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Thursday, January 30, 2014

Whisteblower law commences, to mostly silence, little applause

The Gazette of Law and Journalism (subscription) has published my article on the Commonwealth Public Interest Disclosure Act. 

The act came into force on 15 January 2014. 

To almost no acclaim, despite the fact it brings the Commonwealth public sector somewhat into line with all the states and territories, was first recommended by a parliamentary committee in 1994, and is seen by the experts (with various qualifications) to be a reasonably good shot at a scheme of this kind. 

Parliament passed the bill through the final stages in the last days of sittings prior to the September election, six years after Labor put in on their agenda. The Coalition supported the bill through both houses. Now in government, it has the task of implementing the law.

The Prime Minister is the responsible minister. On leave at the time, neither he nor then acting prime minister Warren Truss issued a media release regarding commencement of the scheme, or commented then or since. SBS was one of the few media outlets to mention it.(The Ombudsman issued a media release in June.)

This was a missed opportunity to set tone at the top by drawing to the attention of officials and the public the worthy objects of the act: to promote integrity in government by encouraging officials to make public interest disclosures, ensuring those who do so are supported and protected from adverse consequences, and that disclosures are properly investigated and dealt with.

The only reference to whistleblowers from Abbott government ministers to date concern the 'treacherous' Edward Snowden.
(By the by an Australian in similar circumstances wouldn't find any solace in this law as going public with any intelligence information or information about intelligence agencies is not a protected disclosure. Sections 70 and 79 (based on provisions of the Official Secrets Act 1911 (UK)) of the Commonwealth Crimes Act impose a duty to treat this type of information as secret, full stop. Four years ago the ALRC identified over 500 other secrecy provisions in the law book and recommended changes. No minister in any government since has said a word in response. Meanwhile those in Australia who work at the Guardian and the ABC who have accessed Snowden's documents can ponder what they would do if a Snowden showed up here with Australian material: s 79 as it stands provides for between two and seven years imprisonment for a person receiving information knowing or having reasonable ground to believe, at the time when he or she receives it, that our official secrets have been communicated to him or her without authorisation. I digress..)

The absence of high level, visible and forthright leadership on this integrity measure, in the current context - Snowden the 'traitor', the absence since assuming office of government statements about the importance of transparency and accountability, the closed shop regarding "border security," the uniform shift away from publication of incoming minister briefs, silence on the previous government's commitment to join the Open Government Partnership - will see public officials draw their own conclusions about the significance that should attach to it.

That's even before any attempt to come to grips with exceedingly complex legislation.

Guidance material concerning the PID act has been published by the Ombudsman.

But more guidance, awareness, training and evidence or scuttlebut that conveys the general impression over time to those gathered around the water cooler that the scheme works will be needed to counter the view that many of the public spirited who have trod this path in the past have done so with career ending consequences.

In the article I work through the definitions of "disclosable conduct" and "protected disclosure" to illustrate that any public official inclined to seek the protections will need to tiptoe carefully through a minefield, where missteps and mistakes could prove costly. 

You might like to test your own level of understanding of the definitions in Part A Division 2 of the act.

There are lots of questions that arise about what constitutes disclosable conduct. One, the scope of “an abuse of public trust.” The term is not further defined in the Act or the published guidance so far and could prove to be a lawyer’s picnic, given the notion that something akin to a trustee describes the relationship between the government and the people in a democratic society.

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