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In this significant case, the Court of Appeal was confronted with the question of whether an honest belief on reasonable grounds that a person had information which tended to show official misconduct was sufficient for a letter written on that basis to constitute a public interest disclosure under the Whistleblowers Protection Act 1994.
Fraser JA and Buss AJA and Henry J
3 December 2019
The appellant was a police officer who, on 21 February 2010, sent a letter to the Crime and Misconduct Commission. . In that letter, the appellant alleged, inter alia, that two other police officers had engaged in oral sex with one another in a police car while on duty. . The appellant commenced proceedings in the Supreme Court in 2017, claiming that “the respondent police officers had taken reprisals against him by causing various detriments to him because of his public interest disclosure”. . After the appellant sent this letter, the Public Interest Disclosure Act 2010 commenced. .
By virtue of s 74 of that Act “a public interest disclosure made under the Whistleblowers Protection Act [1994 (“the Act”)] before the commencement of s 74 is taken to be a public interest disclosure under the Public Interest Disclosure Act ”. . Consequently, the crucial question in this appeal was whether the letter sent by the appellant constituted a public interest disclosure for the purposes of ss 14(2) and 15 of the Act. .
At the time the appellant sent his letter, s 14(2) provided that “[a] person has information about conduct or danger specified in sections 15 to 20 if the person honestly believes on reasonable grounds that the person has information that tends to show the conduct or danger”. . Further, s 15 relevantly provided:
“A public officer may make a public interest disclosure about someone else’s conduct if—
(a) the officer has information about the conduct; and
(b) the conduct is official misconduct.”
There was no dispute that the appellant was a “public officer” for the purposes of s 15. .
Before the Supreme Court, a separate question was set down for determination, regarding whether the appellant’s letter amounted to information about conduct for the purposes of ss 14 and 15 of the Crime and Misconduct Act 2001. . Originally, the appellant’s counsel conceded that a negative answer in relation to this question would end the appellant’s claim. . However, after that question was answered in the negative by the primary judge, the appellant appeared for himself and submitted that the separate question was not determinative of the whole proceeding. . This submission was rejected and the appellant’s case was dismissed. .
Before the Court of Appeal, the respondents submitted that the appellant should not be able to agitate an appeal on grounds other than those raised in addressing the separate question. . Despite Fraser JA finding that it was “plainly correct” that the appellant sought to raise grounds on appeal which were inconsistent with how the proceedings were run before the primary judge, because the new ground raises a question of pure statutory interpretation and it was in the interests of justice, the appellant was permitted to raise his ground regarding the construction of ss 14(2) and 15 of the Act. –.
In relation to this point, Fraser JA first affirmed that the task for the Court was to “ascertain the intended meaning of the statutory text” by looking to “the statutory words in their context”. . With this in mind, his Honour turned to the principal object of the Act, “to promote the public interest by protecting persons who disclose ‘unlawful, negligent or improper conduct affecting the public sector’ and dangers to public health or safety or to the environment”. . Although s 7(2) provides that the “protection [of whistleblowers] is very broad”, it is subject to “balancing mechanisms”, and by s 7(3) the scheme only gives protection to a “public interest disclosure”. . Further, the provisions to which s 14(2) refers are “substantially identical apart from the descriptions of the conduct in paragraph (b) in each provision”. .
The appellant contended that the words “specified in [s 15]” in s 14(2) “refer to the “conduct” that is specified in s 15”, specifically the subset of conduct defined in s 15(b). . Unlike the respondents’ construction, wherein s 15(b) is treated “as providing that if the other person engaged in “the conduct” it would be “official misconduct”, Fraser JA found that the appellant’s construction stays within the text’s ordinary meaning. -. It also avoids the result that “a prospective whistleblower would be faced with the task of deciding the legal question whether information does, upon an objective analysis, reveal conduct that would be “official misconduct” within s 15, as defined in the complex provisions of ss 14 and 15 of the Crime and Misconduct Act.” . Thus:
“s 14(2) applies according to its ordinary meaning to attract the application of s 15 in a case in which a public officer discloses what the public officer honestly believes on reasonable grounds is information that tends to show someone else’s “official misconduct”, that being the relevant category of “conduct in which that other person has engaged or may have engaged in terms of s 14(4). The same approach is applicable in relation to each of ss 16, 17(1) and 20.” .
In the event, Fraser JA found that this ground should be upheld and the appellant’s preferred construction of ss 14(2) and 15 adopted. . It followed that it was inappropriate for the primary judge to have answered the separate question; the order dismissing the proceedings was set aside. .
One additional ground remained, relating to whether or not the contents of the appellant’s letter could amount to information that is “conduct” within the meaning of s 14(b)(ii) or (iii) of the Crime and Misconduct Act 2001. . Fraser JA considered that the letter could fall within s 14(b)(ii) or (iii) and, as such, had it been necessary to answer the special question, it should have been answered in the affirmative. . His Honour considered that it was only necessary to look to whether the appellant’s letter described a breach of trust by the two police officers named therein. . In his Honour’s view, a breach of trust could be constituted by “a serious criminal offence committed by a police officer that is apt to undermine public confidence in the integrity of that police officer”. . The appellant’s letter alleged that two police officers had committed an indecent act in a public place, which was observed by two members of the public who happened to be police officers, and which involved the use of a police car. . This satisfied the definition of a breach of trust. . Thus, had it been required to be answered, the separate question should have been answered in the affirmative. .
In the event, the appeal was allowed. –.