When the whistle is blown - Page 3

From Griffith REVIEW Edition 24: Participation Society
© Copyright Griffith University & the author.

Written by AJ Brown

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ANOTHER CONSPICUOUS SILENCE IN AUSTRALIAN LEGISLATION so far has been limited recognition of the legitimacy of the last resort – public whistleblowing – even in exceptional circumstances. Only in New South Wales does the Protected Disclosure Act 1994, in an inadequate way, recognise the principle that a public official might in some cases be justified in taking a disclosure to a journalist. In 2004, the Liberal and National Parties moved for Queensland legislation to be extended to include the same principle – but were unsuccessful. In all other cases, governments have seen the question as so hard that they prefer to pretend it does not exist.

The reality, of course, is that in a democracy we know that some public-­interest disclosures may only be heeded when they hit the media. Governments can and should try to provide every avenue for public employees to first make their disclosures internally, or to regulatory or integrity bodies. But in a democracy, there may always be situations where this cannot reasonably be expected or where these agencies turn out to be wrong. We know that in some such cases, as a society, we will continue to be grateful that a diligent public servant was prepared to go outside. Such a public servant should have at least some chance of protection from defamation action or criminal prosecution.

Nothing is likely to be more successful in making public sector managers realise they need to manage whistleblowing better for themselves than the dual risks of seeing their problems splashed on the front page, or of being forced to fork out compensation to the employees they have allowed to become damaged.

Legislative practice in places as diverse as Whitehall – the home of official secrets – South Africa and Japan now seeks to maximise these ‘drivers' of changed organisational behaviour. They form just two of the thirteen principles for best-practice legislation, which as yet do not come together in any Australian jurisdiction. The time is now ripe to make these changes across the board.

Fortunately, federally, there has been a big shift in approach. In the lead-up to the 2007 federal election, the incoming Rudd government's policy statement on ‘Government Information: Restoring Trust and Integrity' promised ‘best-practice legislation to encourage and protect public interest disclosure within government to an integrity agency', with the added commitment that, ‘where a person has exhausted all legitimate mechanisms and avenues of complaint, and still finds that through the force of extreme circumstances they are obliged to disclose information to third parties such as journalists, protection by a court may still be provided dependent upon the circumstances'.

In July 2008, the Rudd government referred a range of key questions on the design of its public-interest disclosure legislation to the House of Representatives Standing Committee on Legal and Constitutional Affairs, chaired by Melbourne QC Mark Dreyfus. Its report in February 2009 showed a lot of the way forward. There is still much to be finalised in the drafting of the legislation. What is going to be the most effective way to ensure the workplace rights of whistleblowers are enforced? What threshold of ‘seriousness' will be set for the types of whistleblowing that will be covered? Is the threat of ‘immediate serious harm to public health and safety' the only time that whistleblowing to the media should be recognised as justified? (The short answer is ‘no', confirming the Commonwealth still has a way to go.)

However, on many of the major issues needed to put in place a new legislative approach, Australians have good reason to be optimistic. The challenge lies squarely on the federal government, opposition parties, Green Senators and independents as to whether these reforms will move public accountability forward. Best-practice legislation that drives new organisational commitment to the management of whistleblowing, and sets up realistic mechanisms for oversight and compensation, will have many positive effects. Most state governments are watching to see what the Commonwealth does before implementing their own legislative reform. The next steps will be important for determining when, and how, more comprehensive whistleblowing regimes are extended to the private and civil society sectors.

But if it is achieved, best-practice Commonwealth legislation will also send much wider signals. Australia is a society where citizenship and the quality of democracy matters. Australians know they can participate in affairs of government in many ways but, ultimately, their control over the quality of the government that serves them is reduced to a trip every three or four years to the ballot box.

In between those events, the guardians of the public interest, in the way our governments go about their daily affairs, are each and every holder of public office. How the rights and duties of any employee are recognised and protected is a vital issue. But nowhere is it so vital as in the rights and duties of public employees to speak up about the things they suspect might be going wrong. Every public official, or public contractor, or employee of a public contractor is the ordinary, day-to-day custodian of every Australian citizen's interest in seeing government work effectively, honestly and responsively for our society. When they speak up, they do so for all of us. The least we can do is support them in the process.  ♦

REFERENCES

From 1993 to 1997 AJ Brown was an investigations officer with the Office of the Commonwealth Ombudsman.  References to the 1996 case are from the public report, ‘Professional reporting and internal witness protection in the Australian Federal Police – a review of practices and procedures' (Commonwealth Ombudsman, November 1997).

Research results are taken from A J Brown (ed), Whistleblowing in the Australian Public Sector (ANU E-Press, 2008) – see http://epress.anu.edu.au/anzsog/whistleblowing/

The report of the House of Representatives Legal and Constitutional Affairs Committee on Commonwealth public sector whistleblowing legislation can be found at http://www.aph.gov.au/house/committee/laca/whistleblowing/report.htm