Whistleblower protection laws long overdue

By Angela Dorizas

The Standing Committee on Legal and Constitutional Affairs today released the report of its inquiry into whistleblower protection in the Australian public sector.

The report, titled Whistleblower protection: a comprehensive scheme for the Commonwealth public sector, recommended that the Federal Government introduce legislation to enable public interest disclosures and strengthen whistleblower protection within the Commonwealth public sector.

Committee chair Mark Dreyfus, QC, said federal whistleblower protection laws were long overdue.

"The Commonwealth is the only Australian jurisdiction that does not have legislation to encourage public interest disclosures," Dreyfus said in a statement.

"While some limited protections are available to whistleblowers employed by Australian Public Service (APS) agencies, evidence to the inquiry indicates that those protections are grossly inadequate.

"The current legal framework and organisational culture discourages public servants from speaking out against what they consider to be illegal or improper conduct in the workplace. People who raise allegations of misconduct could be exposed to serious criminal or civil liability."

The committee recommended that the public interest disclosure system include Commonwealth public sector employees, contractors and consultants, and provide statutory protection and immunity from civil and criminal liability.

Dreyfus acknowledged in the committee report that legislation alone was not sufficient for promoting accountability and protecting whistleblowers.

"A shift in culture needs to take place to foster a more open public sector that is receptive to those who question the way things are done," he said.

Experts optimistic

The committee findings follow a report released last September by the Whistling While They Work project, led by Professor A J Brown of Griffith University.

The report, Whistleblowing in the Australian Public Sector, found that less than two per cent of public interest whistleblowers received organised support from their government employer.

Dr Brown said the committee report was "very impressive" because it covered a range of aspects of what was needed for a legislative package that would provide protection and support for whistleblowers.

"It’s a very comprehensive report in terms of the issues that it covers and that in itself is an achievement because there are a lot of issues and they’re very complex,"  Dr Brown told GovernmentNews.

"There is no area that’s been left out. There are some areas in which it is extremely good and the overall philosophy of it, the spirit of it, is very good as a basis for a reform package."

But there are a few specific areas where Dr Brown believes “the devil is going to be in the detail”, including recommendation 21, which covers the circumstances where a public official will be protected when they make disclosures to the media.

"From an Australian point of view, it’s progressive that the Government has already committed to having in its legislation that it will set out the rules for when it is reasonable to go to the media," Dr Brown said.

"The circumstances which the committee has suggested as reasonable are fairly narrow and the question is whether in fact it needs to be as narrow as they’ve suggested it should be.

"On one hand it is still a good thing, because at least there’s some provision for it, but at it needs to be looked at a bit more closely."

He said it was certainly narrower than the situation in the UK.

"If we’re looking to really adopt world’s best practice then we should be looking to bring ourselves up to par with those sorts of jurisdictions."

Dr Brown was confident that legislation based on the recommendations of the bipartisan committee would pass Parliament and set a benchmark for whistleblower protection in Australia.

"The Rudd Government made very explicit election commitments, so I think we’ve got every reason to be optimistic that a very comprehensive legislative package will go forward," he said.

"I think the Government will move, but I’m sure there will be a lot of argument within government as to exactly where the line should be drawn on some of those aspects.

"If the legislation actually reflected everything in this report, then it certainly would have the potential to set a new benchmark for what this legislation should be like in Australia. It would surpass anything that’s already there in the states or territories, which is a good thing, because it’s all got problems."

Key recommendations of the committee report are that:

  • new legislation be introduced, titled the Public Interest Disclosure Act;
  • the primary objective is to promote accountability in the public sector;
  • the legislation should cover the APS and non-APS agencies, contractors, consultants and parliamentary staff;
  • protected disclosures include matters relating to illegal activity, corruption, breach of public trust, maladministration, scientific misconduct, wastage of public funds, threats to public health and safety, and danger to the environment;
  • decision makers are free to include other types of allegations if the whistleblower is making a disclosure in the spirit of the Act;
  • whistleblowers have protection against detrimental action and immunity from criminal and civil liability;
  • the system includes a two stage process of internal and external reporting, overseen by the Commonwealth Ombudsman;
  • agencies and the Ombudsman are responsible for the provision of procedural fairness and reporting on the operation of the system;
  • and the system is supported by an awareness campaign to promote a culture of public interest disclosure within the public sector.

Download the full report.

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