Wednesday, 10 May 2023
Public Interest Disclosure Amendment (Review) Bill 2022; In Committee
I have to say that those answers don't address the concerns that were raised by the Ombudsman's office. It highlights the concerns the Greens have with the form of this amendment because the proposal that was being put forward by a number of stakeholders was that we adopt the wording in the Moss Review, which is that matters that are solely personal, work-related matters are excluded from the PID act, but you limit the carve-out to just that. It's an easy test. You can see the test readily applied. But the government now has, effectively, a first-stage test under subclauses 29(2A) and 43(4) where it says:
(2B) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, the disclosure is not prevented from being a public interest disclosure …
That's likely to be a highly contested definition in circumstances. If it gets through that gateway, there is a separate test that may apply to the same complaint under section 43(4), that says:
(4A) To avoid doubt, if a disclosure includes information that tends to show (or that may tend to show) disclosable conduct, there might be a reasonable basis on which the disclosure could be considered to be an internal disclosure even if:
(a) the disclosure includes other information; and
(b) the other information tends to show (or may tend to show) personal work-related conduct.
Each of those steps, the Ombudsman told us, is likely to be contested by a whistleblower or someone who purports to be a whistleblower and has an adverse conclusion against them by the decision-maker. Minister, who is going to be making the decision under 29(2A)? The second part of my question flows from that, which is: who will be making the decision under 43(4)?