Programa Nacional de Convivencia Escolar (PNCE)

The broad sweep of the present WBP Act captures many kinds of “whistleblowers”.

Some of those WBP Act “whistleblowers” are not whistleblowers in the sense in which the word is usually understood. A member of the public who reports a criminal offence committed against him or herself to Police is not a person who has inside information, and he or she is not at risk of victimisation in an organisational context.

As I have said, anyone can be a whistleblower for some purposes of the WBP Act. This means that the Act covers private sector employees who blow the whistle in relation to illegal activity, or in relation to substantial public health or safety or environmental risks created by the whistleblower’s employer.

The argument that whistleblower protection should be available for the broad range of complainants was made as early as 1991 by the Queensland Electoral and Administrative Review Commission reporting in the wake of the Fitzgerald Commission.26 _{South Australia adopted this approach in 1993}

when it enacted the WBP Act, but Queensland did so only in part.

26 _{Electoral and Administrative Review Commissioner, Report on Protection of}

Whistleblowers (Queensland Government, 1991).

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A number of Australian jurisdictions have chosen not to adopt such a broad based approach, but instead have concentrated on regulating public interest disclosures made by persons directly connected with the public sector.27

Some argue that public sector employees should not have special protections available that are unavailable to the general public. At first sight this argument has superficial appeal.

However, the better argument favours a regime for the public sector. Government has a duty to ensure that all of its agencies of whatever kind provide good governance. Shaping a whistleblower protection regime which contributes to the discharge of duties should be the underlying rational for WBL, whatever else the legislation manages to achieve.

It might be argued that the ICAC Act and the protection which it offers a public officer who reports unacceptable conduct to the OPI now makes the protections of a WBL unnecessary. That is not the case.

Although the ICAC Act does provide some protections to public officer whistleblowers when those public officers disclose unacceptable conduct to OPI, those protections need to be augmented by WBL for three reasons: first, because unacceptable conduct may first be reported to someone other than the OPI and thus whistleblower protection is required for that report; secondly, because a public officer may disclose unacceptable conduct internally within his or her agency, in addition to any report to OPI, and whistleblower protection should apply to that internal report; and thirdly because a public officer may be ignorant or mistaken about the extent of his

27 _{The Commonwealth, New South Wales and Tasmania have taken this approach.}

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or her obligation to report to OPI, but should nevertheless enjoy whistleblower protection.

Recommendation 6: That WBL protect public officers (as those public officers are defined in the ICAC Act) in relation to disclosures about unacceptable conduct in public administration.

The next question to be determined is whether South Australia’s legislation should continue to provide protections, and the same protections, to any person who makes disclosures of public interest information in relation to conduct in the public sector?

There are three reasons why it is said that WBL is not needed to protect members of the public who may wish to make a disclosure in relation to unacceptable conduct in public administration.

First, a member of the public does not need special encouragement to make a disclosure about unacceptable conduct in public administration because he or she is unlikely to be subject to organisational pressure to refrain from reporting the unacceptable conduct.

Secondly, a public officer is more vulnerable than a member of the public to the kind of victimisation that WPL seeks to prevent. A member of the public is unlikely to lose his or her job, suffer demotion, or face disciplinary action as a consequence of making a disclosure about unacceptable conduct in public administration.

Thirdly, members of the public who wish to make a complaint about unacceptable conduct in public administration already have means by which they can do so whilst enjoying an appropriate level of protection. Members of 103

the public do not make complaints to persons or agencies that make the members of the public vulnerable to victimisation.

The OPI and Ombudsman both provide a means for persons who are members of the general public to make complaints about public sector wrongdoing.

Under the ICAC Act, any person, including a member of the public, may make a report in relation to unacceptable conduct in public administration. The identity of a person who does so is protected under the ICAC Act, and the ICAC Act complainant is protected by stronger protections against victimisation than are available to a whistleblower under the WBP Act.28

A member of the general public who is directly affected by an administrative act may make a complaint to the Ombudsman in order to have that complaint investigated and resolved. Although a person making a complaint to the Ombudsman does not have a right to have his or her identity kept secret under the Ombudsman Act the Ombudsman can control the dissemination of information obtained in the course of the administration of the Ombudsman Act.29

Both the Ombudsman Act and the ICAC Act contain provisions concerning a duty to inform a complainant about an outcome of a complaint.30

The protections afforded by the ICAC Act are generally sufficient and sufficiently well adapted to protect members of the public who wish to make public interest disclosures about public sector wrongdoing, subject to some

28 _{The difference between these two victimisation provisions will be discussed in detail} below.

29 _{Section 26 Ombudsman Act 1972 (SA).}

30 _{Sections 17(3) and 27 Ombudsman Act 1972 (SA) and s24(8) ICAC Act.}

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recommendations for improvement made below. In my opinion, there is no longer a need for South Australia’s whistleblowers regime to protect this kind of disclosure.

Accordingly, WBL need not protect a disclosure made by a member of the public in relation to unacceptable conduct in public administration.

Recommendation 7: That WBL no longer cover public interest information disclosures made by members of the public in relation to public sector wrongdoing, because the ICAC Act provides a sufficient specialist channel for such disclosures, and the office of the Ombudsman provides an additional channel for persons directly affected by public sector decisions and other administrative acts.

Facilitating public interest disclosures about conduct causing a substantial risk