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ICAC at odds with Xenophon's whistleblower plan

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Nick Xenophon has rejected the Independent Commissioner Against Corruption’s view that rewarding public service whistle blowers with a “bounty” could undermine the credibility of their public disclosures.

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The SA Best Party leader has also denied that his whistleblower protection policies are in conflict with confidentiality agreements his candidates must sign, requiring them to keep the internal party deliberations secret.

The Government has accused Xenophon of hypocrisy for putting a “gag order” on his candidates, describing him as a “control freak”, after Xenophon released policies designed to increase Government transparency on the weekend.

In his 2014 review of the state’s Whistleblower Act, Independent Commissioner Against Corruption Bruce Lander wrote that it would be inappropriate to reward public servants for making disclosures they are already duty-bound to make.

A US-style “bounty” system for exposing misconduct was “incompatible with accepted principles and practise in Australian society” and could undermine the credibility of evidence, Lander wrote at the time.

Xenophon revealed on the weekend that SA Best would pursue a “bounty” or reward for public servants who make highly significant disclosures about misconduct within the bureaucracy.

By contrast, SA Best’s deed for candidates requires them to keep confidential information about party meetings, internal discussions and policy formulation.

A Government spokesperson told InDaily: “Nick Xenophon s hypocritical when he demands transparency from other but puts a gag order on his own candidates.”

“He is a control freak.”

Xenophon described the statement as a “typical negative attack from a government whose name is a byword for secrecy and political spin”.

“This Government has had 16 years to deliver in openness and transparency but has conspicuously failed to do so.

“The government spokesperson hasn’t even bothered to put their name to their comments.”

He said the SA Best deed for candidates simply prevented candidates from purporting to be spokespeople on party policy when they are not.

“The deed is very clear – it’s about not purporting to speak out on policy … when you have no authorisation for it,” he said.

The former independent Senator described comparing the deed to SA Best’s whistleblower protection policy as “silly and nonsensical”.

He added that “the law should be the same” for whistleblowers from any type of organisation, public or private.

The Government spokesperson said whistleblowers were already protected if they report to the Ombudsman, ICAC or the Office for Public Integrity.

“The idea of paying whistleblowers for information may get a quick headline, but would clearly have negative consequences when it comes to the integrity of information provided,” the spokesperson said.

But Xenophon argued his party’s policy would not undermine the credibility of public servants’ disclosures because they would not know whether they would be rewarded, or how much money they could earn, for making them.

“It wouldn’t (undermine evidence) because they don’t know what the reward would be,” he said.

He said payments to whistleblowers “would be the exception, not the rule” and that they would be “discretionary” rather than “formulaic”.

“What I’m talking about is a last-resort compensation scheme,” he said, adding that it was too early to say which public official or body would be responsible for deciding on the discretionary payment.

Xenophon said there would also have to be a method for testing whistleblowers’ claims – a “judicial” method – before a reward could be offered.

He warned that current legal avenues of redress for public servants who feel victimised after they blow the whistle on misconduct were “illusory”.

The Whistleblower Act allows public servants to pursue a civil claim in the District Court if they believe they have been victimised because of their public disclosure.

But Xenophon said that “to bring a common law complaint can cost hundreds of thousands of dollars”.

“(Public servant whistleblowers’) access to justice is illusory,” he said.

The Whistleblowers Act provides several protections for people who make public interest disclosures.

They include the ability to launch action in the District Court, seeking damages, if a whistleblower believes they have been victimised as a result of their disclosure.

The law does not protect people who come forward with false information – and a person who knowingly makes a false public interest disclosure can face up to two years jail.

The whistleblower must reasonably believe the information they are disclosing is true, and must approach the appropriate authority – such as the State Ombudsman or SA Police – to attract the protections of the Act.

Lander is currently on leave.

ICAC CEO and acting Commissioner Michael Riches told InDaily the Lander hoped whistleblower law reform, in line with the recommendations of his 2014 review, would be high on the parliamentary agenda this year.

“Agencies such as the ICAC and the Office for Public Integrity rely upon public officers reporting matters that might amount to corruption, misconduct or maladministration in public administration,” said Riches.

“Public officers who report wrongdoing should be protected.

“The ICAC Act already offers protections for people who provide information or assistance to the ICAC.”

He said recommendations of the 2014 report should be pursued in parliament, including:

“The Commissioner is hopeful that when Parliament resumes this year reform of whistleblower legislation will figure prominently on the agenda,” said Riches.

SA Liberal Party Deputy Leader Vickie Chapman told InDaily her party did not support rewarding whistleblowers – but did support a statutory compensation scheme for those who believe they have been victimised because of their disclosures.

She said the Liberal Party wanted public servants to be able to take complaints to the media or to members of parliament if, after at least three months, they weren’t satisfied their disclosures were being adequately investigated.

Chapman argued that a rewards scheme would “give a licence to people … who have a grudge” and would not respect the relationship between employee and employer.

Equal Opportunity Commissioner Niki Vincent said she had yet to see the detail behind Xenophon’s whistleblower protection policies, but that she urged all political parties to reflect the complexity of the area of law by presenting nuanced proposals.

“I urge any parties putting together a policy platform in this area to develop proposals that reflect these complexities, are based on sound evidence and get the balance right to ensure greater protection while avoiding any unintended consequences,” she said.

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