Public servant leakers still face prosecution, despite new whistleblower laws

Australian public servants who leak to the media will be treated as common “data thieves,” authorities have warned.

The Public Service Commissioner says leakers in the bureaucracy could still face prosecution, despite looming changes to whistleblowers protection laws.

Despite new whistleblower laws, data thieves in the public service will still be treated as thieves.
Despite new whistleblower laws, data thieves in the public service will still be treated as thieves. 

Commissioner Stephen Sedgwick recently told a gathering of senior public service executives that “one person’s leaker can be another person’s whistleblower” and that leaking would not be condoned under the new regulatory framework.

According to Mr Sedgwick’s official figures, as many as 20,000 federal public servants had witnessed serious internal misconduct in the latest 12-month reporting period but that less than half of them had made internal reports, usually because they distrusted the official process or they feared reprisal.

Of those who reported, 55 per cent said they were left unhappy with the official reaction, but the commissioner said he still believed that internal reporting was the best way to deal with fraud, corruption or misconduct.

“Whistleblowing and leaking are not the same,” Mr Sedgwick told the assembled public service bosses.


“Leaking happens outside the framework, is not protected by any legislation, and cannot be condoned.

“Public servants who leak are, in a very real way, damaging the trust and conventions that make Government work in our democracy.”

Australian Public Service Commissioner Stephen Sedgwick.
Australian Public Service Commissioner Stephen Sedgwick. Photo: Melissa Adams

He warned that public servants who took their suspicions or disclosures outside the official framework would be regarded as thieves and could still be prosecuted.

“A data thief is a thief like any other,” he said.

Shadow: US intelligence leaker Edward Snowden.
Shadow: US intelligence leaker Edward Snowden. Photo: Reuters

“That they might use a flash drive rather than a crowbar misses the bigger point, which is the legitimacy of a disclosure.”

The new laws have been hailed by governance experts, whistleblowers and politicians as a vast improvement on the previous legal framework on public interest disclosure.

But Mr Sedgwick said he did not believe the passage of the Public Interest Disclosure Act, which has not yet become law, would dramatically change the landscape.

“In many ways the new arrangements will largely replicate or complement existing inquiry and review mechanisms in the APS,” the commissioner said.

“Importantly, the expectation remains that, usually, a public official who comes across something that they think is wrong is to report it internally.

“An APS employee who sees misconduct in their department, for example, should report it to appropriate members of that department.”

The new laws do allow a public servant to make a disclosure to the media but only in limited cases, cited as “emergencies.”

The commissioner cited the case of former Customs official Allan Kessing the customs official convicted of leaking material to the media on the security of the nation’s borders.

Mr Sedgwick pointed out that the section of the public service code of conduct that triggered the prosecution remains unchanged.


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