G20 and countries including Australia need to re-open the whistleblower protection file

This survey of Whistleblower Protection Rules in G20 countries (pdf) notes that the group declared in 2010 that they would have adequate measures in place by 2012 to protect whistleblowers and provide them with safe, reliable avenues to report fraud, corruption and other wrongdoing. 

The report acknowledges some advances but concludes the G 20 countries have fallen short of meeting the commitment. In many, "whistleblower protection laws fail to meet international standards, and fall significantly short of best practices." One of the authors, Professor AJ Brown told The World Today.

It's very much a job that is less than half done in terms of protecting the whistleblowers in the public sector and it's a job that's less than a third done when it comes to protecting whistleblowers in the private sector ..

Australia does reasonably well on public sector rules, with room for improvement, but is way short of the mark when it comes to the private sector.

The adequacy of protections requires attention because of costs to the economy and other reasons:

Serious wrongdoing can lead to wasted taxpayer money, unsafe consumer products, public health threats, financial instability and environmental damage. Lacking strong legal protections, government and corporate employees who report wrongdoing to their managers or to regulators can face dismissal, harassment and other forms of retribution. With employees deterred from coming forward, government and corporate misconduct can be perpetuated

As Transparency International points out, collective and individual country initiative and ambition is required if the G20 is serious about anti corruption measures.

Should Australia, as G 20 President this year chose to lead from the front, a senate committee, almost on cue, has recommended a number of steps to improve private sector whistleblower protections.

The recommendations include a review of the adequacy of Australia's current framework for protecting corporate whistleblowers, expansion of the definition of whistleblower and the scope of information that can attract protection, establishment of a special whistleblower office within the corporate regulator, and closer alignment between public and private sector protections.

Also that the government explore options for reward based incentives for corporate whistleblowers including qui tam arrangements that would enable someone who assists a prosecution to be eligible to receive all or part of any penalty imposed.

The senate committee also made recommendations (Chapter 22) on the need for greater transparency at the corporate regulator ASIC for a number of reasons including to counter perceptions that is captured by big business.  ASIC should publish more of its internal policies and keep the business and academic worlds better informed about developments and trends  by providing and disseminating information it receives from a range of sources, as well as ASIC's analysis of this information.

The G20 survey comments about Australia include:

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.

Slow time for Open and Shut but not for Allan Kessing

I'm in the middle of moving house, with a brief overseas visit to follow so thin pickings here through to the end of November. No sympathy sought or needed of course.

And any discombobulation at the sight of those packing cases not worth mentioning in the same breath as Allan Kessing, regrouping after the devastating loss of his home in the bushfires a few weeks back. Friends and supporters of Allan (email me at timminsp@ozemail.com.au for details of how you can contribute) have helped put a slight spring in his step but he still has plenty of 'why' moments.

Allan Kessing update

Allan tells me that generous people continue to deposit money in his account, all helping to move him from prone to somewhere closer to upright. If you can and would like to help please email me at timminsp@ozemail.com.au or phone 02 83569622 for details of how to go about this.

Linda Mottram on 702 ABC Sydney Mornings is broadcasting from his neck of the woods tomorrow Wednesday from 8.30am until 11am-if near a radio or online you might hear Allan's story. 

Spot the buck-Allan is not the only one now poking around. But ever hopeful:

Not exactly pluvial but at least, kinda-sorta, real rain this evening though even that is diminishing as I write. Better than nothing which is what we've had here for the last 3 months. I keep ...err, make that kept a weather journal for the past 20yrs and had only checked it on the morning of that dire day to see when the last real soaking had occurred. Here's hoping I see Noah getting out his tools in the morning. Thanks for everything,

Allan Kessing stunned and grateful

Thank you to those who in words and deeds reminded Allan Kessing this week he has friends and supporters even if he hasn't met most. Pledges of well over $3k were made this week and indications are it will go higher. If you are in a position to provide financial assistance please email me at timminsp@ozemail.com or telephone 02 83569622 and I can tell you how best to go about this.
 From Allan's email a few days ago:

I am stunned at such a response but feel uncomfortable about accepting such amounts from individuals whom I don't even know...I was on site this morning at Dawn and there was a brief flurry of "silly" rain. The 5 day old embers are still hot enough that when the drops hit the ash it sends up plumes like mini volcanoes. Already the birds have returned and are enjoying the feast of the various seed stores that I had in old metal garbage bins on a pallet. Because it had burnt beneath them they'd mostly tipped over so they think it is a Cornucopia. The strangest things remain unburned, some plants are parched but a metre on either side is black. I retrieved from one pile of ash a lustre ware bowl, delicate at the best of times, unharmed. Truly a strange experience seeing how the land I've known for 30 yrs looks beneath its green clothing.

"The truly bizarre thing is that by next morning there were fresh roo droppings on the inexplicably unburnt areas of lawn, surrounded by charcoal. Perhaps they have a taste for cooked food?"  

Allan Kessing's plight strikes a chord

Thank you to those who have contacted me over the last few days by phone and email - a selection below - offering help to Allan Kessing who lost his home last week in the bushfires.  

If you also are in a position to assist, please email me on timminsp@ozemail.com.au or phone 02 83569622. As I  told those who have been in touch, I'm waiting to hear further from Allan about how best to give effect to the generous offers. Thanks again.

Allan Kessing shattered - by bushfires this time

I've followed the misfortunes of Allan Kessing since kicking off here seven years ago. But was shattered by this report from his brother in Crikey, following yesterday's bushfires near Sydney:

"Allan has a block of land at Mount Victoria in the Blue Mountains, west of Sydney, he was up there by himself yesterday, trying to protect his house from the fires coming from the Lithgow area. He told me it was quite eerie up there before the fires hit. Then I got a message around 5pm saying everything was gone, there had been a sudden wind change and fires had broken out around Mount York Rd, Mount Victoria. He tried to fight it with his water pump, generator, hose and sprinkler system but the speed and ferocity of the firestorm was overwhelming. When the Rural Fire Service volunteers arrived they told him he must have a had a close escape, half his beard was burnt off and he didn't realise. Allan is completely devastated by the loss of the property and his extensive, lifelong book collection. Allan has only recently completed the construction of the house. He has poured his life savings into what was meant to be his mountain refuge from the pressures of his 'whistleblower' conviction. This brave Australian deserves better than this."

You can say that again and again. I've tried to contact him this afternoon, and, dear reader, put you on notice of a call for help for this learned champion of honesty and integrity.

Allan deserves praise and thanks for his effort to highlight failings within Customs and the security problems at Sydney Airport in 2005, recounted here. I believe him when he says he is not guilty of the offence, despite a conviction, of leaking a report to journalists at The Australian, but that he had spoken to his local MP Anthony Albanese, in Opposition at the time. Having made a fuss prior to the 2007 election about Allan's treatment during the Howard era, the ALP left government in September 2013 having done nothing to address the injustices foisted upon him.

Allan, wherever you are, be assured many are thinking of you and ready to lend a hand in response to this disaster.

On a personal note I have a daughter who with her family at Springwood have cleared out twice in two days as the fires neared, but are safe and not otherwise affected. Commiserations to all impacted by the fires.

Update: Allan responded, philosophically, to my message on Friday night:

Thanks for your thoughts, I'm OK just a bit pissed off at being broke again (uninsured!!) but, as the old chinese proverb sez, "now that my store house has burnt down, my view of the scenery is no longer obscured"...The amazing thing.. is that though the new house is gone, all my sheds, the garage which I put up in 2006 was unscathed, even though it was only a couple metres from conflagration, standing like Gibraltar amid a sea of grey ash and smouldering coals & embers. So at least I still have something to live in.. all in all, I'm luckier than most.. thanks for thinking of me."

I have asked him to put aside any uncomfortable feelings to tell me where I can send some money. If you feel moved by his situation, and would like to do likewise please contact me by email timminsp@ozemail.com.au or by phone 02 83569622.

Further update.

Big day in Canberra for whistleblower protection as well

Apart from all that drama at the highest level, yesterday saw the Senate pass the Public Interest Disclosure Bill 2013 without amendment, despite moves by The Greens and Senator Xenophon to improve the bill passed by the House. 

One of those amendments would have opened the way to address in a small way the injustice done to Allan Kessing. In speaking to the amendment Senator Milne drew attention to the continuing silence from Minister Albanese soon to be Deputy Prime Minister in the second Rudd era on the contact between his office and Kessing before material found its way into The Australian:

Our amendment is for the minister to have broad, non-compellable power to make payments to those who expose wrongdoing. Jurisdictions providing whistleblowers with a cut of any recouped public money has been very successful as both an integrity and a public review measure. This clause would simply allow an act of grace payment in these circumstances or where there is a public interest in doing so.

The example I want to give here is following home affairs minister Jason Clare's refusal to grant a pardon to Allan Kessing. The Special Minister of State could make a payment in recognition of his contribution to public safety and his $70,000 of legal expenses. I still believe a major injustice was done to Allan Kessing, who blew the whistle on security concerns at Sydney airport. It cost him $70,000 in legal fees and he has a criminal conviction. He applied for a pardon for that criminal conviction because it was shown that his issues were not vexatious. What he stood up and said occurred was actually shown to be so.

I have said in the Senate before and I say again today: there should be an explanation from Minister Anthony Albanese, but it has not eventuated. Mr Kessing has always maintained that he did not publicly release the material that resulted in his criminal conviction. He went to his local member for Grayndler with that information, then somehow it made it into the Australian. The ALP used Mr Kessing in their 2007 election campaign to hammer the Howard government's treatment of him. Then they tossed him away, effectively, after he served their purpose and refused him a pardon. I find that disgraceful. To this day I say that Allan Kessing ought to be given a pardon. The amendment the Greens are putting forward would allow not just for him to receive a payment but for the minister to have an act of grace capacity to make payment to anyone who does blow the whistle in the future and is subsequently financially disadvantaged.

As noted in the debate, the bill has shortcomings but six years on from a Labor commitment to act, it has done so, thanks in large part to Attorney General Dreyfus. Back then addressing the Kessing injustice was a priority as well, but alas...

Whistleblower legislation: the what, who and when you can go public- in a fashion.

The Government will need votes from the independents to get whistleblower legislation

Mark Dreyfus

through the parliament, and one at least, Andrew Wilkie, speaks with authority when it comes to the subject. 

So differences between the Dreyfus bill of last week and the Wilkie bill introduced into Parliament last year and other best practice standards adopted in Queensland and the ACT, foreshadow further debate both on on big picture issues and fine points of detail. The Attorney General left the door open, in contrast to last week's media reform "take or leave it" debacle: 

"Given the complex nature of the issue I also consider that consultation should continue on the content and structure of the bill. If it becomes clear that the whistleblower scheme would benefit from legislative amendment I will be happy to bring them forward if this bill progresses."

Like most of you I'm waiting for the definitive analysis from Professor A.J Brown.
( Update 26 March: "Serious problems” that must be fixed, according to a report on Crikey (paywall) “Currently, I wouldn’t be supporting the bill,” Brown, who is also a director of Transparency International Australia, told Crikey. “There are too many things wrong with it in its current form to achieve its intended objectives. Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield. .It means public servants who blow the whistle on wrongdoing by politicians, including concerns about corruption or bribery, would not be protected. .... Brown’s second major concern is the sweeping exemption for disclosures about intelligence agencies.")

In the meantime a quick look at the big three: what is covered, who is covered and in what circumstances a person can disclose information to an outsider and still be protected.

What is covered
The Dreyfus bill is likely to get close to a tick for the broad range of matters covered by the definition of disclosable conduct. It goes far beyond the standard corrupt conduct, serious maladministration and serious or substantial waste of public money, to include a range of other conduct notably conduct that is "an abuse of public trust", that "unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons", or "results in, or increases, a risk of danger to the environment."

Who is covered
The Dreyfus bill includes a lengthy definition of "public official" that extends to a person employed by a contractor, and under Clause 70, to an individual that an authorised officer determines can be taken to be a public official. 

Whether this is good enough for Wilkie remains to be seen. 

His bill specifically included in the definition senators, members of the House of Representatives and persons employed under the Members of Parliament (Staff) Act 1984. 

The parliamentary committee that Mark Dreyfus chaired in 2009 recommended ministerial and other staff employed under the MoPS act should be covered. The government responded in 2010 : The Bill  "will not authorise employees under the Members of Parliament (Staff) Act 1984 to make disclosures under the scheme. Disclosures will not be able to be made under the scheme about Members of Parliament. Allegations of wrongdoing by Members of Parliament should be addressed by the Parliament.Similarly, disclosures will not be able to be made under the scheme about Members of Parliament (Staff) Act 1984 employees."

External disclosures
Both bills set out circumstances where disclosure outside the system can qualify as a protected disclosure. Dreyfus is broader generally than Wilkie, the former opening up disclosure to any third person other than a foreign government official, the latter limited to disclosure to a journalist. 
(Update: Better wisdom. A.J Brown tells me "Wilkie is broader than Dreyfus on external disclosure -- not narrower... Wilkie makes it explicit that any person includes journalists, but still extends to any person than foreign public official.  Dreyfus is just not explicit on that, and much narrower in terms of other restrictions on when people can go public.")


And there are other differences. 

 For example, the Wilkie bill alone protects disclosure to a journalist without prior internal notification if a public official honestly believes on reasonable grounds that:

  (a)  the public official has information that tends to show disclosable conduct; and

  (b)  there is a significant risk of detrimental action or victimisation to the public official or someone else if a disclosure is made to a person mentioned in section 17; and

   (c)  it would be unreasonable in all the circumstances for the public official to make a disclosure to a person mentioned in section 17.

On a separate issue, the Dreyfus bill alone limits the information that can be disclosed in this way to where disclosure on balance, is not contrary to the public interest. That's quite a tightrope for any public official to walk. What if disclosure would reveal major corruption - say the bribing of officials here or overseas - but would reveal information that (under the FOI act) is the subject of an absolute exemption on grounds disclosure would be contrary to the public interest as a cabinet document, or information that arguably could damage international relations? Disclose that at your own peril by the sound of it.

An exception to this public interest test applies where the information reveals substantial and imminent (another high hurdle) danger to the health or safety of one or more persons.

A companion piece while this is on the table should be a government response to the ALRC
Report 112 Secrecy laws and open Government in Australia that has had no attention as far as those on the outside can fathom since it was tabled in March 2010. The draconian s 70 of the Crimes Act that criminalises unauthorised disclosure certainly fails Wilkie's "Kessing test."

Some extracts from the bills on these key issues follow.

Whistleblower legislation emerges after three year hiatus

Amid the tumultuous events of the week Attorney General Mark Dreyfus introduced the Public Interest Disclosures Bill 2013 placing it squarely in the context of the government's commitment "to building and maintaining a culture of transparency."

"An open and transparent government is a key feature of a healthy democracy" the Attorney General said, and we all agree with that. 

Of course it has taken years to get to this point, enough time for Dreyfus himself to go from committee chair to the big chair.

Haven't had a chance to look yet at what might have changed since the last time-three years ago-that a government responded to the Dreyfus Committee report by accepting some but not all its recommendations. And indicating at the time it would go a tad further than the committee recommended.

(Update: Chris Merritt in The Australian reports (paywall) it fails Andrew Wilkie's "Kessing test"
 Whistleblower bill risks new fight;
Wilkie was right:whistleblower bill comes up short)

Allan Kessing deserves more than a medal

The revelations this week about Customs won't give solace or much comfort to Allan Kessing, even of the cold kind. But they vindicate his warnings in reports written 10 years ago that were ignored by authorities and perhaps provide just a little satisfaction.

From the report of his media conference with Senator Nick Xenophon today:

Mr Kessing said in April 2005 he approached Anthony Albanese, the then-opposition transport spokesman, and briefed one of his staffers about his concerns surrounding the reports, before meeting personally with Mr Albanese. Information contained in Mr Kessing's reports appeared in The Australian newspaper a few months later. Mr Kessing claims he then was the subject of a witch hunt. His home and that of his recently deceased mother were raided in 2005, and the Australian Federal Police spent $250,000 tapping his phones and putting him under surveillance, he said. In 2007 Mr Kessing was convicted for breaching Section 70 of the crimes act, but denies he supplied The Australian with the report. Mr Xenophon said in the wake of this week's revelations about alleged corruption and criminal activity at Sydney Airport, Mr Kessing should be pardoned and his two reports publicly released."The scandal is that this man who deserves a medal for the work he did 10 years ago was actually persecuted through the courts, had his life effectively ruined," Mr Xenophon said.

Have the best Christmas you can, Allan.

And the same to former Customs bosses, Mr Albanese and current and former staffers, ALP leaders who made much of the injustice to Kessing before the 2007 election propelled them into government, and Minister Jason Clare and those that drafted for him the refusal of the Kessing pardon application.

When the government gets around to legislating for comprehensive whistle-blower protection after five years of promise, let's call it The Kessing Act.

Whistleblowing not for the faint-hearted.

One of the developments that influenced the decision to establish a Royal Commission into child abuse was the decision by Inspector Peter Fox of NSW Police to speak up and out  last week about a cover-up in the Hunter Valley of NSW. Dr Suelette Dreyfus of the University of Melbourne writing on Global Mail picked up on his remark that this decision marked the end of his police career- culture in the police force is such that someone like him would never be let back into the fold. Dr Dreyfus lists the five phases of whistleblowing, all familiar and distressing reminders of what happens to those who like Fox take a stand on what happens within, and comments about the failure of the Commonwealth government to enact comprehensive whistleblower protection legislation. NSW has had legislation that covers public servants including NSW police officers since 1994. Global Mail has published my comment that the fact Inspector Fox, in talking to a journalist about a cover up or derailed investigation, exhibited no confidence in the protections comes as no surprise. But it is a sad reflection on the state of the law, attitudes tolerated in the police service, and the way the law is implemented.

No justice for Allan Kessing

Bloodless was the word that came to mind for Allan Kessing after reading Minister for Justice Jason Clare's letter refusing his pardon application.You can see why when you read this summary in The Australian and the analysis in Chris Merritt's article
and this commentary today. 

For the minister to sign off on this - in effect with sayonara, goodbye, farewell to Kessing-is pathetic. Coincidentally (?) as another minister rejects Andrew Wilkie's whistleblower protection bill as not properly balanced, but has nothing ready to put on the table five years after the 2007 election when the appalling treatment of Kessing and the lack of protection generally for whistleblowers were such big deals to Labor. 

Kessing didn't but someone did pass the report to journalists at The Australian-and brought to public attention the scandalous state of security at Sydney Airport. There were many  areas of concern regarding the evidence and the conduct of the case. Kessing admitted subsequently he had talked and shown a copy of the report to then Opposition MP now government minister Albanese and his staff.

Mr Clare's letter to Mr Kessing says the involvement of Mr Albanese's office, if proved, would not establish Mr Kessing's innocence. But because he did not reveal the link with Mr Albanese at his trial Mr Clare had been advised that "as a matter of public policy, it is not appropriate for the royal prerogative of mercy to be exercised to pardon a person who seeks to raise a doubt about his or her conviction by raising matters that were deliberately not raised, and tested, by them at trial".
Mr Kessing's assertion that he was innocent of the charge of which he had been convicted meant "the claim that the leaking of the reports was in the public interest is irrelevant to a consideration of your moral or technical innocence of the offence".

No minister has said a word in the 30 months since the government received the Australian Law Reform Commission report that recommended the repeal of the draconian s 70 of the Crimes Act that renders the public interest irrelevant to disclosure of information without authorisation.

Amazingly Allan Kessing still smells the wattle and sleeps through the night. You have to wonder how others manage.

Whistleblower protection still over the horizon

Itsmine

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:

CPSU

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."

ACT whistleblower protections, new best practice standard

The ACT Assembly passed the Public Interest Disclosure Bill 2012 yesterday, to acclaim from the leading expert on such things, Professor A.J. Brown of Griffith University, writing in The Canberra Times:

It is historic legislation, improving on recent reforms in Queensland and NSW, and providing the country's clearest regime for ensuring public agencies listen to their people, take action to protect them, and ''ensure just outcomes … including by preventing and remedying the effect of detrimental action''. It also extends the circumstances where, if systems are not in place to deal with wrongdoing raised via official channels, insiders can go to the media.  So far, in NSW and Queensland, the newer legislation covers whistleblowers who go to the media as a last resort. This, too, is included in the ACT bill, with some helpful new safeguards and thresholds to guide whistleblowers and agencies on when this is acceptable. But as well, the ACT act is the first to make explicit what many Australians expect - that when it comes to serious public interest matters, if there is really no safe official channel available, we would prefer that a whistleblower go public than stay silent. The act provides that if a public servant can't reasonably use any official channels without ''significant risk'' of reprisal, they will still be protected if they go straight to the media.

Highlighting also inaction, and the way forward, for those just over the lake:

The big question for Canberra residents - especially if you are a federal public servant - is when the Commonwealth government is finally going to follow. Every day, it becomes more obvious why effective federal whistleblowing rules are needed..... The newer legislation, especially the ACT act, can help provide solutions to the federal government on how to catch up with other governments, and put in place stronger systems for acting on such information. It is also not enough just for authorities to listen - they have to protect and support those who speak up. A key issue for the ACT remains more effective, low-cost avenues for ensuring that mistreated whistleblowers are properly compensated, and able to get on with their lives and careers - but this is also something only the Commonwealth can help solve, under the Fair Work Act. After two years of inaction, the federal government has everything it needs to forge the solutions needed to deliver on its commitments. It will be another historic day - and another government with rare historic vision - which finally sees federal whistleblower protection rules come to pass.

Treatment of Allan Kessing a low marker for our grand claims

Senator Nick Xenophon in Parliament last week speaking in support of the Aviation Transport Security Amendment (Screening) Bill 2012, noted the earlier statement by the minister on the bill's significance:

This will ensure that Australian travellers are afforded the highest level of protection against aviation terrorism, bringing Australia into line with countries such as the United States of America, Canada, the United Kingdom and the Netherlands. 

But then queried what sort of message is sent by the treatment of Allan Kessing:

We need to encourage and protect whistleblowers who work within Customs and our airports to come forward. Unless we do that, we will not get the full picture. We can only know all the necessary details—all the loopholes and clauses and ins and outs—if we listen to the people on the ground. But these people will never speak out as long as their jobs and futures are in danger, because they will look to what happened to Allan Kessing. They will look at the shameful and disgusting way he was treated by the system.There are great opportunities for us if we care to take them, if we encourage and support those whistleblowers to come forward. We might have to shift our thinking a bit to try new things and come up with new ideas, but the outcomes will be better for us all if we encourage those whistle blowers to come forward.....

This bill and the technology it introduces is an important step in improving our airport security but it is only part of the process. We need to heed what occurred to Mr Kessing. We need to heed his report and the Wheeler review and the fact that it appears those recommendations have not been carried out fully. Just because this is a big and visible step does not mean it is the only one we should take. It is important to be seen to be taking action, but sometimes the small things are the details which can have the biggest impact. The fact that there seem to be some serious problems with airport security cards is a real worry.

I encourage the government to continue its reforms but also call on them to conduct greater consultation with people who work in the industry, to encourage whistleblowers to come forward and to heed the information on the ground, which can be the most valuable in deterring terrorists. If the government wants to be true to its word and true to its 2007 election manifesto, about looking out for Mr Kessing in particular, they can start by giving him a full and absolute pardon for his reports back in 2002 and 2003 and to overturn what many regard as a wrongful conviction.

Successive attorneys general have said nothing publicly about the Kessing pardon application lodged in 2009.

The last mention in Parliament of whistleblower legislation by a minister was in March this year when Minister Gary Gray introduced amendments of little consequence to the Public Service Act. (Update-that bill limped into the Senate on 22 August). The Government response to the 2009 Dreyfus Committee report was tabled in Parliament in March 2010 and was full of promise. 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.." But no action since.

While injustice to Kessing and this gap in the law exist Australian taxpayers shouldn't be reassured by grandiose claims about the wonders of aviation security, the strength of anti-corruption measures or anything else where insiders know, bosses and the rest of us don't, and speaking up guarantees professional suicide.

ACT Assembly moving on whistleblower reform, FOI changes still to come

The Canberra Times report on the introduction of the Public Interest Disclosure Bill in the local assembly yesterday includes a tick from Professor A.J Brown-always a good sign - who like many is still hopeful despite missed deadlines that the Federal government will come good finally after promised deadlines for action last year came and went.

A Sydney Morning Herald editorial earlier in the week, Raising our voices for openness noted the dithering  in Canberra, on the big hill at least, while pointing to evidence that a public mindshift is underway with four in five Australians now believing whistleblowers should be free to reveal wrongdoing and to take concerns to the media, without fear of workplace retribution.

(Update:See ACT Hansard and and the exposure draft in March.)
 

I notice that while I was away in March the ACT Assembly resumed debate on the Freedom of Information Amendment Bill.

Allan Kessing on display

By Yiyang Liu-with permission.

Allan Kessing has plenty to be disappointed about, but not this outstanding piece. He and the artist Yiyang Liu are philosophical that it didn't make it into the Archibald Prize this year or even the Salon des Refuses. Currently on display at Sydney's Tap Gallery, next step is a crack at the Moran Portraiture Prize.

Of course Kessing has plenty of experience with raw deals-charged and convicted under a draconian law that in this form should have been erased from the statute book years ago; disclosures after the event of information that should have been made available to his lawyer during the trial and appeal, and if made available would have materially affected the way the case was handled; years of maintaining his innocence of the offence as charged, but an admission after his conviction that he did pass on information to the office of a then opposition parliamentarian, now a government minister, about a report on the parlous state of security at Sydney Airport that had languished in his boss' in-tray for two years ; continued silence from some who know the full story of the disclosure to journalists at The Australian that led to his conviction, and incidentally, to urgent attention to the security issues identified, to the tune of $200 million; and with some reluctance, to apply for a pardon in 2009 and to have the issues raised publicly by Senator Xenophon in 2010 and listed in the incoming brief for the attorney general that year as a "Hot Topic", to be left wondering as it disappeared from sight ever since.

Kessing told me some time ago he is past caring, "happy" to smell the wattle instead. The rest of us need to do both.

Nothing can right the wrongs, but it would help if Attorney General Roxon called for the file, and asked questions about the Kessing case. Here is a reminder what the ALP was saying about the importance of whistleblower protection and Kessing-in 2007! Come to think of it Special Minister of State Gray who appears to be struggling on the corporate memory front should be interested in that as well.

A win in the Moran for Yiyang Liu who accurately portrays Kessing as a proud, courageous man would be icing on a bittersweet pardon cake.

 Best wishes.

History of commitment to whistleblower protection airbrushed?

Special Minister of State Gary Gray made the following reference to public sector whistleblower protection in his second reading speech in March in introducing the Public Service Amendment Bill 2012:

Whistleblower reports
The act currently provides protection for whistleblowers in the APS. The regulations provide the framework under which whistleblower reports are handled.The bill makes two small amendments to the scheme. It provides a specific regulation-making power and allows for matters to be excluded from inquiry, including those that relate to an employee's own employment. Such complaints are better directed to the existing review of action scheme.

There has been no further debate.

The minister can buy an argument with the first proposition.

What is proposed are changes to processes associated with a whistleblower who reports a breach of the APS Code of Conduct. There are more than two proposed changes but the minister's reference to "small changes" was well chosen. "Comprehensive" or "far-reaching" would not have come to mind- see below for relevant extracts from the Explanatory Memorandum.

Of course major inadequacies in the Public Service Act protections, including the absence of any protection for public disclosures, were the reasons why much time and energy was spent since 2008 examining comprehensive whistleblower protection legislation

Minister Gray's four sentences air-brush the following history:

• 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 reasonably 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."

In March 2012 "two small amendments" proposed to the existing scheme, and nothing since.

What gives???

  
Explanatory Memorandum  

Tough times for whisleblowers

So what's new...

The session on whistleblowers at the National Freedom of Information Day Conference in Washington last Friday was hardly encouraging for those brave enough to contemplate taking a stand on wrong-doing, as summarised here by Nikki Troika of the First Amendment Center. Lucy Dalglish of the Reporters Committee on Freedom of the Press told the conference the post WikiLeaks situation seems to be there is no judgment call within government on the nature of information disclosed to the media or publicly in cases labeled as involving national-security issues. The government’s attitude, she said, has been to try to track and punish any such disclosures.

Outside the conference the talk here is that it is hard to see Assange being charged with anything unless conspiracy with the leaker or leakers can be shown-always a high hurdle.