With the passage of the Commonwealth’s Public Interest Disclosure Act you would think the golden age of whistleblowing has arrived. The Public Sector Union went so far as encouraging its members: “Anyone working in government who is witness to, or has information about corruption or maladministration can now make a disclosure without fear of reprisals. These new laws will protect them from payback.”
That’s not true. The new law is better than what we had, which was nothing. But it still has serious loopholes. It’s reckless to encourage whistleblowers without warning them of the dangers.
The biggest failing of the new laws is that agencies will still investigate their own complaints. No minister wants to front a press conference on corruption in their department. An internal complaint unit can make the whole thing go away by tipping off the perpetrator and terrorising the whistleblower. The government can sit on a complaint indefinitely during which time the whistleblower is vulnerable to retribution and cannot talk to the media.
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The new laws will be overseen by the Commonwealth Ombudsman. Although the Ombudsman’s office presents itself as a powerful oversight agency, whistleblowers find it a craven organisation reluctant to use the powers it already has. Janice Weightman, who blew the whistle on forged Defence security clearances, told The Courier-Mail:
“Five of us went to the Ombudsman but didn’t get anywhere. They put it in the too-hard basket. We were given the impression that no one wins against Defence; they are too big and too powerful.”
The Ombudsman will make any excuse not to get involved. If those excuses are put under the spotlight and found wanting, they respond along the lines of: “As a matter of courtesy, I need to advise you that any further correspondence about the issues already investigated will be read and filed but not responded to.”
Although the new laws give the Ombudsman increased powers, it remains an organisation reluctant to challenge fellow public servants. On the other hand there are no negative consequences for fobbing off a whistleblower. The organisation has been known to promise whistleblower protection then abandon them. Any whistleblower who trusts the Ombudsman with their welfare is at serious risk.
“The safest course of action for a whistleblower remains not make the complaint in the first place.”
Under the new laws, reprisals against whistleblowers are punishable by up to two years imprisonment, but as the CSIRO did when it sacked three whistleblowers, employers can claim the sackings are coincidental. Further, this would be enforced by the AFP who have been shown to be reluctant to uphold existing laws against crime within the public service. The AFP can sit on crime reports for years and if pressed, refuse to act. As one whistleblower told The Age:
“It was always ‘Yeah, we’re working on something else’ or ‘I’m overseas, we’ll get back to you’. And it sort of petered out after four or five months to no contact at all.”
The laws allow a whistleblower to go to the media if an investigation is “inadequate”, but this is vaguely defined. If the courts later disagree, the whistleblower could find themselves imprisoned or with a criminal record like fellow whistleblower Allan Kessing.
The new laws allow whistleblowers who suffer harm to sue for damages. When they do they will discover government lawyers make money not by quietly settling cases, but by escalating them. The Model Litigant Policy should stop this. It requires government lawyers to offer alternative dispute resolution and keep costs to a minimum. But government lawyers have been breaking this law for years. The government has the power to stop them, but doesn’t.
You may have heard of million-dollar “punitive damages” that courts occasionally award to punish an egregious offender and discourage repeat behaviour. Not so the new whistleblower laws which exclude punitive and exemplary damages. Instead, the whistleblower is only entitled to damages “to put them back in the position they would have been in”, and they still risk being held liable for costs. The safest course of action for a whistleblower remains not make the complaint in the first place. The new laws won’t protect whistleblowers reporting corruption by politicians.
Whistleblowers need to understand what they’re getting into. Their complaint will not be quietly resolved in a few weeks. It will drag on for years. It will cost them their job, their life savings and often their family. Their colleagues will turn on them. They will find it difficult to get another job; no one wants to work alongside a whistleblower. Some commit suicide. Civil rights lawyers and investigative journalists will not support them. Most lawyers will refuse to represent them. The opposition won’t help; it dislikes whistleblowers for the same reasons as the government. The public will not thank them. The public won’t even know their name.
The only thing worse than a corrupt society is one that harms the only people brave enough to report it.
*Brendan Jones is a military software engineer and Defence whistleblower
UPDATE. Attorney-General Mark Dreyfus issued the following statement to Crikey in relation to this story.
In relation to ‘You better be careful blowing the whistle – new laws have holes’, it is unquestionable that Commonwealth public-sector whistleblowers will have greater protection under the Government’s Public Interest Disclosure Act 2013 than prior to the commencement of the Act. The Public Interest Disclosure Act provides a clear set of rules for agencies to respond to allegations of wrongdoing made by current and former public officials, and strengthens protections against victimisation and discrimination for those speaking out, including what Professor A.J. Brown, a leading expert on whistleblower laws, has called ‘international best practice’ in giving whistleblowers recourse through the Fair Work Act to seek remedies against their employer.
The Act strikes the right balance to achieve a comprehensive and effective framework to ensure that disclosures of wrongdoing are properly investigated and dealt with, and to ensure protection for public officials who make public interest disclosures. It will encourage a pro-disclosure culture, by facilitating disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector. The passage of this legislation means that the Commonwealth will join the other Australian jurisdictions with dedicated legislation to facilitate the making of public interest disclosures and to protect those who make them.
To clarify some inaccuracies and omissions from Mr Jones’ article.
- Mr Jones accepts that under the Act reprisals against whistleblowers are an offence punishable by up to two years imprisonment. But offences also apply to protect the identify of whistleblowers and, in addition to the criminal sanctions which may be imposed for ‘terrorising’ a whistleblower, he or she can apply under the Act to the Federal Court or Federal Circuit Court for a civil remedy, or alternatively seek recourse under the Fair Work Act.
- A whistleblower who seeks redress through the courts will not be liable for the costs of the agency or department unless the proceedings are vexatious, without reasonable cause or unreasonably cause the other party to incur costs. However, a court can still order that the agency or department pay the costs of the whistleblower, if it is unsuccessful in defending its claim.
- The government cannot ‘sit’ on a disclosure indefinitely. There are time limits under the Act for steps to be taken to handle a disclosure, and this includes when an investigation into a disclosure must be completed. One of the criteria for external disclosure, including to the media, is if the investigation has not taken place within the statutory time limit.
- One of the grounds that allows an external disclosure is for a whistleblower to believe on reasonable grounds that an investigation was inadequate.
- The Ombudsman has significant oversight powers under the public interest disclosure scheme and is required to report annually on disclosures received during the year and any complaints made about the handling of those disclosures.