as reported in TimeBase's LawOne Service

Public Interest Disclosure Bill 2016 and explanatory materials as reported in TimeBase's LawOne Service

Evidence (Journalists) Amendment Bill 2018 and explanatory materials as reported in TimeBase's LawOne Service

Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018 and explanatory materials as reported in TimeBase's LawOne Service