Why whistleblowers make the public service a better place
OPINION | Democratic Freedoms
Whistleblowers make the public service a better place. We avoid the next robodebt saga by decreasing the cost of courage and ensuring that those who speak up are protected, not punished.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
It has been a time of accountability and introspection for the public service. From the robodebt royal commission, which asked profound questions about the propriety of conduct within the APS, to the establishment of the National Anti-Corruption Commission, issues of transparency and integrity have loomed large.
One critical aspect of preventing future robodebt-style scandals, and enhancing the effectiveness of the NACC and other accountability bodies, is ensuring public servants feel protected and empowered to speak up about wrongdoing. Because if APS workers are afraid of raising concerns, or those concerns are not heard, wrongdoing will go uncorrected.
Thus the royal commission noted that the scheme had received “early and ongoing criticism” from departmental whistleblowers and external stakeholders. “Each example of criticism, as well as its cumulative impact, presented [the department] with further opportunities to investigate the concerns raised and react to them,” the report found. Instead, “those opportunities were not taken up”.
While the full horror of the robodebt saga was only exhaustively set out by the recent royal commission, it has been known for some time that the scheme for public servants to call out wrongdoing is not working.
The Public Interest Disclosure Act, which protects federal public sector whistleblowers, has been described by a federal judge as “technical, obtuse and intractable” – to the point of being “largely impenetrable, not only for a lawyer but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy.”
A review of the PID Act in 2016 surveyed early users of the scheme, which had come into force in 2013. It found that 72% felt unsupported by their agency in navigating the regime, while a similar proportion felt their concerns had not been properly dealt with, and that their agency was not committed to the scheme.
The consequence of a failing law, and an absence of support, is that whistleblowers stay silent. The chilling effect of the defective scheme is only compounded by the ongoing prosecution of two public sector whistleblowers, Richard Boyle, who spoke up about wrongdoing at the tax office, and David McBride, an Army lawyer who helped expose war crimes in Afghanistan.
What then is to be done — how can we ensure integrity and accountability in the public service? Particularly in this critical moment, where economic headwinds collide with societal inequality and the looming climate crisis, a robust, independent and transparent APS has never been more important.
Last week, the Human Rights Law Centre launched the Whistleblower Project — a new initiative to help whistleblowers speak up and be protected in doing so. We aim to provide pro bono support to whistleblowers, fulfilling the function envisaged by the PID Act, and other whistleblower laws, which explicitly provide for whistleblowers to seek legal advice in relation to their disclosures.
The aim of our project, which will combine legal advice and representation with the continuation of our proud history of policy, law reform and advocacy work, is to help convert these “paper rights” into practically enforceable, accessible protections. Research we published to coincide with the launch found not a single successful case brought under the PID Act in the decade since it was established — we want to change that.
The project is only a partial answer — we are a community legal centre with limited resources, supported by philanthropic and funding partners and the pro bono backing of leading law firms and barristers. We will try our best to support whistleblowers, but we may not be able to help everyone. And we cannot help those blowing the whistle on intelligence and national security matters, due to carve-outs in the PID Act.
More wide-ranging change requires law reform and institutional innovation. While initial technical changes to the PID Act passed Parliament in June — a welcome first step — the PID Act needs a complete rewrite.
Attorney-general Mark Dreyfus has committed to doing so, but the timeframe and process for doing so remains unclear. Rather than proceeding piecemeal with public sector reform, and then a statutory review of private sector whistleblower protections due next year, a more comprehensive process would be desirable — especially given the overlap between the regimes (public sector contractors can be covered by both schemes at once).
Law reform is important, but a key priority is the establishment of a whistleblower protection authority to oversee and enforce these laws. Such an independent statutory body was proposed by a parliamentary inquiry in the 1990s, and again in 2017.
The idea was taken to the 2019 election by Labor, but their commitment has since been watered down — at present the attorney-general has only promised a discussion paper to consider the idea, and limited to the public sector, later this year.
A dedicated body to ensure these laws work in practice, not only on paper, would go a significant way towards contributing to a pro-integrity, pro-transparency public service. It is also a missing piece of the NACC puzzle — a whistleblowing office was included in the cross-bench proposal, but missing from the Labor bill that became law.
Dedicated whistleblowing authorities have had success in the United States, Slovakia and the Netherlands — it is time for an Australian equivalent.
Whistleblowers make the public service a better place. We avoid the next robodebt saga by decreasing the cost of courage and ensuring that those who speak up are protected, not punished.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.