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Wednesday, October 31, 2012

Whistleblower protection still over the horizon

Independent Andrew Wilkie tried to get things moving on whistleblower protection legislation by introducing the Public Interest Disclosure (Whistleblower Protection) Bill 2012  in the House of Representatves on Monday. But any hope that the government would pick up and run with it were quickly disappointed. Special Minister of State Gary Gray chose a media release to announce the bill was "well-motivated but falls short of necessary safeguards and balance." 

No amendments will suffice apparently. While "the government shared Mr Wilkie’s strong desire to provide effective protections for Commonwealth employees willing to identify instances of maladministration, misconduct and corruption" it's, ho hum, we need time to finalise our position and get our version ready for parliament.... next year.

If you need a recap:
  • ALP commitment to act on whistleblower protection prior to 2007 election. (They also talked then about justice for Allan Kessing, but that's another incomplete story.)
  • House of Representatives Standing Committee on Legal and Constitutional Affairs (Dreyfus) asked to examine models in 2008 and reported in 2009.
  • Government responded to the recommendations in March 2010 in a positive manner and went a bit further than the committee in some respects, including on public disclosures. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance. Whistleblower protection is about ensuring that there are appropriate processes in place, and protections offered, to facilitate the disclosure of wrongdoing, misconduct and corruption. The Government is committed to providing best-practice legislation to achieve this end. The Government will develop legislation reflecting this Government response for introduction during this year.(ie 2010). A further announcement about the legislation will be made in due course.”
  • The Gillard agreement in September 2010 with Andrew Wilkie to enable formation of her government included a commitment that parliament would pass the law by July 2011.
  • The Australian Public Service Commission State of the Service Report 2010-2011 released in November 2011: "The government is finalising the Public Interest Disclosure Bill. The legislation is intended to set up a scheme that provides for the investigation of unacceptable conduct in the Australian Government sector and extend the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011.
  • October 2012: Government commitment to legislate in 2013.
Update: other views contrast with those of Minister Gray.

Professor AJ Brown writing  in The Australian (paywall) 2 November:
Professor David Lewis:
Mr Wilkie's bill is already winning international support as a means of filling this gap. Yesterday, it was described as impressive by a world expert, David Lewis, professor of employment law at Middlesex University, London, and convenor of the International Whistleblowing Research Network.
He said he was surprised to read a comment by Special Minister of State Gary Gray that the bill falls short of necessary safeguards and balance. "In the 1990s, Australian states led the world in the development of whistleblowing legislation," Professor Lewis said. "This bill clearly demonstrates that lessons have been learned from the measures subsequently enacted . . . it builds on the best statutory provisions elsewhere. "Overall, this bill provides a great opportunity for the Australian federal government to lead the world on whistleblowing legislation." According to Professor Lewis, the Wilkie bill sets clear constraints on when and how whistleblowers should go public, unlike some countries that permit freer access to the media.

Professor Brown's views
The introduction of the federal Public Interest Disclosure (Whistleblower Protection) Bill by independent MP Andrew Wilkie is not before time. It is 18 years since a Senate select committee, chaired by Liberal senator Jocelyn Newman, recommended comprehensive legislation to protect employees who speak up about wrongdoing in government. And it is almost four years since the House of Representatives legal and constitutional committee, chaired by Labor's Mark Dreyfus QC, came down with a strong blueprint in that direction. The Wilkie bill is consistent with the spirit of all these recommendations - and then some. In fact, the background to the bill includes more than $1 million of taxpayer-funded research, involving more than 300 federal, state and local government agencies - the most comprehensive research of its kind in the world. It also reflects more than two decades of experience with what works, and what doesn't, across all Australian states and territories, in the US and in Britain..... Following recent reforms in the ACT, the bill gives more detailed guidance than equivalent media whistleblowing clauses in Queensland and Western Australia.

If a disclosure is reported internally, it is only if no action is taken and there remains clear evidence of wrongdoing, that a whistleblower is entitled to go public. Even then, whistleblowers may only reveal what is reasonably necessary to get the wrongdoing acted upon -- not blurt out whatever they like. And an extra public interest test applies, if the disclosure includes sensitive defence, intelligence or law enforcement information. This is information that could jeopardise an operation, or expose troops, police, informants or the public to harm. This is a broader safeguard than anything announced by the government, which has promised to give extra protection to intelligence information, but so far has said nothing about protecting defence or law enforcement operations..... Mr Wilkie's bill brings quality whistleblower protection a step closer -- something of which Australia should end up being proud."

Chris Merritt also in The Australian 2 November:
The Community and Public Sector Union, which represents about 60,000 public servants, has been lobbying for improved protection for disclosures by its members since 2008, soon after Labor promised a federal whistleblower law in the 2007 election campaign. "We were hoping to see legislation coming out of the parliamentary inquiry in 2010," said CPSU national secretary Nadine Flood. "In our view, it has taken too long to introduce legislation. "We would encourage the government to work with Mr Wilkie and others to ensure that legislation passes the parliament during this parliamentary term."

Allan Kessing
Mr Kessing said he welcomed Mr Wilkie's bill, "as it puts into prime position the public interest as the criterion."


  1. protects whistleblowers by allowing them to connect with anyone in an anonymous manner. So long as one knows the email address of the person to whom they want to transfer sensitive information, they can contact them via TT. The message content will be encrypted and stored on the TT server. A notification can be sent via email, but the sender will be The email will contain instructions on how to get the secure content. Users can choose their own pass key for the encryption process so that no one can decipher their messages. The pass key can be included in the email notification along with a message from the sender. Of course, the email is not encrypted, so nothing sensitive should be included in the notification. Even if the TT server is breached, nothing can be traced back to the WB.

  2. Private and secure messaging is useful in appropriate circumstances, so glad to hear of ThreadThat. But laws, policies, procedures, leadership and tone at the top are essential if individuals are to be encouraged to speak up about wrong-doing. Circumstances when going public is justified and protected should be clear. Leaker isn't always synonymous with whistleblower in this sense.