2.5 Programas de mejoramiento para la convivencia escolar
2.5.2 Programa Nacional para la Prevención Social de la Violencia y Delincuencia
Paragraph (b) of the definition of public interest information in the WBP Act directly addresses maladministration.
Maladministration is unhelpfully defined in the WBP Act to include impropriety or negligence.
The definition of public interest information means information that tends to show that a public officer is guilty of maladministration in or in relation to the public officer’s performance of his or her official functions.
That conduct must be something different from an adult person being involved in an irregular use of public money or substantial mismanagement of public resources: see (a)(ii) and (iii) of the WBP Act.
The understanding of what is meant by maladministration must be informed by the definition of public interest information and in particular by (a) of the definition.
23 Section 12 Public Interest Disclosure Act 2010 (QLD).
96
That part of the definition that relates to maladministration, the definition of which I have mentioned, came as a result of consultation and was not part of the first draft of the Bill.24
Because maladministration takes its colour from the whole of the definition, “maladministration” can be understood to include the making of decisions that are wrong, contrary to law, unreasonable or unjust, or where a public officer fails to provide reasons for a decision where reasons ought to have been provided. That is the kind of administrative act that is usually within the jurisdiction of an Ombudsman and is the case in South Australia.25
As I have mentioned, the former Ombudsman Mr Bingham was of the view that “maladministration” for the purposes of the WBP Act was too wide. If maladministration may be understood that way, and I think that is likely to have to be the way in which it should be understood in the WBP Act, a person might reasonably think that he or she would be entitled to disclose something that involved an administration decision that was adverse to that person and obtain the benefits of the WBP Act. If that expectation is not realised, it is likely to add to that person’s sense of grievance.
As a matter of public policy, it is difficult to see that there is a public interest in extending protection in relation to complaints about administrative acts that involve error. For that reason the protection of the WBP Act ought not to extend that far.
24 M R Goode, ‘Policy Considerations in the Formulation of Whistleblowers Protection Legislation: The South Australian Whistleblowers Protection Act 1993’ (2000) 22
Adelaide Law Review 27, 35.
25 Section 25, Ombudsman Act1972 (SA).
97
The ICAC Act has its own more prescriptive definition of “maladministration in public administration”.
The definition contained in the ICAC Act captures conduct of a public authority or a public officer that needs to be disclosed in the public interest because of the seriousness of the conduct. The required threshold of seriousness is “substantial mismanagement”, which is used in both placita (i) and (ii) of (a) in the ICAC Act. Administrative actions that are regarded as maladministration simply because they are in error or are administration acts that are unreasonable will be excluded unless they reach that threshold.
The phrases “irregular and unauthorised use of public money” and “substantial mismanagement of public resources” in the definition in the ICAC Act are also used in the WBP’s definition of public interest information: see (a)(ii) and (iii). That part of the WBP Act definition captures the more serious maladministration without having to resort to a broad concept of maladministration in (b).
The present WBP Act does not address maladministration in the private sector nor should it. The management or mismanagement of the private sector is for the private sector and there is no reason for government to interfere unless the mismanagement results in a regulatory or criminal breach. For these reasons I think that the definition of maladministration in the WBP Act is too wide and captures conduct that is not the type of conduct that should, if disclosed, lead to whistleblower status or protection.
Recommendation 4: That maladministration as it is presently defined, and its use in the definition of public interest information, not be included in WBL.
For future WBL public interest information should pick up the conduct that is defined separately in the ICAC Act as corruption, misconduct and maladministration in public administration.
I have mentioned the definitions of the other types of unacceptable conduct in public administration in the ICAC Act. For the reasons that follow I think these definitions are better suited to serve the purposes of WBL for this State than concepts of illegal activity and maladministration in the WBP Act.
The first type of conduct which the ICAC Act is concerned is the most serious conduct: “corruption” which must be, as I have already said, a criminal offence and is for the reasons already mentioned any criminal offence by a public officer while the public officer is acting in his or her capacity as a public officer. That definition would pick up the concept of illegal activity in the WBP Act, at least as it applies to the public sector. For the reasons already mentioned I think that WBL should be limited to reporting illegal activity in the public sector.
The ICAC Act also deals with the misconduct of a public officer and treats as misconduct any contravention of a Code of Conduct that could result in disciplinary action. That it seems to me is also conduct that should reported to an appropriate authority to be investigated and to be dealt with if made out in accordance with the relevant Code of Conduct.
The third type of conduct with which the ICAC Act is concerned is maladministration, the definition of which I mentioned earlier.
It is in the public interest that that these types of unacceptable conduct in public administration are exposed, investigated, and addressed.
There are three powerful arguments for providing that a public interest information disclosure be in the same terms of the definitions of corruption, misconduct and maladministration in the ICAC Act.
First, those definitions capture the kind of conduct that is sufficiently serious that it should be reported. That is the underlying assumption in the ICAC Act. Secondly, and crucially, it is conduct that if reported must be investigated. The conduct will be investigated and dealt with in accordance with the ICAC Act. That, as the research makes clear, is a very important factor in motivating people to report unacceptable conduct i.e. confidence that it will be dealt with by an appropriate body.
Thirdly, if the definitions in the WBL and the ICAC Act were the same the risk of confusion for public officers in reporting conduct that should be investigated would be avoided.
The definitions of public interest disclosure in WBL should be consistent with the definitions of unacceptable conduct in the ICAC Act
Recommendation 5: That the definition of public interest information in WBL in public administration be consistent with the definitions of corruption, misconduct and maladministration in public administration in the ICAC Act.