Whistleblower protection through the House, now all up to the Senate

Rob Oakeshott's concern earlier in the week that the Public Interest Disclosure Bill might disappear in the morass of the last weeks of parliament proved unfounded. Or his raising the subject may have had the right effect in ensuring it saw the light of day?

The House of Representatives passed the bill yesterday along with 73 late in the piece government amendments, some of which came from this recent Senate committee report, and just one of a number proposed by The Greens Adam Bandt. 

Mr Bandt's amendment will extend circumstances that allow for a protected external disclosure, for example to a journalist or a member of parliament, without prior internal attempts to bring the matter to attention where there is a substantial threat to the environment. 

Andrew Wilkie struck out on an argument put from the floor for changes close to his heart, including extension of protection for disclosures about parliamentarians or by those who work for them, and for "the careful disclosure of wrongdoing by intelligence officials."

The Attorney General Dreyfus emphasised:

A main purpose of the bill is to establish clear procedures for allegations of wrongdoing to be reported by public officials and for findings of wrongdoing to be rectified. The emphasis on the scheme is on the disclosure of wrongdoing being reported to and investigated within government... A well-implemented and comprehensive scheme should lead to a discloser having confidence in the system, and remove incentive for the discloser to make public information to parties outside government. Recourse for making disclosures outside government should be exercised with reserve when reported wrongdoing is not being properly investigated and rectified, and when other public interests will not be undermined

Despite some reservations about how the bill could have been improved further, there was

praise all round from speakers in the debate for the Attorney General and his work back in 2008-9 as chair of the Standing Committee on Legal and Constitutional Affairs that got things moving, and for forcing the issue over the line finally following his appointment earlier in the year. And for Professor AJ Brown of Griffith University (and TI Australia) and Tim Smith QC and Howard Whitton of the Accountability Roundtable for valuable inputs. 
(Update: AJ Brown highlights key elements on The Conversation.)

Whether the bill and a consequential amendments bill will make it to the top of the pile of around 200 bills on the Senate list is not known, so Mr Oakeshott (who didn't take part in the House debate) and others concerned over the six years of slow progress on this issue still have cause to be nervy for the next week or so.

What the Attorney General had to say about intelligence matters- no protections for the like of Mr Snowden here (or in the US) - and about the more significant government amendments follow.

Rear guard rumbles over whistleblower protection

Rob Oakeshott sounded the alarm in Parliament late last night that the mix of years of enthusiasm and prevarication may come to nought unless the whistleblower protection bill progresses in these last two weeks of sittings. 

Will he be heard? (Update-yes at least in the House.)

I rise tonight to talk about the Public Interest Disclosure Bill 2013 and trying to progress it over these final two weeks as a matter of priority and urgency. I am increasingly worried that we may not get there, for all the wrong reasons, such as senior executives within government potentially worrying that this is somehow an attack on them, is somehow going to encourage employees in the APS to run some sort of public sector revolution by leaking every single issue that they deal with, and in some way will lead to poorer government. On the contrary, the reason I rise tonight is to say that nothing could be further from the truth and to try and put in place some reminders about the first principles of the importance of whistleblowing reform for best practice within the public sector....

Oakeshott reiterated-if anyone was still wondering-the case for whistleblower protection, noting in addition, revelations in the US about PRISM:

That is of great concern and for that reason, as well as all the reasons of best standards within the public sector, we should not put ourselves in the position of just trusting government. We should invest in people as part of being government and by investing in people, through mechanisms like whistleblowing, we are doing the best that we can to minimise corruption and build a culture of a governance standard that taxpayers and Australian citizens quite rightly expect. My call tonight is to urge government to progress the public interest disclosure legislation. Do not let it lapse. This does matter. It is good practice. It sits well alongside existing reforms and it is a good opportunity to progress a long-lasting reform that really does matter.

Responsible journalism, "what's the problem?"

Richard Ackland in the Sydney Morning Herald writes of flaws in whistleblower protection and defamation laws, advocating recognition here of a "responsible journalism" defence of the kind accepted in the UK since the House of Lords 1999 decision in Reynolds v. Times Newspapers , and given a fillip in Flood ten years later, and more recently adopted by the courts in Canada. 

I agree, and with the point Ackland makes that instances of bad journalism hold back the cause. 

But so do the media bosses who quizzically repeated "what's the problem" during the recent furore over proposed media reforms, insisting that everything to do with media standards and the self regulatory system is working wonderfully well, thank you very much.

Leaving it to Professor Julian Disney Chairman of the Australian Press Council to volunteer "There is a whole stack—at least 50 or 60 that we know of—of statutory or non-statutory privileges for journalists or media organisations." 

Some would argue that these "privileges" are essential to enable the media to do its job, and there should be more, for example the "responsible journalism" protection, and better, for example shield laws. 

But they are privileges none the less and should see the bosses in the lead on commensurate responsibility, and in adopting and enforcing high standards. Even if they have managed to see off the government's ham fisted attempt to push them along in this direction.

There is plenty of responsible journalism but everything isn't rosy. As Professor Disney explained to a Senate committee but media bosses didn't, there are plenty of problems with the current self regulatory system. Others outside the tent might add to the professor's impressive list, including the adequacy of some standards particularly respect for privacy (and a lot of haziness and lack of guidance regarding the public interest). 
Professor Disney:
 
"There are substantial problems with media standards in Australia. A number of them we have in common with other countries. What I am going to say now is based on the experience of the complaints that we receive. We get about 600 now. The numbers increased by about 50 per cent over the last year or so, probably because our profile is so much higher than it was before, with our existence and our role being advertised in virtually all issues of every member publication...

The problems include distortion and suppression of key facts and opinions; confusion of fact and opinion; errors of fact, especially online due to excessive haste in posting material and inadequate corrections of those errors; invasion of privacy, particularly through the use of photographs taken from a distance. Some problems, of course, in any profession or industry, are inevitable. I do not think it should be a surprise that there are some. The level is higher than it should be and I think it is a significant problem that needs to be addressed.
  

Having said that, there is a substantial problem that needs to be addressed. I might say that it has an adverse impact, amongst other things, on freedom of expression. If people are to have freedom of expression, they need access to reliable information. If they are fed false information, then the views that they form and they might want to express will not be the views that they would form and express if they were well informed. Access to unreliable, distorted information is an attack on freedom of expression. 

 

Similarly, if they are unable to get their voice heard reasonably, because particular outlets have perhaps a general tendency to be more willing to publish views from one part of a perspective on a particular issue rather than another, that infringes on the freedom of expression of those people who do not come from the part that is going to be more generously covered. If they are given an occasional example to express their views but that is overwhelmed by a very extensive coverage of the other view, then again their freedom of expression suffers. Freedom of expression needs to be for all people, not just for those who are wealthy or for those who have special access to the most widely read media. Of course, it is a huge infringement on freedom of expression if people are intimidated by vitriol or by other forms of excessive abuse. That, again, even if it comes from active proponents of freedom of speech, it is in fact an attack on freedom of expression. So media standards, good media standards, are an essential element, for a number of reasons...

Quite a lot of progress has been made but we are still moving too slowly in our handling of complaints. We are suffering from sustained misrepresentation of our adjudications and other comments from some quarters, sometimes from proponents of freedom of speech, who are alleging quite forcefully that some of our adjudications have inhibited freedom of speech. By falsely presenting what we have said and implying that we have put inhibitions on freedom of speech, they themselves are inhibiting freedom of speech. We are still suffering from not a high enough level of cooperation from publishers in some areas and we need to keep working on that. We are making progress.
 
I want to finish with two important strengthenings that we need to achieve and then comment very briefly on the bill. The first strengthening is—as Mr Finkelstein asked of me at the inquiry, but at the time I said perhaps we should do it another way—we now definitely need to be able to institute our own investigations without waiting for a complaint. There are far too many instances...
 
I have seen some very bad abuses in the last few weeks where we have had no complaint and yet I know, in fact, the people were concerned about it but thought it would just make it worse if they complained."