By students of the ANU law social justice program
Whistleblowing is a valuable tool used to hold public officials to account for their actions. Whistleblowing is the act of exposing information or activity from within a private or public organisation, information that is deemed illegal, illicit, unsafe, or a waste, fraud, or abuse of taxpayer funds.
A protective framework is established in legislation and is intended to prevent whistleblowers from facing personal or legal ramifications as a result of exposing the illegal or harmful actions of office-holders.
While ACT whistleblower legislation largely serves the purpose of upholding freedom of information and freedom of speech, Commonwealth legislation has been used to target and silence whistleblowers and journalists to prevent them from disclosing information the Commonwealth does not want exposed. This information may be related to national security interests. Whilst it can arguably be sometimes in the public’s best interest to have such information disclosed, the Commonwealth uses legislation to criminalise the disclosing of this information.
Current ACT legislation
Whistleblower protections in the ACT are governed by the Public Interest Disclosure Act 2012 (ACT). There have been amendments to the Act in 2020 by the Public Interest Disclosure Amendment Act 2020 (ACT). While the Amendment Act has been passed, it has not yet (12 March 2021) become effective.
Whistleblowers are referred to as ‘public interest disclosers’ in the Act and the Amendment Act. A public interest disclosure, under the Act, used to mean ‘a disclosure of information by a person about disclosable conduct’.
Following this, disclosable conduct used to mean something that could be a criminal offence in the ACT or would give reasonable grounds for disciplinary action. Both these definitions have since been changed by the Amendment Act.
When the Amendment Act becomes effective, a public interest disclosure will be defined as ‘a disclosure of disclosable conduct that is taken to be a public interest disclosure under section 17A(3) or section 27(4)’.
The definition of disclosable conduct had the most substantial revision in the Amendment Act. ‘Disclosable conduct’ now means an action, policy, practice, or procedure of a public sector entity or public official that amounts to maladministration or ‘results in substantial and specific danger to public health or safety, or the environment’.
Changing this definition was intended to make it clearer for disclosers whether the conduct that concerned them actually fell within the scope of the Act.
Whistleblowers have two main forms of protection. The first is a general form of protection, in the sense that disclosers are immune from liability. The making of a disclosure will not constitute breach of confidence, breach of professional etiquette or ethics, breach of rule of professional conduct, or contempt of the Assembly (if made in relation to the Legislative Assembly). The discloser does not incur civil or criminal liability for making the disclosure.
Finally, if the discloser is a public official, they are not liable to administrative action for making the disclosure. This general protection was not amended by the Amendment Act.
Whistleblowers also enjoy a specific protection from defamation. The discloser has a defence of absolute privilege for publishing information. The defence was the subject of an amendment, but it did not change the content of the protection, only the wording of the section.
It must be noted that these protections are not absolute. A discloser can lose their protection if they have given information that they know is false or misleading or if the ‘disclosure is vexatious’.
Comparable regulations in Australia
Whistleblowing or ‘public interest disclosure’ protections have been enshrined in all states and territories, and the Commonwealth, with varying degrees of protections and entitlements. For example, many jurisdictions in Australia do not allow for protections such as injunctive relief to restrain detrimental action from an employer in the way that the ACT does.
More detrimentally, national intelligence and security laws criminalise whistleblowing which might threaten national security or commercial interests, and this legislation supersedes ACT legislation. Notably, the broad definition of terrorism within the Criminal Code Act 1995 (Cth) could lead to whistleblowers being found guilty on terrorism charges.
There are currently three active cases in the ACT where ACT residents are being prosecuted under the Commonwealth whistleblower legislation. These are David McBride, Witness K, and Bernard Collaery.
David McBride was a military lawyer alleged to have leaked to the ABC classified defence documents that showed that Australian soldiers in Afghanistan had been killing unarmed civilians. The material he provided was used to establish the “Afghan Files” reporting, over many years, by mainstream print and TV journalists.
Only one man charged: the whistler
Despite the fact that the Defence documents he highlighted contained evidence that Australian soldiers had been murdering civilians, McBride is currently the only Australian military person that served in Afghanistan who has been charged with a crime.
A senior Australian Secret Intelligence Service (‘ASIS’) operative, known by the name Witness K, was charged with revealing national secrets relating to allegations that Australia bugged the Timor-Leste government building during their treaty negotiations regarding the division of the Greater Sunrise oil and gas fields between Australia and Timor-Leste.
Specifically, Witness K has been charged with conspiring to breach section 39 of the Intelligence Services Act 2001 for ‘allegedly communicating information they obtained in the course of employment or an agreement with ASIS’. Witness K has pleaded guilty to sharing protected ASIS information and is facing prison time for trying to correct what he saw was a gross injustice against Timor-Leste.
Finally, Bernard Collaery is also charged under section 39 of the Intelligence Services Act, owing to his role as Timor-Leste’s representee in their complaint to the international Permanent Court of Arbitration.
Collaery was charged after an Australian Security Intelligence Officer raid ordered by former Attorney-General George Brandis discovered an affidavit prepared for Timor-Leste that allegedly contained illegally-obtained information from ASIS. The Intelligence Services Act does not contain a public interest defence leaving few other avenues of defence. However, the High Court may find that the Intelligence Services Act interferes too much with the implied right to freedom of political communication, and this implication may provide a defence for Collaery.
Only two men charged: no charges for doing the bugging
To date, only Witness K and his lawyer Bernard Colleary have been charged with crimes. No one involved in the bugging operation has been charged, including former Foreign Minister Alexander Downer who is alleged to have authorised the operation.
Witness K and his lawyer Bernard Colleary who are said to have disclosed alleged unlawful conduct by Australia’s intelligence service and are now defendants in criminal cases. The government, which initiated the alleged unlawful covert operation, is the prosecutor.
These cases illustrate that while Australian whistleblower legislation may appear sufficient, the first time it has really been put to the test has shown it falls down on power imbalances and is not protective of whistleblowers.
A government’s decision to legislate with respect to public interest disclosures shows an acknowledgement that they exist and in certain circumstances, disclosures are acceptable and not criminal. In Witness K and Bernard Colleary’s cases, section 39 of the Intelligence Services Act 2001 does not have a public interest defence to disclosures. However, the Australian Law Reform Commission’s 2010 inquiry into secrecy laws recommended that secrecy laws should make allowances for public interest disclosures, yet this has yet to be implemented. The legislation needs to distinguish between public interest disclosures that may embarrass the government and those that actually affect Australia’s national security.
It is imperative that Australia creates a culture that supports whistleblowers: legislation alone is not enough. Whistleblowing comes at a great personal cost to the whistleblower and this should be recognised. Those who disclose unlawful conduct for the benefit of society should not be prosecuted for doing so.
Justice and the rule of law dictates that the perpetrators of the unlawful conduct should be held accountable and prosecuted, regardless of who they are or for whom they work. The government should not be above the law.
Comparable regulations globally
Globally, whistleblower protections are more sporadic. The US whistleblower ‘reward’ laws have proven effective in incentivising whistleblowers to disclose incidents of fraud, waste and abuse. These “qui tam” instruments operate on the basis that billions of dollars are otherwise lost through fraud or abuse and thus encouraging more people to come forward with complaints can enable more money to be recuperated. Moreover, these laws help to strengthen external channels of reporting, as often internal mechanisms are either inadequate or perceived to be inadequate by would-be whistleblowers.
These laws have proven immensely effective, garnering over 7 billion USD and are largely considered as the USA’s most effective anti-corruption provisions. Additionally, these laws are able to be targeted at public and private sector disclosures which is essential for a robust system of whistleblower protections.
Suggested reforms to ACT legislation
The recent Amendment Act addressed many of the areas in ACT whistleblower legislation in which there were previously calls for reform. The Amendment Act extends protection from liability to witnesses as well as disclosers. The Act made no mention of witnesses at all; this was seen as a serious flaw as it meant witnesses would be unwilling to assist with investigations as they could face liability.
Another area that was seen as demanding reform was that personal workplace grievances were not specifically excluded from the Act.
Whistleblower protection legislation is not intended to extend to personal grievances, and it was thought this should be more clearly specified in the Act. The Amendment Act now outlines this in s8. The Amendment Act succeeded in addressing many of the areas of suggested reform in ACT whistleblower legislation.
Suggested reforms to Commonwealth legislation
While Commonwealth legislation provides some protection to whistleblowers, it also prohibits the disclosing of information that may harm national security.
The latest amendments to Commonwealth whistleblower legislation occurred with the introduction of the Treasury Laws Amendment (Enhancing Whistleblower Protection) Act 2019. This Act amended several Commonwealth statues by including explicit provisions protecting whistleblowers. These provisions provide that a discloser is eligible for protection if they are either an eligible discloser, or if the disclosure is made to an eligible recipient, body or legal practitioner.
The amendments to each individual Commonwealth statute include very similar, if not identical, provisions to the above effect. If a discloser qualifies for protection, they cannot be subject to civil, criminal or administrative liability for making the disclosure; no contractual, other remedy or right can be exercised against the discloser on the basis of the disclosure; and the information is inadmissible as evidence against the discloser in criminal proceedings.
Journalism is an area where Australian whistleblower legislation falls short of providing adequate protections, as it is often journalists who publish sensitive information obtained by whistleblowers.
If sensitive information is found to be leaked through a journalist, said journalist can face charges even when they reasonably believe it is in the public’s best interests to be made aware of the information.
Commonwealth legislation provides protection to the discloser if the discloser makes the public interest disclosure to a journalist. However, no such protections are extended to the journalists as the recipients of the public interest disclosure, and then as the ones who share the information via the media.
The ACT, like other Australian jurisdictions, does not provide protections for journalists that publish public interest disclosures. This lack of protection in Australia was exemplified in the Desmond Kelly whistleblowing case in 2007, where two journalists pleaded guilty to contempt for refusing to identify their source.
A contentious recent example of the lack of protections for journalists in the ACT was the 2019 AFP raids on the home of News Corp political journalist Annika Smethurst. An ACT magistrate provided police with a warrant to search her home, computer and phone because the year prior, she published an article referring to a leaked government document regarding spying on Australian citizens. There have been many concerns voiced over this incident, and the backwards step it indicates for freedom of the press and freedom of information in Australia.
By contrast, many of the jurisdictions within the USA have enacted ‘shield laws’ designed to protect reporter’s privilege. These shield laws not only serve to safeguard the free press as an avenue for whistleblowers, should they see official streams as not able to adequately resolve the problem, but also help protect the identity of whistleblowers by enshrining protections for journalistic sources.
In conclusion, ACT whistleblower legislation has recently been updated to address previous areas of concern. Therefore, there are few apparent areas of concern with the new legislation, although undoubtedly overtime issues will emerge.
It is Commonwealth whistleblower legislation that typically has been seen as more restrictive and inadequate. Legislation can fail to provide adequate protections for both whistleblowers and journalists, especially when perceived national security interests are potentially involved, as demonstrated by current cases.
It is important that legislation balances the need to protect sensitive information with protecting freedom of speech and freedom of the press, and in general, whistleblower legislation should serve to protect – not target – whistleblowers, including journalists.
Organised by Civil Liberties Australia in conjunction with the Law Reform and Social Justice students at ANU. Student author contributors: Freya Cox, Sebastian Judge and Alice Read, with editing by Jessica Hodgson, Jess Honan and Jeffrey Weng
NB: The content and expressions in the essays do not necessarily reflect the position of CLA.