Williamson Maurice: Protected Disclosures Amendment Bill — Third Reading 
Williamson Maurice: Protected Disclosures Amendment Bill — Third Reading 
[Volume:653;Page:2789] 
Hon MAURICE WILLIAMSON (Minister for Building and Construction) 
 on behalf of the  
Minister of State Services 
: I move  
That the Protected Disclosures Amendment Bill be now read a third time 
. It would be appropriate for me to restate that this bill is to strengthen the current purposes of the Act in promoting the public interest by facilitating the disclosure and investigation of serious wrongdoing in or by an organisation and by protecting employees who in accordance with the Act make such disclosures. The bill has two parts. Part 1 contains amendments to the Protected Disclosures Act 2000 and Part 2 contains a transitional provision. 
In December 2003 Trevor Mallard the then Minister of State Services tabled a report in the House on the Act’s first few years. Prepared by Mary Scholtens QC the report concluded that the Act had not been used a great deal and it had not always been used well. Without a central coordinator the range of appropriate authorities to which employees disclosed was confusing. Some disclosures fell between the gaps in the jurisdictions of those authorities. Ms Scholtens also referred to a strong perception among some of those consulted on the Act that the identity of a whistleblowing employee would not be protected. Ms Scholtens concluded that the Ombudsmen could assist whistleblowers coordinate referrals between appropriate authorities and guide and review the Act’s operation. The bill gives the Ombudsmen that enhanced role. It also picks up on a number of other recommendations designed to improve the Act’s protections and processes. 
The bill was considered by the Government Administration Committee which recommended two minor changes. The first is the insertion under clause 6 of a new section 6C(2): “An organisation is not required to comply with a request made under subsection (1) if it is not a public sector organisation.” The amendment is designed to make it clear that a private sector organisation is not obliged to comply with a request from the Ombudsmen for information about the organisation’s internal procedures. New sections 15 to 15E are substituted in the bill under clause 8 and the second amendment is that section 15E(3) is amended to include section 30 of the Ombudsmen Act. Including a reference to section 30 makes it an offence to refuse to provide to an Ombudsman the information specified in section 15E. This applies to only public sector organisations. The change is designed to enhance the workability of the section by providing a deterrent to a person who without lawful justification or excuse fails to comply with a lawful requirement of an Ombudsman. 
The Ombudsmen will be authorised to provide information and guidance to public or private sector employees on using the Act at any time not just on request. For example the Ombudsmen will advise on what serious wrongdoing is and on whom to complain to. This should provide a filter for misguided disclosures as well as encourage whistleblowers to throw light on serious wrongdoing. Public sector organisations are required to have internal procedures on how disclosures must be made to them and how such disclosures will be investigated. The Act requires that whistleblowers must first disclose in accordance with their employing organisation’s internal procedures. Complying with internal procedures can be difficult if there are none in that operation. Section 6C empowers the Ombudsmen to request the internal procedures and related information from an organisation concerned. As a result organisations may be encouraged to have a good effective protected disclosures policy in place. Employees’ confidence should also increase if they know what the employing organisation’s internal procedures are. 
The Ombudsmen will have new powers to review and guide a public sector organisation’s investigation of whistleblowing under section 15B. The power to guide investigations is facilitative rather than directive and the power will be activated either on the organisation’s request or at the Ombudsman’s discretion. This should help prevent disclosures of serious wrongdoing from circulating around various agencies without resolution. 
Currently the Ombudsmen may make reports to Parliament under section 29 of the Ombudsmen Act. Section 15C of the bill specifies a number of matters on which the Ombudsmen may report about the exercise of their powers under the Protected Disclosures Act. The list includes the number and types of inquiries made to the Ombudsmen under the Act. This list is designed to provide Parliament with more information on how the Act is operating and on how the Ombudsmen are carrying out their powers. These new sections just described come with information-requiring powers conferred by section 15E(3). The Ombudsmen will be able to require information from public sector organisations in keeping with current limits on their investigative jurisdiction. Private sector organisations will not be required to comply but will be encouraged to do so. There are inbuilt protections from the misuse of such powers already in the Ombudsmen Act and in the bill. 
Under section 15A an Ombudsman will be able to take over a public sector organisation’s investigation of serious wrongdoing alleged against it. The trigger is that the Ombudsman considers that sufficient progress had been made by the organisation and the whistleblower consents to the takeover. The Ombudsman may also investigate in conjunction with that organisation. In addition the Ombudsman will take on a coordinating role under section 15 in relation to protected disclosures that have already been made to another person or body. Again this applies only with the whistleblower’s consent in exceptional circumstances such as urgency. An Ombudsman may refer on the disclosure to an appropriate authority or to a Minister to investigate. Alternatively she or he may investigate when the matter relates to a public sector organisation. 
The bill extends the Act to a wider range of people and bolsters the Act’s protections. The term “employee” will include volunteers who work for no reward. Board members and members of local authorities will be able to whistle-blow under the Act and both groups will be “employees” for the purposes of confidentiality of identity immunity from liability and anti-victimisation protections in the Human Rights Act. Contractors are already covered under the Act. 
Even with the Act’s protections whistleblowing carries some personal risk to employees but silence is not in the public interest. Measures in this bill are designed to give more substance to the Act’s protections which include the Ombudsmen assisting organisations to keep the confidentiality of disclosures the expansion of the Act to protect volunteers of information in support of an existing disclosure of serious wrongdoing the expansion of protection to people who reasonably but mistakenly believe they are disclosing serious wrongdoing the declaration as unlawful of agreements that seek to contract out of the Act and the clarification that disclosers are not excluded from the Act merely because they do not refer to the Act by name when disclosing. Further technical non-compliance with the Act’s processes for whistleblowing will no longer prevent an employee from coming within its protections. 
I thank members of the House for their support for this important legislation.