Amid the turmoil of the Labor leadership spill leading to a new Prime Minister, a milestone bill quietly passed through Parliament on Tuesday.
The Senate spent only about an hour on the Public Interest Disclosure Bill, with its consequential amendments. Yet this legislation is the first to provide comprehensive whistleblower protections for Commonwealth public servants and contractors who reveal serious wrongdoing. It is important because it creates a building block for a new sort of accountability for governments. The new law is not a complete answer, but it’s a first step.
At a time when politicians are talking again about how people are disengaged from public affairs, this legislation may signal a new kind of engagement, where individuals are motivated to bring wrongdoing into the public domain if it is not dealt with internally.
When the redux PM reaches out to engage the Facebook generation, he might just find that their political expression is not absent, just being channeled into non-traditional forms. In this new world, Crikey beats dead-tree versions of the news, and the Twitter feed for Q&A beats political party branch meetings. The world of whistleblowing is citizen-centric, and it doesn’t just rely on old-world concepts for “responsible government”: Parliaments and courts.
The younger generation Rudd appealed to in his speech understands digital resistance more than other forms of political activity. What is shouted across social media might be a new and different generational piece of what is missing in this engagement. That whole new way of thinking — out loud and transparently — brings with it demands for new structures of government accountability, such as better tools to openly reveal serious wrongdoing.
Highlights of the new law are:
- A key mechanism of new protection for whistleblowers is the Fair Work Act 2009 (Cth). They will be able to seek remedies where they have been unfairly dismissed or had adverse action taken against them. This allows a whistleblower access to these working provisions and the forum of the Fair Work Tribunal to enforce their rights.
- The risk of costs being awarded against a whistleblower has been alleviated. When whistleblowers seek to enforce their rights under the bill, the costs of that action (even if they lose) are now only payable by the whistleblower where action is brought vexatiously. This is an important step forward as the cost of whistleblowers seeking compensation via legal action has proven to be a major problem.
- There are now tougher penalties for reprisal against whistleblowers (up to two years in prison).
- It is now possible to make a disclosure externally (such as to the media). A whistleblower will still be protected if he goes public in circumstances where he believes on reasonable grounds that an investigation into his internal disclosure was inadequate. (Until last week, the proposed, almost impossible test was that “no reasonable person” could conclude that the investigation was adequate.)
- To gain protection, the bill requires the whistleblower to disclose the wrongdoing internally first. But this is the most common path that whistleblowers follow anyway — as shown by research by Griffith University as well as new research this month from the UK showing 83% of workers blow the whistle at least twice, usually internally.
- Whistleblowers can now disclose directly to their supervisors, which is also the most common pattern, rather than having to hunt down the “disclosure officer” of the department.
- The Ombudsman’s Office will play a substantial oversight role in how departments handle whistleblower complaints. Until now, how a whistleblower was treated really depended on the particular vagaries of her own agency. With the Ombudsman peering over their shoulder regularly, departments will have a stronger incentive to deal with whistleblower complaints properly. Agencies will no longer be a law unto themselves in how they deal with whistleblower complaints.
The new law is not perfect — it still has major gaps. For example, it excludes whistleblowing about politicians as well as the entire intelligence community, intelligence information and “policy” matters. These should have been included. This means the act will not give comfort to high-end national security whistleblowers like Edward Snowden or Bradley Manning. Nor will it provide a failsafe against politicians who lie to the citizenry on a large scale on policy matters.
But the act is well suited for government whistleblowers in most agencies and circumstances. It will help honest public servants who reveal corruption, maladministration or breaches of law in anything from fraud in IT contracts to the handling of immigration visas. In the areas the act covers, it does so in a reasonably substantial manner. It fills at least some of a yawning gap where there has been little to no coverage. Further, as part of the process, there is a government commitment to conduct a review in two years’ time.
Given the political realities of a struggling Labor government, possibly in its dying days, getting this whistleblower legislation — with its 73 improving amendments — through the Parliament hours before the prime minister was overthrown was a Herculean task. In recognition of this, late Tuesday afternoon this week a little clan of “integrity in government” sorts met to share glasses of bubbly and take a few happy snaps to mark the occasion. It was a modest, low-key affair, held, fittingly, in the public cafe at Parliament House.
Crikey quoted me in a March editorial saying it would be an admirable legacy if Attorney-General Mark Dreyfus and this Parliament managed to push whistleblower protections through before it dissolved. They have achieved this goal. But perhaps more importantly, this bill could be the start of a conversation with a disengaged generation about improving transparency — and trust — in the institution of government.
*Dr Suelette Dreyfus is a research fellow in the Department of Computing and Information Systems at the University of Melbourne
Dear Dr Suelette Dreyfus,
You want an accurate analysis of PIDL (yes the true acronym to the new provisions that allow senior public servants to urinate on more junior public servants as they whistleblow), you are best getting it from an experienced public servant whistleblower.
There is no legacy in this new legislation.
The new legislation exempts the Crown from pecuniary/exemplary/punitive damages. This is an absurd notion when the whistleblower can bring a far more superior action under common law misfeasance in public office to make the Agency/Crown culpable of pecuniary damages. That is disgraceful.
In effect, Public servants are able to bring far more superior claims under misfeasance in public office, negligence and breach of statutory duty for less serious disclosures and complaints. I think that is the ultimate oxymoron of this pathetic PIDL.
The Fair Work jurisdiction is not the appropriate setting or forum to deal with these serious issues and furthermore the whistleblower is disabled completely from reaching out to the media during the process of the investigation itself as this is the stage when the whistleblower is completely finished off (psychiatric referrals, reprisals in the form of counter investigations etc etc)—just the sort of thing to completely clip the wings of the whistleblower and ensure that they are completely silenced.
Going to the media early and refusing to participate in sham investigations is the only solution for a smart whilstleblower. Early public disclosure and the refusal to participate in sham investigation processes is the only thing that actually protects the whistleblower. PIDL is posited on the notion that your own Agency is going to do the right thing or that the Ombudsman will—that’s absolute bullshit!
Anyway, I can go on and on about PIDL…suffice to say that the A-G has ensured that a case like mine is not likely to see the light of day for a very very long time!
If you are a whistleblower or contemplating being one, please stop and contact me immediately—there are ways you can get past this PIDL and ensure that you don’t get urinated on when you do the right thing…call Serene Teffaha—Human Rights Advocate—0425 754 299
Serenatopia,
I suggest you contact Green Left Weekly and possibly write up a piece for them on this bill.
Good luck.
Thank you Ian. Noted.
Were it not for the Greens amendment, it would NOT have passed the Kessing Test, referred to by Sens. Xenophon,Milne and MP Wilkie.
But it is not retrospective and he remains screwed, broke and a convicted felon.
I agree with Serenatopia.
> When the redux PM reaches out to engage the Facebook generation, he might just find that their political expression is not absent, just being channeled into non-traditional forms.
There is a simple litmus test to see if Rudd is genuine: There is serious abuse of whistleblowers by Labor politicians and senior public servants taking place right now. If the govt was genuine about PIDL they would stop that. Gillard did nothing. Rudd could put a stop to it overnight.
> A key mechanism of new protection for whistleblowers is the Fair Work Act 2009 (Cth). They will be able to seek remedies where they have been unfairly dismissed or had adverse action taken against them.
After inflicting them to years of pain, abuse and bullying… Check out the Victims of CSIRO web site to see how easily the government abuses them within the current system and will continue to do so.
> This is an important step forward as the cost of whistleblowers seeking compensation via legal action has proven to be a major problem.
See Serenatopia’s comments. Courts are expensive and stressful places. The new legislation is criticised for being so narrow it needs a lawyer to interpret it, and arguing those ambiguities is how lawyers make money. The government has a gaggle of lawyers who will profit handsomely by denying and disputing everything and launching appeal after appeal until the whistleblower goes bankrupt or ends up so deep in debt or crushed they don’t want to continue.
The safest course of action for any whistleblower is to shut up and not say anything. That has not changed.
> There are now tougher penalties for reprisal against whistleblowers (up to two years in prison).
There are already severe penalties under the existing crime acts that the AFP refuse to enforce against crooked public officials. The AFP are a grubby politicised organisation. The media has already printed allegations of stonewalling and bribery against the AFP, but the opposition won’t challenge the govt over it. Not that they would ever do the same thing.
And the govt lawyers will continue to claim the whistleblower’s dismissal is unrelated to the whistleblowing. They have already done this. They will continue to do it.
> To gain protection, the bill requires the whistleblower to disclose the wrongdoing internally first. … (but most) workers blow the whistle at least twice, usually internally.
Which exposes them to reprisals and lets the government sit on it and drag out their misery so the whistleblower reads the writing on the wall and pulls out.
> The Ombudsman’s Office will play a substantial oversight role in how departments handle whistleblower complaints.
ROFL. The Ombudsman are a grubby and dishonest bunch compicit in cover ups. I don’t know one person who has been satisfied with them. Fairfax have known this for years but won’t print a word. Murdoch’s papers have reported it but not prominently. e.g. Defence Security Clearance Whistleblowers: “Five of us went to the (Federal) Ombudsman but didn’t get anywhere. They put it in the too-hard basket. We were given the impression that no one wins against Defence; they are too big and too powerful” GOOGLE IT!!!! Let me be clear: It’s rife & there are senior Ombudsman offices complicit in coverups of criminal acts by fellow public servants right now.
> Until now, how a whistleblower was treated really depended on the particular vagaries of her own agency. With the Ombudsman peering over their shoulder regularly, departments will have a stronger incentive to deal with whistleblower complaints properly.
The Ombudsman already stonewalls whistleblowers. They will continue to find excuses not to be involved. Writing something down doesn’t mean they will follow it. They just claim it doesn’t apply or there is some exception. They do this now, and they will continue to do it.
> Agencies will no longer be a law unto themselves in how they deal with whistleblower complaints.
The Ombudsman will, as they already do, continue to cover for them. It’s all about public perception. If the government was serious about looking after whistleblowers they would be rehiring the CSIRO whistleblowers right now. Patting the government on the back feeds that public misperception.
> But the act is well suited for government whistleblowers in most agencies and circumstances.
No it is not. It absolutely is not. That is a very dangerous claim to make, and will lead other whistleblowers to their doom.
> In recognition of this, late Tuesday afternoon this week a little clan of “integrity in government” sorts met to share glasses of bubbly and take a few happy snaps to mark the occasion. It was a modest, low-key affair, held, fittingly, in the public cafe at Parliament House.
I think I’m going to throw up. It’s bought “peace in our time”. It gives credibility to a dishonest government. Fairfax have know what the Ombudsman have been doing for years but won’t report it, but they will print this PR which plays right into the government’s hands: “Corruption stance gets well-earned pat on back. September 14, 2012. Michael Ahrens. Transparency International” GOOGLE IT!!!
Thanks, but we don’t need any more of this “help”.
The “integrity in government” clan does whistleblowers no favour by patting the govt on the back while they continue abusing whistleblowers behind closed doors. If the road to hell is paved with good intentions then this turns it into a highway.