Rónán Mullen (Independent)

I wish to clarify two points. In the context of what Senator Bacik stated, I am not proposing that we remove the test relating to recklessness. I am, however, proposing that the test relating to knowledge and recklessness be confined to the issue of falsity.

Senator Norris's contribution was both entertaining and dramatic. However, he fails to comprehend the import of what I am saying about removing the words "misleading", "frivolous" and "vexatious". I am not suggesting we should protect those who knowingly make misleading, frivolous or vexatious claims or reports. I am concerned instead with establishing a context in which people will not feel unduly burdened, particularly in the context of their potentially being penalised by their employers, when it comes to making such claims or reports. An employer could, for example, decide, on a subjective basis, that what a whistleblower did was misleading. I suggest we adhere to the principle established under the criminal law, namely, that a person who does something which he or she knows to be false will get into trouble. That would pretty much cover matters. By including the words to which I refer, it adds in some way to the chilling effect.

The psychological context in which whistleblowing occurs provides the key to understanding what I am saying. With respect, I believe Senator Norris did not pay adequate attention to my arguments in this regard. I am proposing that we replace what is contained in the Bill with something along the lines of the British model. In such circumstances, the legislation would refer to making claims in good faith and not being malicious. The Senator did not appear to comprehend that aspect of my argument either. I am not seeking to establish a blackmailer's charter or give comfort to those who make misleading, frivolous or vexatious claims. I thought that should have been very clear to the Senator. However, I believe he chose heat over light - or perhaps drama over substance - in the context of the approach he chose to take to my amendments.

I reiterate that the test of falsity should be maintained. If a person knows that what he or she is saying is false or if he or she is reckless as to whether something is false, that should be sufficient to prevent irresponsible or dishonest whistleblowing. We should opt for a test of good faith and presume an absence of malice.