The Commonwealth’s relatively new Public Interest Disclosure scheme is working quite well, at least in the experience of Steven Kennedy, a deputy secretary at the Department of the Prime Minister and Cabinet.
“I have had some experiences where I have seen matters being disclosed … and in my own experience, [they] have been handled well and the whistleblower aspects of that … in my view, inside the federal public service, were handled well,” Kennedy told the first biennial National Integrity conference last week.
After a speech detailing some work on measuring public trust in government, Kennedy had been asked a question about the whistleblower scheme by Peter Bennett, who successfully challenged strict confidentiality rules that applied in the federal public sector more than a decade ago. The famous series of cases in the courts and the Human Rights Commission led some senior officials to believe the sky would fall in, and had major consequences for freedom of speech in the public service.
Bennett, who was a union leader in the former Customs service, said he was an “ex-whistleblower, survivor [who] came out the other side OK — sort of” and had seen some “really good CEOs” in the public sector but also some “absolutely atrocious ones” as well as “bad decisions made that have hurt a lot of people” over a 40-year career.
Kennedy said his own experience did not really tally with Bennett’s view of a powerful bureaucracy that seeks to maintain and expand its influence, “reviving itself and adapting” to outlast governments and ministers that come and go. Politicians have all the power, in Kennedy’s view, and they ignore the pleas of public servants routinely.
“They can do it faster than the government has any way of catching up with them, and if it doesn’t suit the public sector, they stand in the road and they block it, again and again and again,” said Bennett, noting that he had to go outside the public service to the courts to challenge the mandarins.
“And other people don’t have the resources that I had or don’t have the time or the energy,” he added, suggesting there was no reliable system for internal disclosures or for public servants to fight internal workplace policy and the way it is interpreted.
But Kennedy believes the PID scheme is the right basic structure and reiterated he had only ever seen it working as intended.
“I’m not saying that’s always the case … I’m not saying there aren’t areas for reform but my feeling is the bones, the right structure of the system, is there. All systems will struggle up against people who are behaving in … corrupt manners, and perhaps that’s what you’ve come across, but that’s not been my experience.”
New guide to navigating the PID Act
PM&C also recently published a new guide explaining how its staff can make public interest disclosures in line with the rules of the Commonwealth’s whistleblower legislation.
Essentially, the PID Act creates a set of rules so that public servants can blow the whistle on dodgy behaviour without being accused of breaking the other rules that restrict what they are allowed to say publicly.
The scheme recognises that laws which protect sensitive information, as well as the reputations of public institutions and individual officer holders, can also be used to shoot the messenger and sweep their allegations under the carpet.
But the ins and outs of the legislation are a bit more complex than that — as illustrated by a flow chart included with the new PM&C document.
The central organ of the federal government often publishes such guides, which are ostensibly only of interest to public servants, for the edification of outside observers and in the spirit of transparency. This one might be of more than usual interest to outside observers, given it details the processes for uncovering shady behaviour that concerns the whole community.
PM&C whistleblowers go to the media
Coincidentally, the guide popped up online only a few days after The Australian reported it had seen a copy of a letter that a group of “concerned public servants” sent to PM&C secretary Martin Parkinson, accusing “a senior departmental official” of corruptly awarding contracts to companies owned by close friends.
The accusations of actual corruption follow sustained criticism of the Indigenous Procurement Policy, mainly from the Prime Minister’s former Indigenous Advisory Council chair, Warren Mundine.
The policy has successfully encouraged public servants to make a lot more use of an exemption in the procurement rules, allowing them to award lots of contracts to Indigenous-owned suppliers without going through a competitive tender process.
The whistleblowers reportedly told Parkinson the policy had led to “corruption dressed up as Indigenous engagement” and that this involved public servants failing to ensure some contracts contributing to the IPP targets provided the taxpayer with value for money, as they are required to in all procurement decisions.
If it was the authors of the accusatory letter who also sent it to the newspaper — and they were caught in the act — then the PID Act would not protect them from disciplinary action or legal liability.
Unless, that is, they met the fairly high bar for an external disclosure under section 26 of the act. In that case they would need to have reported it internally, and waited until the investigation took longer than 90 days, or have reasonable grounds to claim the investigation or the response to it were inadequate.
Even then, the act only allows the whistleblower to publicise as much information as “reasonably necessary to identify one or more instances of disclosable conduct” — and only if the disclosure would not be contrary to the public interest, contain “intelligence information” or have pretty much anything to do with an intelligence agency.