Inside Story

Blowing the whistle

Protection for whistleblowers in Australia is patchy and inconsistent, writes Norman Abjorensen

Norman Abjorensen 10 September 2009 1087 words

Former customs official Allan Kessing at Downing Centre courts after his sentencing hearing in June 2007. He was found guilty of leaking two highly classified reports to the Australian. AAP Image/Dean Lewins

THE DISGRACEFUL pursuit of the former customs official Allan Kessing over his revelation of serious security lapses at Sydney Airport highlights an official obsession with secrecy in Australia and a major deficiency in protection for whistleblowers acting in the public interest. Mr Kessing faces the possibility of further charges, having already been convicted under section 70 of the Commonwealth Crimes Act, for which he received a nine-month suspended prison sentence and was ordered to pay a $1000 good behaviour bond. The federal police are now considering whether to take further action after he admitted to leaking a report to a staffer of a federal Labor MP.

There is no doubt that Mr Kessing was acting in the wider public interest – and immediate action was taken to address issues subsequently revealed in newspaper articles based on the same report – and there is no suggestion that he acted for personal gain. Indeed, he now faces a significant debt as a result of his legal fees

Despite some perfunctory legislation, official Australia has always been reluctant to acknowledge that the willingness of public officials to disclose wrongdoing within their organisations is an essential element in a robust democracy, as important as the work of an auditor-general or an ombudsman. Although nearly all Australian jurisdictions have introduced relevant legislation for the public sector since 1993, both the content of the laws and the practice of handling whistleblowing continue to be vexed issues. Laws to protect whistleblowers are patchy at best, and the Commonwealth remains by far the greatest laggard, despite promises by Labor to address the issue. The fact that the sweeping provisions of section 70 of the Crimes Act, under which Mr Kessing was prosecuted, still remain on the statute books is a monument to inaction.

Existing federal protection for whistleblowers is limited in effect and narrow in scope. Restrictions on Commonwealth public sector employees disclosing government information are contained in a range of acts and regulations, including the Crimes Act, the Criminal Code Act, the Public Service Act, the Privacy Act and the Freedom of Information Act.

The primary source of protection for whistleblowers is section 16 of the Public Service Act. This section notes that a person performing functions in or for an agency “must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct.” (Section 16 of the Parliamentary Services Act provides the same protection for persons performing functions in or for a parliamentary department established under that Act.)

But a report tabled earlier this year by the House of Representatives Legal and Constitutional Affairs Committee indicates that only two-thirds of employees in the Australian government are protected by section 16 of the Public Service Act; employees of agencies falling within the Commonwealth Authorities and Companies Act 1998 are not covered, and nor are former public servants, contractors or consultants. The committee, chaired by Labor MP Mark Dreyfus, made a series of recommendations for reform but the government has yet to respond.

As things stand, there is little incentive for an official to blow the whistle, no matter how serious the matter at hand. A study in 2007, led by Griffith University, surveyed public servants in the Commonwealth and three states and found that 71 per cent of the almost 8000 respondents had observed at least one instance of wrongdoing or serious maladministration in the preceding two years. Of those who reported wrongdoing, 22 per cent replied that they had been the victim of reprisal from managers or co-workers.

THERE IS NO universally accepted definition of whistleblowing, but one that has gained broad acceptance emanated from a Senate committee inquiring into whistleblowing in 1994: “The disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action.” The report came at a time when whistleblowing featured prominently on the political agenda, in the wake of such well-publicised corruption investigations as the explosive Fitzgerald Inquiry in Queensland. In 1991, a review of Commonwealth criminal law went so far as to accept the broad principle that in a democratic society “the public should have access to as much information as to the workings and activities of government and its servants as is compatible with the effective functioning of government.”

As a result of this peaking of public interest, a raft of public interest disclosure legislation was passed – South Australia in 1993; Queensland, the ACT and New South Wales in 1994; the Commonwealth 1999; Victoria 2001; Tasmania 2002; Western Australia 2003; and Northern Territory 2008. There is, however, significant inconsistency in the types of wrongdoing about which protected disclosures can be made under these various laws. In some circumstances the conduct about which a disclosure may be made appears to be too general and to extend beyond what we might regard as whistleblowing. In other cases – where, for example, only unlawful behaviour is covered, not maladministration – the conduct is too narrowly defined.

Only three states – South Australia, Queensland and Western Australia – have seen fit to detail the types of public sector wrongdoing covered, and they are also the only jurisdictions that provide remedies for potentially or actually aggrieved whistleblowers. Only one jurisdiction, New South Wales, extends protection in certain circumstances to officials who make public interest disclosures to a member of parliament or the media.

Australia’s efforts in enacting effective legislation protecting public interest disclosure lag behind many comparable countries. In Canada, for example, the Public Servants Disclosure Protection Act lists the “wrongdoings” that may legitimately be revealed, makes illegal any reprisals against public servants who disclose or co-operate with investigators and establishes the office of the Public Sector Integrity Commissioner. In the United States, the Whistleblower Protection Act of 1989 –extended in 1994 to cover employees of some government corporations and employees in the Veterans Administration – prohibits from reprisals federal officials who blow the whistle on public sector misconduct and provides a means of redress, including financial compensation, for any loss suffered. Australia, it should be noted, also has an international obligation to protect whistleblowers, deriving from its signing of the United Nations Convention Against Corruption, which makes specific reference to protection for public interest disclosure.

The reluctance to enact stringent legislation to protect public interest disclosures coupled with inadequate and compromised laws relating to freedom of information and an absence of shield legislation for journalists all serve the cause of maintaining official secrecy and denying the public’s right to know. •