Australia’s first national whistleblower protection law takes the country a long way towards world’s best practice under extensive amendments introduced today by the Gillard Government to its Public Interest Disclosure Bill 2013, according to Australia’s top whistleblowing law expert.
Griffith University professor of public policy and law, A J Brown, called on all parties to see that the bipartisan-backed Bill is passed in the remaining days of parliament.
The Public Interest Disclosure Bill was promised by the Government in 2007, and in its 2010 agreements with Independents Andrew Wilkie, Rob Oakeshott and Tony Windsor.
“Despite a rocky road, the amendments introduced today by Attorney-General Mark Dreyfus mean that, overall, this Bill will establish the most comprehensive protection regime for public sector whistleblowers in Australia,” Professor Brown said.
“There are major limits on the scheme – especially lack of protection when public officials report wrongdoing by politicians, and exclusion of intelligence agencies from much of the scheme.
“These gaps should and must be filled, if not now, then later.
“However, in all other circumstances, if federal public servants, contractors, and employees of contractors report wrongdoing within the Commonwealth public sector, they will now receive a historic level of protection.”
Professor Brown is Program Leader, Public Integrity and Anti-Corruption, in the Centre for Governance and Public Policy at Griffith University.
The Bill is the first national law in the world, after the Australian Capital Territory, to formally embed reprisal risk assessment and prevention obligations in the government’s internal integrity systems, Professor Brown said.
“The Bill also follows international best practice by giving whistleblowers access to the Fair Work Act regime to get remedies if mistreated by their employer – the first time whistleblower protection has been embedded in Australian workplace law.
“It also introduces a new legal costs regime in favour of whistleblowers who cannot access sufficient remedies through the Fair Work regime, to help overcome the failure of previous compensation schemes at State level.”
Protection will also now remain if whistleblowers go public based on a reasonable belief that the response to their internal disclosures has been inadequate – although this remains subject to an additional public interest test, as well as excluding intelligence agencies and information.
The Bill comes after many years of effort by advocates, policymakers and researchers, including the comprehensive Australian Research Council project, Whistling While They Work, whose findings informed the ground-breaking House of Representatives inquiry chaired by Mr Dreyfus in 2009.
“Griffith University is proud to have led research which has informed, and will continue to inform, deliberation over this vital accountability reform,” Professor Brown said.
The Whistling While They Work project revealed reporting by employees as the single most important way that wrongdoing within government is brought to light, but that fewer than 2% of public sector whistleblowers received formal support and protection.
Further research by Griffith University in 2012 revealed that while 80% of Australian employees feel personally obliged to blow the whistle on wrongdoing in their organisations, only 49% felt their managers would be serious about protecting them – and only 33% of federal public servants.
The research has also informed state law reform in Queensland, NSW and the ACT, and the Public Interest Disclosure (Whistleblower Protection) Bill 2012 introduced by Independent MP Andrew Wilkie in October.
“While it is not perfect, and will need monitoring, review, and continual improvement, the Government Bill as proposed to be amended is testimony to the commitment over many years of politicians from all sides of politics,” Professor Brown said.
Professor Brown called on all parties to support the Bill, commit to filling the gaps left open by the legislation, and support development of comprehensive whistleblower protection laws for the private sector.
Public Interest Disclosure Bill 2013 (Cth) – with Government amendments
Key features (major Government amendments in italics)
- Very broad categories of ‘disclosable conduct’ (reportable wrongdoing) – cl. 29
- Very broad coverage of all public servants and Commonwealth employees, Australian Defence Force, Commonwealth contractors and employees of Commonwealth contractors – cl. 30
- Except intelligence agency personnel not protected if they go public – cl. 26, 41
- And staff of Members of Parliament not protected – cl. 30
- And wrongdoing by members of Parliament not included – cl. 29, 30
Internal protection obligations
- Agencies must assess reprisal risk against whistleblowers – cl. 59(1)
- Agency heads must protect and support whistleblowers – cl. 59(3)
- Disclosures to any supervisor or manager attract protection – cl. 26, 34, 60A
- Discloser’s consent required for name and contact details to be given when disclosure ‘allocated’ (assessed and referred for investigation) – cl. 44(1)
- Discretions not to investigate have been tightened, and must now be notified to Ombudsman or IGIS – cll. 48(1), 50A
- Other key agency decisions must also be notified – e.g. cl. 44(1A)
- Discloser must be kept informed of progress of investigation – cl. 52(5)
- Whistleblower may complain to Ombudsman or IGIS about any breakdown in the process or failure to support and protect – cl. 42, 46, 58 (Notes)
- Whistleblower can access Fair Work Act protections and remedies – cl. 22
- Direct Federal Court compensation for reprisals (uncapped) also available – cl. 14
- New public interest costs rule (whistleblower indemnified from paying legal costs even if they can’t show reprisal, but can recover legal costs if reprisal proven) in Federal Court compensation actions – new cl. 18
- Protections broadened to apply to disclosures that ‘tend to show’ wrongdoing (objective test) irrespective of what discloser believes they are revealing – cl. 26
Ability to go public
- Suppression orders (designated publication restrictions) now only affect protection if breached knowingly and without reasonable excuse – deleted from cl. 26; cl. 11A
- Whistleblower may now go public if s/he ‘believes on reasonable grounds’ the internal response is inadequate (no longer ‘no reasonable person’ would accept that it is inadequate) – cl. 26; deletion of cll. 37, 38, 39
- Public interest test no longer quite as biased against external disclosure as in original Bill – cl. 26(3).