Thu Nov 28

For the sake of our democracy, Australia urgently needs a whistleblower protection authority

Written by A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith University

As federal parliament rushes to a close, it’s become clearer that a dedicated agency to enforce the nation’s various whistleblower protection laws will be an important priority for the 48th parliament, after the next election.

Widely recognised as the biggest missing link ^[1] in Australia’s national integrity systems, such a body would support employees who speak up about wrongdoing. It would also help employers and regulators resolve claims of detrimental action. Finally, it would help make legal protections real by shouldering the huge costs of securing compensation for impacts suffered by those doing the right thing.

This month, the landmark parliamentary inquiry into the PwC scandal ^[2], led by Labor Senator Deborah O'Neill and Green Barbara Pocock, was unanimous in its clear imperatives for reform:

Ensuring whistleblower protections apply across all sectors and types of organisations. Because they are “partnerships” rather than “corporations”, large audit, accounting and consulting firms are one example of employers that escape current protections.
Aligning whistleblower protection laws across the public and private sectors. The inquiry noted at least ten federal laws provide different, confusing standards of protection across different entities and sectors.
Greater practical support for whistleblowers. Key to this is the establishment of a Whistleblower Protection Authority, covering “both the public and private sectors”.

These calls should help focus the two efforts the federal government has underway to review existing laws. The first is a consultation by Attorney-General Mark Dreyfus on fixing our failing public sector whistleblowing laws, which is yet to bear fruit. The second is a new statutory review of the main whistleblowing regimes that apply to the private sectors, overseen by Assistant Treasurer Stephen Jones.

This week, federal independent MPs Andrew Wilkie, Helen Haines, David Pocock and Jacqui Lambie upped the ante by taking further steps ^[3] towards their own Whistleblower Protection Authority bill.

This follows recommendations dating as far back as the Senate Select Committee on Public Interest Whistleblowing ^[4] in 1994, and the Parliamentary Joint Committee on Corporations and Financial Services ^[5] in 2017.

A body to protect whistleblowers could make a real difference

While any actual reform is unlikely before the next election, all these developments point to a growing consensus for action.

But with new integrity agencies coming under scrutiny, how do we expect a whistleblowing protection body – whether stand-alone or built into an existing body – to make a difference?

In a stark reminder of what is needed, Australian Taxation Office whistleblower Richard Boyle lost a bid earlier this month ^[6] to have the High Court intervene in his six-year-long prosecution ^[7] for speaking up against oppressive debt collection practices by his agency.

The High Court ruling demonstrated the gaping holes in federal whistleblowing laws. For example, they fail to cover reasonable preparatory or supporting actions that a whistleblower may need to undertake, not just the actual act of disclosure.

In a technical tactic to avoid the whistleblowing law, the ATO and Director of Public Prosecutions charged Boyle ^[8] with improperly recording information - not with revealing it. This enabled them to pursue him criminally, despite having already sacked him for complaining too much.

In my view, far from serving any public interest, this prosecution was and is simply malicious. It should have been stopped long ago.

This loophole in the law needs to be fixed. But in addition, a whistleblower protection authority would have a crucial role to play as an extra check-and-balance, by acting as a block on any such prosecutions unless they truly are necessary.

And that is especially the case when agencies seek to punish whistleblowers after failing to first deal properly with their internal disclosures about wrongdoing. This situation applies not only to Richard Boyle, but also to Afghan Files whistleblower, David McBride.

In October, McBride won the right ^[9] to appeal his five year, eight month prison sentence for providing defence documents to the ABC about the military justice response to alleged Afghan war crimes by Australian special forces.

The Commonwealth’s tactics in suppressing all evidence relating to his internal complaints about perceived injustices were central to his inability to raise a public interest defence as a whistleblower. These were never recognised by the Inspector-General of the Australian Defence Force for what they actually were: protected public interest disclosures.

Again, a whistleblower protection authority would ensure federal agencies honour the principles underpinning our whistleblower protection law. If they fail to recognise and manage internal disclosures properly, a whistleblower should then be entitled to raise a statutory public interest defence in a fair and open court.

Many agencies and companies fulfil their responsibility to have good whistleblowing policies. They are listening to whistleblowers and learning to properly support and protect them. These are fundamental goals of our laws.

Commonwealth public servants need particular protection

But as well as lots of loopholes and inconsistencies, there are too many agencies simply not implementing the laws, and doing nothing to support and compensate whistleblowers. This again proves why a dedicated enforcement agency is necessary.

The Robodebt scandal proved the problem on a wide scale. Despite Services Australia officers such as Jeannie-Marie Blake ^[10] objecting to the scheme, none of their complaints were recognised for what they were: concerns about serious maladministration (or worse) requiring independent monitoring and rights to protection, under the Public Interest Disclosure Act.

Indeed, our research ^[11] compiled for the attorney-general’s review of public sector protections ^[12] highlighted that when a federal public servant raises concerns about wrongdoing, they are four times less likely to be recognised and protected as a whistleblower than in the New South Wales government. And seven times less likely than if the disclosure was made in the Queensland public service.

Small wonder, then, that protection and support does not flow, and that whistleblowers are left flailing for support and compensation for any damage done.

A whistleblower protection authority to change this situation, will only be as good as the powers and resources it is given, and the people tasked to lead it. The laws it enforces also badly need upgrading and simplification ^[13].

Thankfully, as momentum builds towards Australia’s next parliament, there is increased hope that within the next three years, this necessary reform will come to pass.