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Thursday, 5 December 2002
Page: 7246


Senator PATTERSON (Minister for Health and Ageing) (10:49 AM) — Whistleblowing provisions, as they are commonly referred to, pose a number of complex issues. These include employer-employee relationships, potential liability and damages, privacy and the right to a fair hearing, natural justice and appeal. Senator Harradine's amendment does not deal with any of these. Some states have attempted to codify the law regarding whistleblowing. Queensland recently developed comprehensive legislation in relation to whistleblowing. The legislation exceeds 64 pages, which reflects the complexity of the issues. In the context of Commonwealth legislation, there is also an issue of the constitutional power and ensuring that the provisions can be tied back to the subject matter of the regulation and the heads of power detailed in the Constitution.

The Queensland legislation sets up a system of public interest disclosures. It contains a lot of detail about when an entity is an appropriate entity to receive a disclosure and how and by whom such disclosures are to be handled. In contrast, it is not clear from Senator Harradine's amendment what an appropriate entity would do with the information once it is received. For example, under the amendment a disclosure about a licence holder may be made to the Ombudsman or the Public Service Commissioner. However, a licence holder is likely to be a non-government entity and neither the Ombudsman nor the Public Service Commissioner have jurisdiction to investigate non-government bodies. It is obvious that the amendment raises a number of issues which require clarification. It is simply not a matter that can be dealt with in four paragraphs as suggested by the amendment.

There are two important avenues through which complaints can be made and protection can be afforded to those who make complaints. Firstly, anyone can make a complaint to the Commonwealth Ombudsman, who has a range of powers to investigate complaints about Commonwealth bodies, including the NHMRC Licensing Committee and staff or contractors of the NHMRC. Secondly, the NHMRC Licensing Committee will be able to consider complaints about licence holders. In some cases, the criminal law will compel people to report certain offences or risk being liable for aiding and abetting the commission of the offence. This would not, of course, apply to people who simply become aware of an offence and report it. Rather, it would apply to people who are intimately involved in the commission of an offence or who may be said to have aided or abetted the offence. For these reasons, I will not be supporting Senator Harradine's amendment.

Question negatived.