Amid the turmoil of the Labor leadership spill leading to a new Prime Minister, a milestone bill quietly passed through Parliament on Tuesday.
The Senate spent only about an hour on the Public Interest Disclosure Bill, with its consequential amendments. Yet this legislation is the first to provide comprehensive whistleblower protections for Commonwealth public servants and contractors who reveal serious wrongdoing. It is important because it creates a building block for a new sort of accountability for governments. The new law is not a complete answer, but it’s a first step.
At a time when politicians are talking again about how people are disengaged from public affairs, this legislation may signal a new kind of engagement, where individuals are motivated to bring wrongdoing into the public domain if it is not dealt with internally.
When the redux PM reaches out to engage the Facebook generation, he might just find that their political expression is not absent, just being channeled into non-traditional forms. In this new world, Crikey beats dead-tree versions of the news, and the Twitter feed for Q&A beats political party branch meetings. The world of whistleblowing is citizen-centric, and it doesn’t just rely on old-world concepts for “responsible government”: Parliaments and courts.
The younger generation Rudd appealed to in his speech understands digital resistance more than other forms of political activity. What is shouted across social media might be a new and different generational piece of what is missing in this engagement. That whole new way of thinking — out loud and transparently — brings with it demands for new structures of government accountability, such as better tools to openly reveal serious wrongdoing.
Highlights of the new law are:
- A key mechanism of new protection for whistleblowers is the Fair Work Act 2009 (Cth). They will be able to seek remedies where they have been unfairly dismissed or had adverse action taken against them. This allows a whistleblower access to these working provisions and the forum of the Fair Work Tribunal to enforce their rights.
- The risk of costs being awarded against a whistleblower has been alleviated. When whistleblowers seek to enforce their rights under the bill, the costs of that action (even if they lose) are now only payable by the whistleblower where action is brought vexatiously. This is an important step forward as the cost of whistleblowers seeking compensation via legal action has proven to be a major problem.
- There are now tougher penalties for reprisal against whistleblowers (up to two years in prison).
- It is now possible to make a disclosure externally (such as to the media). A whistleblower will still be protected if he goes public in circumstances where he believes on reasonable grounds that an investigation into his internal disclosure was inadequate. (Until last week, the proposed, almost impossible test was that “no reasonable person” could conclude that the investigation was adequate.)
- To gain protection, the bill requires the whistleblower to disclose the wrongdoing internally first. But this is the most common path that whistleblowers follow anyway — as shown by research by Griffith University as well as new research this month from the UK showing 83% of workers blow the whistle at least twice, usually internally.
- Whistleblowers can now disclose directly to their supervisors, which is also the most common pattern, rather than having to hunt down the “disclosure officer” of the department.
- The Ombudsman’s Office will play a substantial oversight role in how departments handle whistleblower complaints. Until now, how a whistleblower was treated really depended on the particular vagaries of her own agency. With the Ombudsman peering over their shoulder regularly, departments will have a stronger incentive to deal with whistleblower complaints properly. Agencies will no longer be a law unto themselves in how they deal with whistleblower complaints.
The new law is not perfect — it still has major gaps. For example, it excludes whistleblowing about politicians as well as the entire intelligence community, intelligence information and “policy” matters. These should have been included. This means the act will not give comfort to high-end national security whistleblowers like Edward Snowden or Bradley Manning. Nor will it provide a failsafe against politicians who lie to the citizenry on a large scale on policy matters.
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But the act is well suited for government whistleblowers in most agencies and circumstances. It will help honest public servants who reveal corruption, maladministration or breaches of law in anything from fraud in IT contracts to the handling of immigration visas. In the areas the act covers, it does so in a reasonably substantial manner. It fills at least some of a yawning gap where there has been little to no coverage. Further, as part of the process, there is a government commitment to conduct a review in two years’ time.
Given the political realities of a struggling Labor government, possibly in its dying days, getting this whistleblower legislation — with its 73 improving amendments — through the Parliament hours before the prime minister was overthrown was a Herculean task. In recognition of this, late Tuesday afternoon this week a little clan of “integrity in government” sorts met to share glasses of bubbly and take a few happy snaps to mark the occasion. It was a modest, low-key affair, held, fittingly, in the public cafe at Parliament House.
Crikey quoted me in a March editorial saying it would be an admirable legacy if Attorney-General Mark Dreyfus and this Parliament managed to push whistleblower protections through before it dissolved. They have achieved this goal. But perhaps more importantly, this bill could be the start of a conversation with a disengaged generation about improving transparency — and trust — in the institution of government.
*Dr Suelette Dreyfus is a research fellow in the Department of Computing and Information Systems at the University of Melbourne