A Review of the Whistleblowers Protection Act 1993 (SA)

Summary

In the body's own words

1. Recommendation

   The WBP Act be repealed and a new Act be substituted that clearly addresses the four fundamental issues relevant to whistleblowing and the further recommendations mentioned in this review.

   Report, page 8

Findings, opinions and statements

Allegations are not findings. A commission's finding or opinion of corrupt conduct or misconduct is not a finding that a person is guilty of a criminal offence, and the commissions say so in their reports.

No findings are reproduced in this record. This does not establish that the report contains none.

Recommendations 30

1. Recommendation 1

   The WBP Act be repealed and a new Act be substituted that clearly addresses the four fundamental issues relevant to whistleblowing and the further recommendations mentioned in this review.

   Report, page 8

2. Recommendation 2

   That the reporting of criminal conduct other than in public administration not be addressed by WBL.

   Report, page 8

3. Recommendation 3

   That WBL recognise disclosures of conduct that creates a substantial risk to the environment or to public health and safety wrongdoing, whether the conduct has occurred in the public sector or private sector.

   Report, page 8

4. Recommendation 4

   That maladministration as it is presently defined, and its use in the definition of public interest information, not be included in WBL.

   Report, page 8

5. 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.

   Report, page 8

6. 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.

   Report, page 8

7. 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.

   Report, page 8

8. Recommendation 8

   That WBL provide protection for any person who makes a public interest disclosure about conduct that causes a substantial risk to public health or safety or to the environment.

   Report, page 9

9. Recommendation 9

   That WBL provide an obligation, subject to appropriate exceptions, to investigate disclosures.

   Report, page 9

10. Recommendation 10

    That the OPI be the primary recipient for public interest disclosures by public officers concerning unacceptable conduct in public administration.

    Report, page 9

11. Recommendation 11

    That a Minister continues to be a person to whom a public interest disclosure may be made under WBL.

    Report, page 9

12. Recommendation 12

    That a person in authority who supervises or manages the public officer, directly or indirectly, be included as an appropriate recipient of a protected public interest disclosure. Further, that the ICAC be empowered to provide guidelines to a public authority as to the person within an agency who could be considered a person in authority under WBL.

    Report, page 9

13. Recommendation 13

    That WBL require that the head of each public sector entity designate a person as a “responsible officer” and that the responsible officer within a public sector entity be a recipient of a public interest disclosure under WBL.

    Report, page 9

14. Recommendation 14

    That WBL permit a public officer to re-disclose a public interest disclosure to the media or to a Member of Parliament where there has been a previous public interest disclosure in accordance with WBL, but there has been a failure to investigate or a failure to keep the public officer informed and, where the re-disclosure covers substantially the same information as the initial disclosure and, provided that the information is substantially true, or that the discloser believes on reasonable grounds that the information is true.

    Report, page 10

15. Recommendation 15

    That WBL make clear that the making of a public interest disclosure does not of itself amount to a breach of confidence, a breach of professional etiquette or ethics, or breach of a rule of professional conduct, or if in relation to a parliamentarian, a contempt of the Parliament.

    Report, page 10

16. Recommendation 16

    That WBL include an offence for disclosing the identity of a person who has made a public interest disclosure, with exceptions that permit disclosure within referrals for investigation and for other proper purposes clearly set out.

    Report, page 10

17. Recommendation 17

    That WBL permit a person to make an anonymous public interest disclosure to the OPI and obtain the status of whistleblower.

    Report, page 10

18. Recommendation 18

    That WBL provide for civil remedies which are low cost and that the South Australian Civil and Administrative Tribunal and the District Court be considered as jurisdictions where such actions can be heard.

    Report, page 10

19. Recommendation 19

    That an injunctive remedy be available to a whistleblower who can demonstrate a risk of victimisation to prevent anyone from engaging in such victimisation.

    Report, page 11

20. Recommendation 20

    That WBL provide that a whistleblower taking action for victimisation or breach of a statutory duty not be liable for costs unless the relevant court or tribunal rules that the whistleblower has conducted his or her litigation unreasonably or vexatiously or have brought the proceedings without reasonable cause.

    Report, page 11

21. Recommendation 21

    That WBL provide for a duty on agencies of the Crown to take reasonable steps to prevent victimisation of whistleblowers, and provide for the agencies’ vicarious liability for victimisation of employees at the hands of other employees if the agencies fail to do so.

    Report, page 11

22. Recommendation 22

    That WBL include an offence of victimisation.

    Report, page 11

23. Recommendation 23

    That the provision for the making of a false disclosure be in similar terms to s22 of the ICAC Act, without making recklessness as to falsity of the disclosure an offence.

    Report, page 11

24. Recommendation 24

    That in relation to allegations made against public officers or entities by public officers or entities, the necessary knowledge threshold to make a protected disclosure be the same as that contained in s20 of the ICAC Act and in the ICAC’s Directions and Guidelines.

    Report, page 11

25. Recommendation 25

    That an obligation to assist with an investigation, with loss of protection resulting from failure to co-operate, not be included in WBL.

    Report, page 11

26. Recommendation 26

    That South Australia not adopt a US-style bounty scheme for public sector whistleblowing.

    Report, page 12

27. Recommendation 27

    That WBL empower ICAC to act as the oversight body for WBL.

    Report, page 12

28. Recommendation 28

    That WBL require each public sector agency to devise and publish a public interest disclosure procedure. That WBL specify minimum requirements for that procedure similar to those found in the Australian Capital Territory’s legislation.

    Report, page 12

29. Recommendation 29

    That WBL deal with the handling of public interest disclosures about unacceptable conduct in public administration in a manner which is complementary with the ICAC Act, according to the process set out in this review.

    Report, page 12

30. Recommendation 30

    That WBL provide for a process to allow a Minister to refer a public interest disclosure concerning environmental and public health and safety risks to a public authority for investigation.

    Report, page 12

Published responses

No published response was found.

Coverage

This publisher

• Office for Public Integrity: publishes only its annual reports (excluded); no OPI report or statement records.
• Since October 2021 the Commission does not make findings of corrupt conduct; most records have no findings.
• Government and agency responses are recorded only where the Commission's page links them or the report reproduces them; implementation status is not published by the Commission as structured data.
• Scanned reports without a text layer are not read (no OCR); their recommendations stay not_extracted.
• Recommendations are extracted only from numbered 'Recommendation N' lists; reports that set out recommendations in prose, tables or unnumbered lists keep recommendations_status not_extracted.
• Findings are extracted only from investigation reports that state them in the Commissioner's own words (Oakden 2018, Gillman 2015); public statements are not read for findings.