Whistleblowing isn't dobbing. It supports our democracy
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Whistleblowing isn't dobbing. It supports our democracy

The proposed secrecy laws should send a collective shiver through the public service.

Former NSW police commissioner Tony Lauer reportedly once mused: "Nobody in Australia much likes whistleblowers." A year ago, I wrote for the local law society journal that whistlelblower protections might be entering a new era, with 2017 potentially representing a "landmark year for a previously neglected area of Australian workplace law".

Recent developments suggest I was unduly optimistic, and that Lauer's words still ring true.

The government is encouraging whistleblowers against unions and businesses while punishing those who highlight wrongdoing in the public sector. Illustration: Simon Bosch

The government is encouraging whistleblowers against unions and businesses while punishing those who highlight wrongdoing in the public sector. Illustration: Simon Bosch

In December, hours after marriage equality became law, the federal government introduced legislation to Parliament concerning "espionage and foreign interference". Buried among hyperbole about the rise of foreign influence was schedule 2, which introduced the most significant reform of Australia's official secrecy laws in a century.

Few stakeholders disagree that these laws require revision. The present official secrecy offences in the federal Crimes Act were introduced in 1914, a rushed response to the onset of World War I. They are broadly worded and include no statutory defences. A detailed and thoughtful Australian Law Reform Commission report recommended reform in 2010.

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But the proposed legislation, if passed, goes far beyond what the commission proposed. If enacted, the new secrecy laws should send a collective shiver through the public service. With a maximum jail term of 20 years, wide-ranging definitions that criminalise the unauthorised disclosure of government information even if no harm is proven and no public interest defence (except for journalists, and even then their defence has been dismissed as a mere fig leaf), prospective whistleblowers will need have to muster real bravery to expose government wrongdoing.

The proposed legislation is ill-advised for three primary reasons. First, expansive government secrecy is almost never warranted. In his 1965 publication Not in the Public Interest, Sir David Williams warned that "sweeping assertions of executive secrecy ought not to be tolerated in a democratic society". Self-government is the centrepiece of Australia's constitution, and it's hard to be an informed voter when swathes of official information are buried by secrecy legislation. The present government has also shown a concerning tendency to favour the avoidance of embarrassment over transparency, a trend this new law will only exacerbate.

Of course, some official information requires protection. I would welcome carefully contained revision to the extant official secrecy regime. But that's not what the present bill offers. Its sweeping nature borders on draconian – one commentator has described it as "creeping Stalinism".

Second, a desire to crack down on public servant whistleblowers puts the cart before the horse. The authorised scheme for public sector whistleblowing, the Public Interest Disclosure Act, has been criticised by academics and a statutorily mandated review. Although a start, the existing laws fail to provide the comprehensive level of protection that whistleblowers require. Indeed, the act is currently under consideration for reform.

Cracking down on unauthorised disclosure before a robust and effective program for authorised disclosure of official information is illogical at best, and shows a barely disguised contempt for whistleblowers at worst. In light of recent reporting that nearly 5000 public servants witnessed corruption over the past year, the apparent lack of interest in providing effective channels for the highlighting such misdeeds and the chill this legislation will send down the spines of prospective whistleblowers suggest a government undisposed to tackling corruption and maladministration within the Australian Public Service.

Finally, the reform signals a real cognitive dissonance in the government's thinking on this topic. In 2017, the government agreed to fundamental reform of whistleblower protections, starting with union whistleblowers and then extending to private and public sector employees. Once implemented, the private sector whistleblower protections will be the first of their kind in Australia. The laws were exacted by the crossbench in return for its support for the industrial relations bills that had earlier produced a double-dissolution election.

The resulting committee report expounded over its 212 pages the need for better whistleblower safeguards and proposed, among its extensive suite of recommendations, creating a whistleblower protection authority. How the government can demonstrate leadership or moral authority on the most comprehensive whistleblower protections reform in Australian history, while simultaneously cracking down on leaking public servants, is beyond my comprehension.

Whistleblowers (and the journalists who report on their information) play a crucial role in any democratic society. Australia's traditional reluctance to protect and embrace whistleblowers has long been problematic, but its persistence into the 21st century puts this country at odds with a global movement highlighting the importance of whistleblowing. In the United States, for example, whistleblowers can be rewarded handsomely – with millions of dollars available for providing information that leads to prosecutions and civil actions. Whatever your disposition to financially incentivising whistleblowers – it has been described by lawyers Nicholas Mavrakis and Katrina Hogan as un-Australian, "at odds" with our "strong culture of mateship and respect for authority" – it sends a strong signal that whistleblowers are important in a healthy society.

The present government has shown a concerning tendency to favour avoiding embarrassment over transparency.

The proposed legislation does the opposite. It is now before the parliamentary joint committee on intelligence and security, and one can only hope that the committee sees sense and recommends revising it. Having spoken with several stakeholders and experts in this field, I know I'm not alone in my position.

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In its September 2017 report on reform to whistleblower protections, a bipartisan committee of Liberal, Labor, Nationals, Greens and crossbench parliamentarians explained that "effective whistleblowing provides an essential service in fostering integrity and accountability while deterring and exposing misconduct, fraud and corruption". Those words should be heeded. The proposed changes to official secrecy offences represent a potent threat to whistleblowers, and should not become law in their present form. Australia simply cannot afford to continue disliking whistleblowers.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleague Kieran Pender for his help in preparing this article. john.wilson@ballawyers.com.au

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