Protection for Whistleblowers: More or Less?

In recent months, vexed and difficult questions have arisen on the role of whistleblowers and the extent to which such a role is required and should be protected in a democratic legal system. As Julian Burnside says in a Guardian article relating to the case of  Freya Newman, the part-time Librarian who revealed the undisclosed scholarship awarded to the Prime Ministers daughter by a prestigious design school :

Indeed the balance between legitimate privacy and uncovering corruption or the potential for it, is difficult, as is the question of making it possible for those who know about it to come forward.

Following is a brief overview of what the relevant laws are and some of the key issues and criticisms around them.

Relevant Legislation

Australian state jurisdictions have had specific legislation allowing for the investigation of allegations of wrongdoing in the public sector for quite a while. Generally, these laws provide protections for current or former public officials who make "qualifying public interest disclosures" under the scheme.  In other words, all jurisdictions have established a system that allows public service related "whistleblowing" and provides for some form of legal protection against reprisals for those who blow the whistle on the wrongdoing.

The last jurisdiction to enact such legislation was in fact the Federal government when it passed the Public Interest Disclosure Act 2013 (No. 133 of 2013) (the Federal Act) which commenced operation on 15 January 2015.

Under the Federal Act, public officials who report wrongdoing within Commonwealth public sector agencies are guaranteed anonymity, and immunity from liability and disciplinary action. It should be noted the laws do not cover politicians or the Australian Security Intelligence Organisation (ASIO).

In general terms, the object/purpose of the relevant state laws is primarily to promote the public interest by the provision of ways for people to make public interest disclosures while ensuring that people who make public interest disclosures are protected and treated respectfully. Also they ensure public interest disclosures are properly investigated and dealt with while also giving appropriate consideration to the interests of people who make public interest disclosures and the people who are the subject of the disclosures.

The relevant enactments in each state jurisdiction are:

• New South Wales: Protected Disclosures Act 1994 (No 92 of 1994)
• Victoria: Whistleblowers Protection Act 2001 (No 36 of 2000)
• Queensland: Whistleblowers Protection Act 1994 (No 68 of 1994)
• South Australia: Whistleblowers Protection Act 1993 (No 21 of 1993)
• Western Australia: Public Interest Disclosures Act 2003 (No 29 of 2003)
• Tasmania: Public Interest Disclosures Act 2002 (No 16 of 2002)
• Australian Capital Territory: Public Interest Disclosures Act 1994 (No 43 of 2012)
• Northern Territory: Public Interest Disclosures Act 2008 (No 38 of 2008)

Criticisms of the Existing Laws

When the Federal laws were commenced, the group Whistleblowers Australia was reported by SBS News as saying that the laws did not enlarge or extend the existing state laws and protections, with the role of the investigator and that of protector being rolled into the one body, namely, the Ombudsman.

Another key criticism raised was that increasingly whistleblowers are not coming from the public service. They are coming from "all walks of life", a very recent example of this being the case of Freya Newman, the whistleblower behind the revelation of Prime Minister Abbott's daughter's scholarship.

The Federal Act has also been criticised for not going far enough - in the SBS News report, the Chair of  Transparency Australia, Professor AJ Brown, who was reported as having advised on the Federal Act, is reported to have conceded that there are:

An interesting observation at the time now made even more relevant by the current government's security enactments particularly in relation to section 35P, which would insert a new disclosure offence into the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act) making it even harder to disclose matters involving issues deemed to relate to national security.

Finally, another key criticism is that the private sector  is not part of most observations properly covered in this area, as the critics say ". . . despite years of lobbying" the corporate regulator Australian Securities and Investments Commission (ASIC). In this respect, ASIC provides an informative webpage that does detail the extent of protection provided to whistleblowers and the areas in which ASIC can receive whistleblower information. However, for example, ASIC protection for whistleblowers is limited to Corporations legislation and does not extend to other legislation administered by ASIC:

Whistleblowers Australia in this respect has been reported as saying that Australia should replicate the system applying in the United States, where a whistleblower can bring suit under the Federal False Claims Act which requires the guilty party to compensate the government, and where the whistleblower is entitled to a bounty from that compensation.

Is More Protection Needed

In the case of Ms Newman, she was found to have transgressed, because she was not a public servant, because current public disclosure laws exclude politicians, but as Julian Burnside says in his Guardian article:

The whole question, when also seen in the light of the findings of recent corruption inquiries seems to beg for "more protection" not "less" and possibly not the mixed signals being sent from the Federal government when it tries to reconcile national security (the section 35P issue) with public interest and disclosure. 

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• Australia's first national protection laws for whistleblowers has come into effect. (SBS News)
• Freya Newman, the whistleblower behind Frances Abbott's scholarship, should be thanked not punished (The Guardian)
• George Brandis attempts to reassure reporters – by undermining journalism (The Guardian)
• National security bills compound existing threats to media freedom (The Conversation)