Whistleblower law inadequacies evident in parliamentary inquiries in Canberra and Sydney

The House of Representatives Legal and Constitutional Affairs Committee has been beavering away on its whistleblower protection reference.Many submissions and transcripts of the six public hearings held to date are now available.

Commonwealth Ombudsman Professor John McMillan gave the Committee this snapshot when he appeared on 4 September:

Over the past two decades across all levels of government in Australia we have witnessed the prosecution and at times imprisonment on corruption and fraud offences of a state premier, state government ministers, a commissioner of police, a chief magistrate, members of parliament, judges, numerous officials at all levels of government and prominent national businessmen. Royal commissions and special inquiries in Australia over the past decade have investigated allegations of corruption in political lobbying, policing, job recruitment, occupational licensing, vehicle registration, land and building development, offender management, public procurement, revenue collection, financial investment and foreign bribery, as well as within crime and anticorruption commissions themselves.

If we lower the bar and look beyond corruption to illegality, maladministration, fiscal wastage and public health threats, the risks to integrity in government are much larger. To combat those threats and to preserve integrity, we need a comprehensive ethical strategy and a strong legal framework. Whistleblower protection laws must be an essential part of that framework for the simple reason that nearly all unethical behaviour occurring within organisations is known to and disapproved of by insiders. They are usually the first and sometimes the only ones to know of malpractice occurring within. So we need to encourage honest workers in the organisation to
uphold the public interest and to report what they know. To encourage them, we must first assist and protect them. This should not be a false promise; telling the truth should not be a costly mistake.

Our present legal framework is deficient. Simply, it lets people down. There is not a clear procedure for Australian government employees to report knowledge of wrongdoing, adequate protection for those who do or punishment for those who retaliate."

There haven't been any ticks for the status quo. Public Service Commissioner Lynelle Briggs probably came closest on 25 September when she told the Committee "(t)he commission believes that the current system works reasonably well but that there are a number of enhancements that could be made to deliver a more effective whistleblowing system."After a couple of hours of Q and A with the Committee, she wrapped up saying "(t)here will be an enormous amount of work to do in the future."

Much of the debate revolves around what disclosures should be protected, how protected disclosures should be encouraged, and how to make the system work in practice.Both the Ombudsman and the Commissioner submit their organisations are best equipped to manage the whole issue of public interest disclosures.

A NSW parliamentary committee has also been looking at the adequacy of state law and practice in this area, but to date there is less to show for its efforts. It is yet to publish any submissions and the only hearing to date involved two and a half hours with the Deputy Ombudsman and the Deputy Commissioner of ICAC. The Committee Chairman in a Media release at the end of September said it was clear" that the effectiveness of the current legislation that protects whistleblowers, that is the Protected Disclosures Act, is limited and there is no real ownership of the act. The evidence given has drawn attention to some pretty fundamental issues about the operation of the legislation.” More hearings to follow.