MELBOURNE: 8 July 2013 - Earlier articles discussing whistleblowing that I have posted on the CLMR portal have described how intensely political the path towards a national scheme of whistleblowing legislation in Australia has been. It has been a slow journey despite support for a national scheme over many years from numerous influential actors including amongst others, a Senate Select Committee in 1994 and a House of Representatives Standing Committee in 2009. 

The current 43^rd sitting of the Australian Parliament has seen a minority Labor Government manage to run its term due in no small measure to ongoing support from Independent MPs.  A condition of that support was a commitment by then Prime Minister Julia Gillard to introduce whistleblower protection legislation, and indeed there was an unsuccessful Private Members Bill introduced in October 2012 by Independent MP Andrew Wilkie. The Commonwealth Government, however, was critical of Mr Wilkie’s Bill and finally introduced its own whistleblower legislation, the  Public Interest Disclosure Bill (the Bill) on March 21 2013 for its first reading in Parliament.  The Bill received limited public debate, because that day was the day of the infamous phantom Labor leadership spill instigated by Simon Crean, Minister for the Arts and Minister for Regional Australia, Regional Development and Local Government, when he publicly implored, (without success), Kevin Rudd to challenge Prime Minister Julia Gillard for the Labor leadership.

Despite the limited public debate there was criticism from some commentators that the Bill was too limited in its protections and overly prescriptive.  The Bill then moved to the House of Representatives Standing Committee on Social Policy and Legal Affairs for further consideration. It seems almost inevitable that when the Bill emerged from the Standing Committee for its second reading it would coincide with more Labor leadership tumult and so it proved.  On the 26 June 2013, the leadership spill was no phantom and Kevin Rudd replaced Julia Gillard as Labor leader and subsequently as Prime Minister. On the day of momentous political change as Mr Rudd toppled Ms Gillard, the Bill received both its second and third readings and the text of the Bill was passed by both Houses. 

As with its first reading on 21 March there was limited coverage of the Bill amidst the political furore surrounding the leadership of the Labor party, but there is no denying that it represents a watershed moment for the protection of public integrity in Australia as the first national scheme of whistleblower protection to receive parliamentary approval.  As Attorney General Mark Dreyfus has stated: “A federal public interest disclosure scheme has been a long time coming. The passage of this legislation means that the Commonwealth is no longer the only Australian jurisdiction without dedicated legislation to facilitate the making of public interest disclosures or to protect those who make them.” Indeed the Bill has been described by some commentators as: “..historic and meaningfully symbolic (as opposed to merely symbolic).”

That the Bill should merit the label of meaningful symbolism has a lot to do with the amendments that occurred as a result of deliberations in the Standing Committee and the realpolitik of second and third readings in a minority government context.  In all there are 73 amendments, many of which are significant.  For example: under clause 18 a new public interests costs rule means that if a whistleblower takes court action against a government agency for reprisals taken against them, even if they are unsuccessful in proving reprisal, they are indemnified against paying the other side’s costs as long as they are deemed to have acted reasonably; under clause 19 penalties for taking reprisals against whistleblowers are quadrupled from six months to two years imprisonment; and under clause 26, (an amendment proposed by leader of the Greens Party Senator Christine Milne), emergency disclosure provisions are extended to disclose regulatory failure or wrongdoing relating to the environment.  These are just 3 of the 73 amendments from the original 21 March Bill.  Also highly significant are the changes under clause 26 that lessen the bias surrounding requirements to prove that an external disclosure is not contrary to the public interest, although significant value judgement risks remain for any potential whistleblower. 

The various amendments collectively have the effect of improving whistleblower provisions in comparison to the original Bill, but there are still substantial gaps in coverage.  For example, under clauses 26 and 41 intelligence agency personnel are still not protected, and under clause 30 staff of Members of Parliament are not protected.  Nevertheless overall will whistleblowers in federal public sector contexts be provided with substantially enhanced protections – definitely yes.  Would similar improvements have been achieved if there was not a minority government dependent for survival on the support of Independent MPs – probably not?  This is the political reality of regulatory production on sensitive issues. 

Importantly the Bill includes a statutory review of its operation two years after its commencement.  This is most welcome and may well provide a springboard for further regulatory innovation to promote and protect whistleblowers.  However, perhaps of most significance it is important to note that the new whistleblowing provisions will not be available to people working in the private sector and apply only to officials in federal agencies and the Commonwealth public sector. 

The great challenge moving forward in Australia is to determine what value as a society we apply to whistleblowers, not only in the public sector, but also in the private sector.  Subsequent to this, what are the legitimate and adequate protections and incentives (including, perhaps, bounty payments as utilised by the US Securities Exchange Commission) that should be accorded to whistleblowers under legislative protection? 

Australia has taken a significant step with the Public Interest Disclosure Bill 2013 but there is a long way to go on this particular regulatory journey.