01 Apr 2009

Parliamentary committee recommends whistleblower legislation

by Michael Palfrey, James Stellios

The recent report into whistleblower protection found that the current protections are inadequate and that legislative reform is required to better facilitate disclosure

On 25 February, Senator John Faulkner, Cabinet Secretary and Special Minister of State, announced the tabling of a report from the House of Representatives Legal and Constitutional Affairs Committee into whistleblower protection.

Like previous reviews into whistleblowing, the Committee's inquiry found that the current protection for whistleblowers is inadequate, and that legislative reform should be undertaken to develop a framework to facilitate disclosure. In welcoming the report, Senator Faulkner said that the enhancement of mechanisms to allow whistleblowing was consistent with the Government's "commitment to improve the openness, transparency and accountability of government and the public service".

What is involved in whistleblowing?

As the Committee Report recognises, the disclosure of wrongdoing and irregularities in government administration - whistleblowing - gives rise to a range of competing interests. There is an important public interest is the exposure of such conduct and the promotion of integrity in government administration. Furthermore, there is a public interest in the provision of information about government to the public.

Whistleblowers will often act out of a sense of moral or ethical obligation to expose wrongdoing. However, whistleblowers often feel a sense of loyalty to colleagues and fear adverse consequences arising from the disclosure of wrongdoing. To add to the complexity, whistleblowing legislation has implication for the Government's right to make decisions in confidence and for the rights of those accused of wrongdoing.

What are the current protections for whistleblowers?

The current protections for whistleblowers are limited. There are various restrictions on Commonwealth public sector employees disclosing government information. The restrictions are found in a range of Commonwealth Acts and Regulations, including the Crimes Act 1914 (Cth), the Criminal Code Act 1995 (Cth), the Public Service Act 1999 (Cth), the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth).

The primary source of protection for whistleblowers is contained in section 16 of the Public Service Act, which provides 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).

However, the Committee's Report indicates that only two-thirds of employees in the Australian government sector are protected by section 16 of the Public Service Act; employees of agencies falling within the Commonwealth Authorities and Companies Act 1998 (Cth) are not covered, nor are former public servants, contractors or consultants.

Other Commonwealth legislation, like the Occupational Health and Safety Act 1991 (Cth), the Aged Care Act 1997 (Cth), and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) provide protection in certain defined circumstances only.

As the Report recognises, "whistleblowers under the current arrangements remain exposed to the criminal law, and civil actions such as defamation and breach of confidence. There are currently no provisions to protect whistleblowers who make disclosures to law enforcement authorities". Protections against unlawful termination also have their limitations.

What were the terms of the inquiry?

In July 2008, the Commonwealth Attorney-General, on behalf of Senator Faulkner, asked the Committee to consider a preferred model for whistleblowing protection in Australia. Its terms of reference covered:

  • the categories of people who could make protected disclosures;
  • the types of disclosures that should be protected;
  • the conditions that should apply to a person making a disclosure;
  • the scope of statutory protection that should be available;
  • procedures in relation to protected disclosures;
  • the relationship between the Committee’s preferred model and existing Commonwealth laws; and
  • such other matters as the Committee considered appropriate.

What were the recommendations?

The Committee's inquiry found:

"that the current Commonwealth public sector whistleblower protection system is inadequate and new separate legislation in this area is needed".

The Committee made 26 recommendations for reform, reflecting what the Committee considered to be "primary legislative priorities" being the promotion of integrity in public administration and support for open and accountable government. The recommendations include:

  • the enactment of legislation entitled the Public Interest Disclosure Act to provide whistleblower protections in the Australian Government public service, and the repeal of section 16 of the Public Service Act and section 16 of the Parliamentary Services Act
  • that the purpose of the Act be to promote accountability and integrity in public administration
  • that the principles to guide the provisions of the Act include:
      • that it is in the public interest that accountability and integrity in public administration are promoted by identifying and addressing wrongdoing in the public sector
      • that people within the public sector have a right to raise their concerns without fear of reprisal
      • that people raise those concerns in good faith
      • that governments have a right to consider policy and administration in private; and
      • that government and the public sector be receptive to concerns which are raised
  • that the Act have a wide coverage to include APS employees; employees of agencies covered by the Commonwealth Authorities and Companies Act; contractors and consultants engaged by the public sector, and their employees; Australian and locally engaged staff working overseas; members of the Australian Defence Force and the Australian Federal Police; parliamentary staff; former employees and others, such as volunteers, deemed to be public officials
  • that, after a period of time, the Government consider legislative protections for members of the public wanting to make such disclosures
  • that the types of disclosures covered include illegal activity; corruption; maladministration; breach of public trust; scientific misconduct; wastage of public funds; dangers to public health, safety or the environment; official misconduct; and adverse action against a person making a disclosure under the Act
  • that the person making the disclosure has an honest and reasonable belief that the conduct is disclosable under the Act; and
  • that the protection offered under the Act extend to immunity from criminal liability, liability for civil penalties, civil actions such as defamation and breach of confidence and administrative sanction.

What does this mean for your agency?

If the Committee's recommendations are accepted and given legislative effect, agencies would be required to:

  • establish disclosure procedures and report on the use of them to the Commonwealth Ombudsman; and
  • investigate disclosures, taking care to maintain confidentiality and protect those who make disclosures from detrimental action.

In addition, the Commonwealth Ombudsman, the Australian Public Service Commissioner and the Merit Protection Commissioner would be authorised to investigate disclosures, with other officers, such as the Aged Care Commissioner and the Privacy Commissioner, authorised to investigate disclosures relevant to their area of responsibility.

The Commonwealth Ombudsman has general administration and oversight of the Act.

Where to from here?

The Government's response to the Committee's Report and recommendations has been favourable. In announcing the tabling of the Report to Parliament, Senator Faulkner emphasised that the Government "is committed to enhancing … mechanisms to allow public interest disclosures", considering the policy to be consistent with the Government's broader policies of open, transparent and accountable government. Senator Faulkner signalled that legislation would be developed later this year with a view to its introduction in this term of the Parliament.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.