Professor AJ Brown is one of Australia’s foremost experts on integrity and has been researching whistleblower protection and freedom of speech laws for more than a decade.
Professor Brown was afforded the honour of presenting the annual Henry Parkes Oration in Tenterfield, 130 years after Henry Parkes delivered a speech at the Tenterfield School of Arts on the needs for Australian colonies to federate into one nation.
Below is an extract from Professor’s Brown oration:
For decades, Australian journalists have uncovered truth around the world – ‘telling it like it is’ with the frankness that makes Australians so well-loved. Indeed, for most of the 130 years since Sir Henry Parkes’ original Tenterfield Oration, the world has seen Australia as one of the healthiest, most innovative democracies.
No wonder the world stood shocked in June when the Australian Federal Police executed search warrants on News Corporation and ABC journalists in Sydney and Canberra.
Alongside trends in open government, we see powerful counter-trends in ever more criminalisation of disclosure and information, and other weaknesses in our integrity systems. Even before the AFP raids, Australia was slipping on international press freedom indexes. Since 2012, it has been slipping on Transparency International’s Corruption Perceptions Index.
Taking a long-term view, we see wider issues than simply freedom for public interest journalism to operate. Clearly, press freedom is vital and we must have huge sympathy for journalists caught in the cross-fire. But importantly, in Australia at least, this is still mainly just a cross-fire. The primary targets – intended and sometimes unintended – are actually the employees, officials and everyday citizens who might, and do, speak up with concerns about wrongdoing in their organisations, on whom not only journalists but all of us rely.
I am talking about the whistleblowers at the heart of this struggle. Inevitably, they have to disclose information; and the trouble can start even when they do this internally. These are people who are actually being prosecuted, even when, as yet, journalists are hopefully unlikely to be. And whistleblowers play an even more fundamental role in public integrity than the media, because they help ensure honesty, integrity and performance within our institutions, every single day. Even if it never reaches the public domain.
Everyday workers and officials have served us as whistleblowers since the dawn of institutions. A little known example is Sir Henry Parkes himself. As a young man in 1845, having raised a dispute within Customs including about officials stealing alcohol (and worse) on the Sydney wharves, Parkes went further by penning an anonymous letter to the Sydney Register. He was merely suspended for this leak, tending to confirm its merit. But Parkes’ whistleblowing led to his resignation, finding his treatment ‘most unreasonable and unjust’.
The rest, as they say, is history. There are no end of tales about repercussions whistleblowers can experience, especially if dragged or forced into the public domain.
In fact, not all whistleblowers suffer in our institutions today, and even fewer need to. And this is exactly the aim of whistleblower protection. Even if never likely to be easy, speaking up is often something that individuals and organisations can learn to encourage and manage quite well. Often it is exactly because it is handled well, that we don’t hear about it.
But clearly, there is also plenty going wrong. Especially now.
We have a crisis of confidence in our whistleblowing regimes, made worse because criminal actions against whistleblowers are going too far. When this happens, we have to recognise the consequences. As Law Council president Arthur Moses SC says, it not only has a ‘chilling effect’ on public disclosures to the media, but all whistleblowing. It makes all workers and officials unsure about whether their superiors really do want them to speak up, worry about the correct way to do it, and fear they – not the problem – will become the target.
So, people with concerns are left with two options. Say nothing – or if it’s too serious to let go, leak anonymously, even though in the surveillance age this is increasingly dangerous. The results are obvious. Our society’s integrity systems start to break down, at every level. And yet, this is the path Australia has managed to put itself on.
This is a tragedy, because Australia actually has a record of innovation in whistleblower protection. In principle, we know how to get the balance right. But despite some strengths – especially many of the new Corporations Act protections achieved by the Turnbull-Morrison government – our whistleblowing laws currently amount to a well-motivated but largely dysfunctional mess. Many agencies and companies succeed in recognising and protecting whistleblowers, but often despite the relevant laws, not because of them. And they are undermined by the tide of confused, inconsistent secrecy provisions on which government continues to embark, often apparently without realising what it is doing.
The new attention on these issues, brought by the AFP’s unfortunate attempts to enforce our current mess of laws, can let us turn things around. The seven steps for doing so are clear, and achievable within this term of Parliament, even if some require a comprehensive view, or a return to basic principles. Our political leaders, especially current and former Attorneys-General with the skills of Christian Porter and Mark Dreyfus, are capable of doing it. So, however we got into this mess, by taking the right approach, we can get ourselves out.
But we have to understand, this is not simply for the sake of press freedom, nor even for the sake of justice for everyday workers and officials. It is vital to safeguarding the future of Australian democracy.
View the full oration and Professor Brown’s 7 point plan here.