AustLII Home | Databases | WorldLII | Search | Feedback

Administrative Review Council - Admin Review

You are here:  AustLII >> Databases >> Administrative Review Council - Admin Review >> 2010 >> [2010] AdminRw 4

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Dreyfus, Mark --- "Whistleblower Protection for The Commonwealth Public Sector" [2010] AdminRw 4; (2010) 59 Admin Review 14


Whistleblower protection for the Commonwealth public sector

Mark Dreyfus QC, MP[*]

When the Rudd Government was elected in November 2007 it had already committed itself to high standards of integrity, transparency, responsiveness and accountability. Since the election a range of measures have been introduced with the intention of ensuring high standards of accountability and integrity within government.

As part of these reforms, in July 2008 the Attorney-General—on behalf of the then Cabinet Secretary, Senator the Hon. John Faulkner—asked the House of Representatives Legal and Constitutional Affairs Committee to inquire into and report on whistleblowing protections in the Australian Government public sector. As chair of the committee, I oversaw the inquiry and presented the resultant report to the House of Representatives in February 2010. In this contribution to Admin Review I take the opportunity to provide an overview of the committee’s recommendations and offer some observations on furthering an agenda of accountability and transparency in government.

Protection of public interest disclosures is part of an array of integrity reforms that are being carried out by the Government. It is useful to outline some of the reforms so far.

• For the first time integrity and governance functions have been brought together under a single minister, the Cabinet Secretary and Special Minister of State. This includes the agencies of the Commonwealth Ombudsman, the Privacy Commissioner, the Australian Public Service Commissioner, the Inspector-General of Intelligence and Security, the Auditor-General and the National Archives of Australia.

• The Government has introduced the Evidence Amendment (Journalists’ Privilege) Bill 2009, which amends the professional confidential relationship provisions in the Evidence Act 1995 by inserting an objects clause stating that the object of Division 1A is to achieve a balance between the public interest in the administration of justice and the public interest in the media communicating facts and opinions to the public and, for that purpose, having access to sources of facts.

• The Government has introduced legislation containing the first stage of reforms to the Freedom of Information Act 1982, including the abolition of conclusive certificates. [1]

• On 29 March 2009 the Government released an exposure draft of its FOI reform legislation. This represents the most substantial overhaul of the federal freedom of information regime since the Act’s inception. The structural reforms proposed in the draft legislation—including the appointment of an Information Commissioner and an FOI Commissioner—will bring about a major change in FOI administration and are directed at creating a ‘pro-disclosure’ culture.

• In April 2009 the Special Minister of State wrote to all agency heads to advise them that the starting point for considering FOI requests should be a presumption in favour of giving access to documents.

• The Government has strengthened the Standards of Ministerial Ethics and introduced for the first time a Ministerial Staff Code of Conduct, and on

1 July 2008 a Lobbying Code of Conduct came into force.

• The Government has established the Public Service Ethics Advisory Service to work with all Australian Public Service agencies to increase ethical awareness and improve decision‑making capabilities.

• In the case of electoral and party fundraising, the Government has proposed measures aimed at lowering disclosure levels and thus increasing transparency, although these measures are yet to be passed by the Senate.

The purpose of each of these reforms is to increase openness, accountability and transparency in the Commonwealth Government.

Openness, accountability and transparency in government are important for at least two reasons. First, application of these principles helps to maintain confidence in our system of government—public confidence in people’s elected representatives as well as public confidence in the Public Service. Second, these principles lead to better outcomes in public policy and administration.

Whistleblowing

Protecting whistleblowing—or public interest disclosures—is part of this broader integrity framework and should be an essential feature of any modern democracy.

The Whistle While They Work project defined whistleblowing as ‘disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action’. At present the Commonwealth is the only Australian jurisdiction that does not have legislation dedicated to facilitating public interest disclosures and protecting those who make them.

The House of Representatives Legal and Constitutional Affairs Committee was asked to consider and report on a preferred model for legislation designed to protect public interest disclosures within the Australian Government public sector. The committee sought submissions from Commonwealth and state and territory agencies, non-government organisations, relevant professional associations, media bodies, unions, academics, and whistleblowers themselves. It also held 11 public hearings, in Melbourne, Canberra, Sydney and Brisbane. The hearings included two roundtable discussions, one with public administration experts, lawyers and academics, held on 9 September 2008, and the other with representatives of media-related organisations, held on 27 October 2008.

The committee’s primary recommendation was that the Australian Government introduce legislation to provide whistleblower protections in the Australian Government public sector and that it do so as a matter of priority.

Principles

As a starting point, the committee recommended a number of principles it felt should guide legislation aimed at protecting whistleblowers:

• It is in the public interest that accountability and integrity in public administration are promoted by identifying and responding to wrongdoing in the public sector.

• People working in the public sector have a right to express concerns about wrongdoing in the sector, without fear of reprisal.

• People have a responsibility to raise those concerns in good faith.

• Governments have a right to consider policy and administration in private.

• Government and the public sector have a responsibility to be receptive to concerns that are raised.

Who should be covered?

Limited protections against victimisation and discrimination are provided to Australian Public Service employees who report breaches of the APS Code of Conduct under current whistleblower provisions (s 16 of the Public Service Act 1999). It is of note, however, that only two-thirds of the 232 000 Commonwealth public sector employees are in the APS and covered by these whistleblower provisions. Employees of organisations subject to the Commonwealth Authorities and Companies Act 1997 are at present excluded. Among these organisations are the Australian Broadcasting Corporation and the Australian National University. Former employees, contractors, consultants and the staff of members of parliament are also excluded.

The committee recommended that the categories of people who could make protected disclosures be expanded to include Commonwealth public sector employees who are currently excluded. It also recommended that a person who has an ‘insider’s knowledge’ of official misconduct be deemed a public official for the purposes of the legislation. This could include a volunteer or an employee of a state government entity who has inside information about misconduct in the Commonwealth public sector.

What should be protected?

Evidence presented to the inquiry revealed strong support for the types of disclosures outlined in the inquiry’s terms of reference. The committee recommended that, with one exception, all those disclosures be protected. The exception was for ‘official misconduct involving a significant public interest matter’: the committee refrained from recommending this because significance or seriousness might not be something that is immediately obvious, and making a report conditional on significance or seriousness could set too high a threshold and discourage people from coming forward.

In keeping with the evidence received, the committee considered that grievances about internal staffing are not matters that concern the ‘public interest’ and should be dealt with through separate mechanisms such as existing workplace personnel processes.

What protections should be available?

The committee recommended that the legislation provide for protection against detrimental action—including victimisation, discrimination, discipline or an employment sanction—and immunity from civil and criminal liability.

Unfair treatment of whistleblowers is a workplace matter that should be dealt with through existing industrial relations law. Some limited protections are provided in the Workplace Relations Act 1996 and, since 1 July 2009, the Fair Work Act 2009.

Industrial relations law might provide better protections for whistleblowers than a unique scheme. This is why the committee recommended that the right to make a public interest disclosure be recognised as a workplace right, and infringements of that right ought to be dealt with by the relevant workplace authority, which is now the Fair Work Ombudsman.

Compensation and the existing rights of whistleblowers are to remain within the types of compensation and rehabilitation provisions available to employees generally; mediation and dispute settlement would also be within the scope of provisions available to employees generally.

If a person does not come within the jurisdiction of the industrial courts or tribunals—for example, a member of the Defence Force—the Workplace Ombudsman may still investigate and issue an evidentiary certificate that adverse action has occurred.

Conditions

The committee came to the view that the main condition that should apply when determining whether a disclosure is protected is the honest and reasonable belief of the whistleblower. It also came to the view that decision makers should have discretion to protect a person who materially fails to comply with the procedures for making a disclosure if that person has nonetheless acted in good faith in the spirit of the legislation.

The proposed public interest disclosure scheme aims to minimise the disincentives for people to make disclosures. As a result, penalties and sanctions should not apply to those who do not follow the prescribed procedure or knowingly or recklessly make false allegations. Removal of protection in these circumstances is sufficient.

The committee also considered the merits of adopting a US-style reward system for whistleblowers, such as the ‘qui tam’ provisions in the False Claims Act. On balance, it concluded that such a reward system would not contribute to the objects and purposes of the legislation. In the committee’s view, it is appropriate to provide for compensation to restore a person to the position they would have been in were it not for adverse treatment arising from making a disclosure. The legislation should not remove any existing legal rights in relation to damages.

Procedures

Research shows that the vast majority of disclosures made are made internally. Legislation should encourage the making of disclosures within agencies because of the agencies’ proximity to the subject of the disclosure and ability to effect action. The Committee recommended, however, that the new legislation provide avenues for making disclosures to specified external agencies, such as the Commonwealth Ombudsman and the Public Service Commissioner, in cases where people consider on reasonable grounds that their disclosure would not be handled properly within their own agency.

The success of the new legislation depends on the extent to which people within the public sector have confidence in the system, and positive obligations on agencies are an important source of confidence. The legislation should include strong positive obligations on agencies receiving, acting on and reporting disclosures.

The Commonwealth Ombudsman has a reputation for and skills and experience in handling investigations into serious and sensitive public interest–type matters and, in the committee’s view, is therefore the most suitable agency to oversee the administration of the legislation. The committee recommended that the Ombudsman have new statutory responsibilities under the scheme, including monitoring the system, providing training and education, and reporting to parliament on the system’s operation. The committee also proposed that the Ombudsman be able to publish reports on matters in the public interest that are raised under this scheme.

Third party disclosures

Since the committee’s report was tabled in Parliament in February 2010 much of the public discussion about the proposed reforms has centred on the role disclosures to third parties should play in the framework and what protections should be extended to those making such disclosures.

When determining the appropriateness of protecting disclosures made to third parties—particularly the media—the primary consideration must be how such disclosures could serve the public interest. If a form of disclosure cannot promote accountability and integrity in public administration or otherwise serve the public interest, the disclosure does not warrant protection. Affording protection for disclosures made to the media in specific circumstances could act as a safety valve when particularly serious matters take too long to resolve inside the system and in the case of matters that pose an immediate threat of serious harm to public health or safety.

The committee recommended that members of parliament be recognised as authorised recipients of public interest disclosures. This would complement the limited protections already afforded those who provide information to parliamentarians under the Parliamentary Privileges Act 1987.The Standing Orders of each House should be amended to ensure that members act responsibly in relation to the disclosures to which they become party.

Disclosures should also be protected when they are made during the course of seeking assistance from legal advisors, professional associations and unions.

People are much more likely to make disclosures within their own agency or through other prescribed channels. The proposed scheme recognises that people can sometimes have good reasons to turn to third parties for advice or to make a disclosure.

An important principle for the new public interest disclosure legislation the committee recommended is that government has a right to consider policy in confidence. The committee therefore recommended that protection not apply if it is established that a person has ‘leaked’ confidential information. Whistleblowing is distinct from leaking, whereby a person covertly provides information directly to the media with the intention of embarrassing government. Under the committee’s proposals unauthorised disclosures of this nature might not be eligible for protection.

Leaking breaches the trust between the Public Service and the executive. There could also be unintended consequences—among them unfairly implicating people in charges of misconduct, putting incomplete or erroneous information into the public arena, and incorrectly anticipating that government has determined it will follow a particular course of action.

The media lacks a structured and rigorous system for investigating and assessing the risks of publishing a disclosure. It is not in the public interest that internal investigations be undermined or that workplace confidentiality be breached. In recent times we have seen Australian media organisations do the following:

• publish the details of a forged email that the journalist in question had not seen and that had simply been read to him on the phone

• break a news embargo by announcing the Deputy Prime Minister’s visit to Iraq before she had arrived there—an action that could have had serious security ramifications

• report on a high-level security operation that involved the raiding of 19 houses and the arresting of several people on terrorism-related charges before the operation had been completed. Early release of this report could have endangered the lives of those involved in the operation.

The UK media seems to have even more trouble identifying the public interest, as exemplified by the controversy that erupted in July 2009 in relation to media organisations engaging in large‑scale hacking into the mobile phones of celebrities, politicians and political advisers.

A free and independent media with access to information is a crucial part of a modern democracy. There are countless examples of wonderful work done by the media in exposing corruption and maladministration. But the media is not, and cannot be, a formal part of the official public integrity framework. We do need to find a role for the media in the public interest disclosure regime, but that role is likely to be a limited one.

Organisational culture

Missing from much of the discussion of whistleblower protection has been the need to build a pro-disclosure workplace culture. This was a strong theme in the evidence the committee received, but it has attracted almost no public comment since the tabling of the report.

Whistleblower protections are needed only when systems have failed to take public interest disclosures seriously, when systems have failed to deal with such disclosures, and when employees making disclosures have suffered repercussions as a result of making the disclosure.

It is obviously preferable for employees to have disclosures treated appropriately and sensitively at the time they make the disclosure, rather than having to take remedial action to return themselves to the position they were in before making the disclosure.

Many who participated in the inquiry noted that there is in the public sector a strong culture that militates against those who question work practices. Organisational culture is as important as legislation in producing the desired outcome of facilitating public interest disclosures and supporting those who make them.

The committee recognised that legislation alone is insufficient to bring about cultural change and promote accountability in public administration. There is also an important role for leadership and education in promoting a more supportive environment, one in which people feel at ease when expressing their doubts about workplace practices.

A crucial recommendation of the committee is that the Commonwealth Ombudsman be given responsibility for providing assistance to agencies implementing the public interest disclosure system. The committee felt this should occur by promoting awareness among employees through educational activities and through an anonymous and confidential advice line.

Conclusion

Legislation to protect whistleblowers in the Commonwealth public sector is long overdue. I look forward to legislation based on the report of the House of Representatives Legal and Constitutional Affairs Committee being introduced into the parliament soon.[2]


[*] Following is the edited text of a paper presented by the Chair of the House of Representatives Legal and Constitutional Affairs Committee, Mark Dreyfus QC, MP, at the National Administrative Law Forum, ‘Administrative Law Reform’, Canberra, 6 August 2009.

[1] The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 came into force on 7 October 2009.

[2] The Government announced its response to the report on 17 March 2010. The response envisages a scheme which ensures there are processes in place, and protections offered, to support appropriate reporting of wrongdoing in the Commonwealth public sector: www.smos.gov.au/publications/2010/pms_20100317.html


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AdminRw/2010/4.html