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Whistleblowing involves the disclosure of information in the public interest, typically to expose improper conduct, corruption, irregular unauthorised or mismanagement of public resources, or conduct that involves risk of injury, prejudice or harm to the public environment. Most Australian states have adopted some form of whistleblowing legislation to eliminate improper and unlawful conduct in the public sector; facilitate and encourage public disclosure, and provide protection for those who make disclosures. Whistleblowers are nominally protected under legislation from criminal or civil liability, dismissal or breach of confidentiality; and their identity is also kept confidential. Overall the existing state protection for whistleblowers is, however, weak in Australia.
There is no uniform national legislation to provide protection to whistleblowers. A Senate Select Committee on Public Interest Whistleblowing recommended in 1994 that “the practice of whistleblowing should be the subject of Commonwealth legislation to facilitate the making of disclosures in the public interest and to ensure the protection for those who choose to do so” (Hindess, 2004). Legislation is generally limited to the public sector, namely government entities and their agencies. Whistleblowers from the corporate, unincorporated and charitable sectors thus remain largely unprotected. Because state laws do not provide adequate protection, whistleblowers continue to face reprisals or punitive actions as a result of their disclosures. This is in contradiction of whistleblower protection principles and the freedom-of-the-press doctrine. A.J. Brown suggests that “All laws require a devised approach to allow clearer and more effective identification of those public interest matters requiring the protection of the scheme, better filtering of disclosures not intended to be protected, and clearer discretions for when investigation is not required” (Brown, 2006, p.3).
On July 11th, 2008, the Federal Government announced an inquiry tasked with finding a preferred model for legislation to protect public interest disclosures (whistleblowing) within the public sector. The inquiry is to be conducted through the House of representative Standing Committee on Legal and Constitutional Affairs and chaired by Labor’s Mark Dreyfus QC. The inquiry’s terms of reference include the categories of people who could make protected disclosures; the types of disclosures that should be protected; and the conditions that should apply to a person making a disclosure. The scope of statutory protection that should be available to a person making a disclosure should include procedures in relation to protected disclosures and the relationship between the Committee’s preferred model and existing Commonwealth laws. The Committee has been asked to report by 28 February 2009.
In early August 2008, Attorney-General Robert McClelland announced an additional inquiry to be conducted by the Australian Law Reform Commission examining the interaction between the secrecy provisions of the Commonwealth Crimes Act and other laws and practices “relating to secrecy, privacy, freedom of information, archiving, whistle-blowing, and data-matching”. Concurrent to these inquiries, a team led by Dr A J Brown, Senior Lecturer, Griffith University has been working with other academics to compile recommendations for streamlining and coordinating the various state-based whistleblower laws. The findings of this project are due to be released in September 2008.
Hindess, B. (2004). “Corruption and democracy within Australia”, http://democratic.audit.anu.edu.au/papers/focussed_audits/200408_hindess_corruption.pdf
Media Release from Senator John Faulkner,
11 July 2008: “Inquiry into Whistleblower Protection”:
http://www.smos.gov.au/media/2008/mr_242008.html
*The inquiry’s terms of reference:
http://www.smos.gov.au/media/2008/docs/Whistleblower_Protection_Terms_of_Reference.pdf
“Secret’s out: A-G wants to open up”: Chris Merritt, Legal affairs editor, August 07, 2008: http://www.theaustralian.news.com.au/story/0,,24139086-17044,00.html
