A whistleblowing and integrity expert has given his hot tips on how the government can repair public trust in its protection of whistleblowers.
Griffith University Professor A J Brown delivered a seven-point plan for restoring public confidence in Commonwealth whistleblower protection to a Senate inquiry into press freedom and whistleblower protection, before appearing at its hearing on Friday.
Brown notes the public debate that led to the inquiry has revolved around the “inadequate” legal protection for journalists who receive and report on government leaks, and suggests too little attention has been paid to the inadequacy of legal protection for public servants who have reasonable grounds to make public-interest disclosures, whether to the media or anyone else.
Secondly, he draws attention to the lack of “a general public-interest defence for citizens who justifiably disclose official information which has been made secret under criminal law, whether related to suspected wrongdoing or more general principles of the public’s ‘right to know’ – again,
irrespective of who they are, including the media”.
The professor’s plan calls for an overhaul of the Public Interest Disclosure Act 2013, “to better support a consistent, coherent, and workable national approach to whistleblower protection across Australia’s public sector”.
Brown argues the criteria for protecting those who blow the whistle outside of official channels should be updated so it is simpler, reflects the public interest, and is consistent for the public sector and Commonwealth-regulated parts of the private sector. He says the PID Act needs to be upgraded to create a “true whistleblower protection regime” in which it is genuinely “viable for public servants to use internal and official channels” to report wrongdoing.
The Commonwealth should “make protections real by providing effective support to public interest whistleblowers” which means increasing the federal ombudsperson’s monitoring and support roles, establishing a fully resourced whistleblower protection authority, and considering a reward scheme for public interest whistleblowers, the submission adds.
Brown was a former member of the Commonwealth’s ministerial expert advisory panel on whistleblower protection, and recently expressed his concern over the Queensland Police Service reportedly misplacing a whistleblower’s complaints.
His seven-point plan for restoring public confidence in Commonwealth whistleblower protection is:
- Undertake comprehensive overhaul or replacement of the Public Interest Disclosure Act 2013 (Cth) — not as a piecemeal reform, but so as to better support a consistent, coherent, and workable national approach to whistleblower protection across Australia’s public sector, business, and not-for-profit organisations.
- Reform the criteria for when whistleblowing outside official channels remains protected — to be simpler, more workable, reflect presumed public interest in disclosure of wrongdoing, and be consistent for both the public sector (PID Act) and Commonwealth-regulated private sector (Corporations Act or replacement stand-alone legislation).
- Revise statutory definitions of ‘intelligence information’ (PID Act, s. 41) and ‘inherently harmful information’ (Criminal Code, ss.121, 122) to ensure whistleblower protection at all levels is extended to genuine public interest disclosures, i.e., which meet the simplified public interest tests and pose no actual, real, unacceptable risk of harm to national security, defence, or law-enforcement interests.
- Strengthen journalism and other third-party shield laws to ensure (a) confidentiality of public interest whistleblower sources or clients, and (b) freedom of journalists and other relevant professionals from prosecution for receiving or using public interest disclosures in the fulfilment of their duties or functions (PID Act and Evidence Acts).
- Ensure it is viable for public servants to use internal and official channels for disclosure of wrongdoing, by updating the PID Act to be a true whistleblower protection regime: Amend anti-detriment protections to match international best practice, by removing the de facto requirement for a deliberate, knowing intention to cause harm before civil or employment remedies can be accessed (s. 13(1)(b)&(c)); b. Update the anti-detriment protections to match new national best practice (Corporations Act), by: expanding the definition of unlawful detriment beyond employment actions; extending civil liability to organisational failures to support and protect; and reversing the onus of proof for civil or employment remedies; providing for exemplary damages.
- Make protections real by providing effective support to public interest whistleblowers: Update the statutory minimum requirements for whistleblowing policies and programs in the public sector, and increase the Commonwealth Ombud’s monitoring and support roles; Establish a fully resourced whistleblower protection authority to assist all reporters and regulators with advice, support, coordination and enforcement action to prevent, deal with, and gain remedies for detrimental conduct; Continue to consider a reward scheme for public interest whistleblowers.
- Recognise the wider validity of public interest disclosure of official information, beyond employee disclosures of wrongdoing, by making available a general public interest defence for any citizen charged with offences of unauthorised disclosure or receipt of official information (Criminal Code).