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Thursday, March 18, 2010

Praise for whistleblower protection proposals that deliver Dreyfus +

The Commonwealth Government in responding to the Dreyfus report on whistleblower protection has accepted 22 of the 26 recommendations (detail on this not yet available) and, as reported in The Australian, won praise  from whistleblowers and legal academics for delivering a scheme that goes beyond the more limited schemes in force in the states, and addresses what was seen as a flaw in the report, extremely tightly drawn circumstances that would justify a public or media disclosure of wrong-doing.
"It is close to world's best practice," said legal academic A.J. Brown. "It will change the culture of government," said Peter Bennett, president of Whistleblowers Australia..... The government plans to introduce an internal system for handling public interest complaints within the bureaucracy that will involve every agency in the federal public service. If that system fails to address concerns about serious matters in a "reasonable" time, public servants will be given legal protection if they tell the media or anyone else. The scheme would also protect .. a smaller category of public servants who bypass the internal system and go directly to the media with public interest disclosures ..whenever exceptional circumstances exist, in cases where a public servant believes on reasonable grounds that there is a substantial and imminent threat to people's lives, health or safety."
The proposal appears to meet the Australian Law Reform Commission call  in a report released last week for a "robust" protection scheme.

Chris Merritt says the proposal passes the "Kessing test" and identifies only two gaps in the armoury: silence to date on compensation payable to those public servants who are victimised for using this new law to reveal maladministration, and the unfulfilled promise of the government on a related matter,  shield laws for journalists' confidential sources, where a bill which some argue doesn't go far enough is still stuck in parliament. Merritt reports calls for the states to lift their game in the light of this Commonwealth lead, but makes no mention that although it has many problems particularly in implementation, the NSW Protected Disclosures Act protects media disclosures in certain circumstances similar to what is proposed, and has done so for the last 15 years. The act provides that, in order to be eligible for protection, public officials making disclosures to members of Parliament or journalists must have already made substantially the same disclosure to an investigating authority or public authority, and the authority to whom the disclosure was made must have: decided not to investigate; or not completed the investigation within six months of the original disclosure being made; or investigated the matter but not recommended any action to be taken in respect of the matter; or failed to notify the person making the disclosure whether the disclosure would be investigated within six months of the disclosure being made.

When Hansard becomes available later in the day what Dreyfus recommendations, other than the public disclosure, weren't accepted will be clearer.

1 comment:

  1. Keith Potter5:27 pm

    Effective whistleblower protection is substantially reliant on prompt even handed interpretetion of FOI provisions, and legal entitlement of prompt disclosure to the media.

    For the past seventeen years Federal, State and Territory legislators have paid lip service to effective whistleblower protection.

    Time lapse between issuance of the Dreyfus Committee report and government finalisation of the 22 recommendations said to be accepted, suggests government doubtof ability to cope with disclosures of corruption.