The Commonwealth Moves to Protect Whistleblowers. Or does it?

On 21 March 2013, the Commonwealth government introduced a Bill to broaden the legislative protection of whistleblowers at the Commonwealth level. Dr Gabrielle Appleby, Dr Judith Bannister and Anna Olijnyk have made a submission on the Bill to a Senate Inquiry and explain their concerns with the legislation, below.

In Australia, integrity and accountability of the exercise of public power are now core principles that we associate with a democratic government under the rule of law. A myriad of mechanisms are in place to oversee government action and provide redress to those affected by it. However, one of the difficulties that these mechanisms face is that they are often on the outside looking in. One of the most important mechanisms in an accountability framework therefore is the protection of those within the public sector who have disclosed inappropriate behaviour they have witnessed. Whistleblowers find themselves in an extremely vulnerable position, facing a bewildering potential range of civil, criminal and administrative liabilities.

There are legitimate reasons for governments to protect public secrets and information in some instances. A balance must be struck that encourages and protects persons making disclosures about conduct that they bona fide believe is wrong, but prevents abuse of that system which may unnecessarily hamper efficient and effective government.

In Australia, the States and Territories have all implemented whistleblower protection regimes. The Commonwealth, however, has held out. There is limited protection afforded by s 16 of the Public Service Act 1999, which protects a member of the public service from victimisation or discrimination because they have reported breaches of the APS Code of Conduct.

On 21 March 2013, the Commonwealth Government introduced the Public Interest Disclosure Bill into Parliament. Clause 6 states that the objects of the Act are:

(a) to promote the integrity and accountability of the Commonwealth public sector; and

(b) to encourage and facilitate the making of public interest disclosures by public officials; and

(c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

(d) to ensure that disclosures by public officials are properly investigated and dealt with.

While the objects are lofty, in a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the Bill, we (Gabrielle Appleby, Judith Bannister and Anna Olijnyk) highlighted a number of concerns about the protections actually offered to potential whistleblowers under the legislation.

It is clear that the Bill’s primary focus is to encourage persons to make internal disclosures about inappropriate conduct. An internal disclosure must be to an ‘authorised internal recipient’, which includes authorised officers within agencies, the Ombudsman and the Inspector-General of Intelligence and Security. It is only if the investigation conducted following an internal disclosure is ‘inadequate’ that a whistleblower may make an external disclosure – for example to a journalist. The whistleblower must be sure, among other things, that the investigation of the internal disclosure was ‘inadequate’, as defined in the legislation, and that ‘the disclosure is not, on balance, contrary to the public interest’.

We agreed with concerns that have been expressed elsewhere about the exclusion of the conduct of Ministers, the Speaker of the House of Representatives and the President of the Senate from the definition of disclosable conduct in the Bill; and the exclusion of conduct that is connected with intelligence agencies. History has demonstrated that it is often the conduct of these officials that transgresses appropriate boundaries. These concerns have been well canvassed elsewhere, see for example, Suelette Davis’ piece on The Conversation. As such, we focussed on other shortfalls of the legislation.

Our major concern is the complexity of the scheme – both in terms of the process that must be followed to ensure an individual enjoys the protections afforded under the legislation and also the legal tests that must be satisfied. By its nature, this complexity militates against disclosures being made. An individual who is contemplating ‘blowing the whistle’ would find it extremely difficult to determine whether they would be protected under this legislation. 

We recommended a number of changes to the Bill, including changes to simplify the legal tests involved (particularly the legal tests that must be satisfied before a protected disclosure may be made to an external source), and to assist persons who are seeking to make a disclosure, or whistleblowers who have to bring or defend actions in court.

Our full submission can be accessed here.

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