Whistleblower Protection and Accountability

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MELBOURNE: 25 May 2013 - March 21st 2013 was one of the most tumultuous days in recent Australian political history.  It began with an example of Australian parliamentary democracy at its best, with Prime Minister Julia Gillard’s moving National Apology delivered in the Great Hall of Parliament House Canberra to those many thousands of people, who over many decades had been victims of forced adoption or removal policies and practice. However, within hours of Prime Minister Gillard delivering that National Apology, the day had degenerated into political farce as the Labor Government’s long-simmering internal leadership tensions were exploded by Simon Crean, Minister for the Arts and Minister for Regional Australia, Regional Development and Local Government, who presented himself before the Canberra Press Gallery and demanded that Prime Minister Gillard hold a spill of all leadership positions within the Labor Party.  

 
As the drama unfolded through that afternoon, former Prime Minister Kevin Rudd refused to challenge Prime Minister Gillard for the party leadership and therefore the post of Prime Minister.  There was no change of leader or deputy leader in the Labor Party, the Prime Minister dismissed Mr Crean from his ministerial portfolios and numerous Kevin Rudd aligned Ministers tendered their resignations in the succeeding days. 
 
One of the abiding television images of that extraordinary afternoon was that of the Attorney-General for Australia Mark Dreyfus sitting alone in the Parliamentary Chamber.  Television commentators surmised that he was seeking respite from the madness of Labor Party politics.  That may well be true, but a contributing factor may have been that amidst the carnage of Labor Party politics he was ruminating on how difficult it would now be for him to generate media coverage of the Public Interest Disclosure Bill (the Bill) which he had introduced to Parliament on that eventful day.  
 
As Mr Dreyfus noted: ‘The Commonwealth is the only Australian jurisdiction without dedicated legislation to facilitate the making of public interest disclosures and protect those who make them.  This bill will rectify that situation.’   Mr Dreyfus is certainly correct in his first claim, if passed the Bill will provide the Commonwealth with dedicated whistleblower legislation, but will it protect whistleblowers to an adequate degree?
 
Some commentators are not convinced.  For example, Burgess describes the Bill as ‘..overly prescriptive and bureaucratically defensive.’   Another critic is the Independent MP for Denison, Mr Andrew Wilkie, who introduced his own private members bill on whistleblowing in October 2012, a Bill which was not supported by the Commonwealth Government.   Mr Wilkie has argued that the Bill introduced by Mr Dreyfus requires several important amendments, because it makes no provision to protect staff working for politicians or members of the intelligence community if they reveal wrongdoing to the media.   Professor A.J. Brown who has undertaken extensive research on whistleblowers in Australia in recent years shares Mr Wilkie’s concerns.  He is critical of the Bill’s restriction on the publication of suppression orders, public disclosure being classified by the Bill as a last resort and the inadequacy of proposed oversight regarding the prevention of reprisals against whistleblowers. 
 
The Bill has been passed on to the House of Representatives Standing Committee on Social Policy and Legal Affairs where relevant submissions closed on 19 April 2013.   It will be interesting to see what amendments are made to the Bill in this Committee stage prior to a Second Reading.  The federal election is scheduled for 14 September 2013 so there are only limited opportunities for the passage of legislation prior to that date.  
 
A revised Public Interest Disclosure Bill is likely because of the importance of the support of Independent MPs to the current Government and the importance of Commonwealth whistleblowing legislation to those Independents.  As detailed above Mr Wilkie has had his own bill stymied, and fellow Independent MPs Rob Oakeshott and Tony Windsor extracted a commitment from Prime Minister Julia Gillard in September 2010 to introduce whistleblower protection legislation to the Parliament as part of the agreement that assured her of minority government.  So, the realpolitik of contemporary Australian politics may at last deliver dedicated national whistleblower legislation.  Once a national scheme is a reality and its substantive character and process clear it can then be compared with equivalents in other jurisdictions such as: South Africa;  Japan;  and the United Kingdom.  
 
It will be a substantial step forward merely to have a national scheme in Australia.  Once in existence it will be hard for any government to dismantle and meaningful protection for whistleblowers will become much more achievable through ongoing regulatory innovation to an existing framework.
 

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