Where's Wilkie?

I know policy and the legislative business of the government and parliament are far from minds in Canberra at the moment, but this is a lament about the disappearance and missed deadlines for promised Federal whistleblower protection legislation. And the related issue of government silence on an Australian Law Reform Commission Report that it has had since the end of 2009 on Australia's 500+ secrecy laws. A crucial whistleblower related ALRC recommendation was for the repeal of the draconian section 70 of the Crimes Act which makes it an offence punishable by up to two years jail to disclose information without authorisation, to be replaced by a provision that links any criminal offence to an intentional or reckless disclosure that harms a specified public interest.

Has Attorney General Roxon got to the bottom of the red box yet to find these issues sitting alongside papers about the conviction of Allan Kessing and the pardon application under consideration since October 2009?

Andrew Wilkie MP sounded like someone who would surely hold a few feet to the fire on issues such as these, and he did put whistleblower protection in as part of the queen-maker deal after the August 2010 election. But publicly at least it's been silence since as deadlines passed. I couldn't find any reference to whistleblower protection on his website but the site does remind how he first came to national prominence: 

"his decision to resign from the Office of National Assessments (ONA) on 11 March 2003 in protest over the Iraq war. He was the only serving intelligence official in Australia, the UK and US to resign publicly before the invasion." 

Wilkie may now not be as influential as he was in 2010. And perhaps WikiLeaks/Julian Assange has effected more influence (in a cautionary sense) on the government  than he, without even trying. The government and parliament have been busy, busy, busy of course-266 bills passed and all that. The odds on a new order of things after Monday are not great I'm afraid unless Wilkie and others like minded make it an issue.

A recap on the timeline for whistleblower reform and some relevant information and statistics drawn from the State of the Service Report published last year:

• ALP commitment to act prior to 2007 election.
• House of Representatives Standing Committee on Legal and Constitutional Affairs asked to examine models in 2008 and reported in 2009.
• Government responded in March 2010 to the recommendations in a reasonably positive manner and goes a bit further than the committee in some respects, to the sound of some hands clapping. 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 deal 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 only recent reference in the time since was in 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 expand the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011.

Special Minister of State Gary Gray managed this Op-ed in The Canberra Times at around the same time without even mentioning legislative reform.

Here we are, nudging March 2012 and nothing to show for promises that go back five years. Meanwhile back in the public service..

State of the Service

There is of course an existing scheme under s 16 of the Public Service Act for reports of breaches of  the Code of Conduct made by an APS employee to an authorised person. Regulation 2.4 of the Public Service Regulations requires agencies to develop procedures for dealing with such reports. The State of Service Report  2010-2011notes that all agencies had agency-wide whistleblowing procedures in place this year.

This year, agencies were asked to provide details on whistleblowing reports lodged and finalised during 2010–11. Seventy-six reports were lodged with agency heads or authorised representatives and 52 inquiries into whistleblowing reports were finalised in 2010–11. Of those finalised, only 10% concluded that an investigation into the alleged misconduct should begin. Table 3.5 shows the subject matter of whistleblowing reports lodged this year. The most common allegations concerned harassment and/or bullying (23%), improper use of position or status (16%) and fraud other than theft (14%).

Table 3.5: Whistleblowing reports lodged within agencies, 2010–11

Source: Agency survey
Subject matter	Reports lodged (no.)
Harassment and/or bullying	18
Improper use of position or status (e.g. abuse of power, exceeding delegations)	12
Fraud other than theft (e.g. identity fraud)	11
Improper use of resources other than internet/email (e.g. vehicles)	8
Inappropriate behaviour (other than harassment or bullying) of employees during working hours (e.g. dishonest or unprofessional behaviour to other employees, clients or stakeholders)	6
Conflict of interest	6
Improper use of internet/email	4
Theft	4
Improper access to personal information (e.g. browsing)	3
Private behaviour of employees (e.g. at social functions outside working hours)	3
Misuse of drugs or alcohol

The SOS report also reveals that leaks involving 24 employees were investigated in the period (19 in the previous year) and in 71% (42%) of cases a breach of the APS the Code of Conduct was found. How many ended up with the

The proportion of investigations undertaken as a result of a whistleblowing report remained low this year, comprising 1% of all investigations.