The administration of Australia's Prime Minister, Kevin Rudd, announced plans this week for a new whistleblower law to protect Commonwealth employees. In 2008, the Rudd administration asked Australia's House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) to report on its recommendations for a model whistleblower protection bill. A year ago the Committee issued its report. Now the Rudd administration has responded. “Australia’s federal laws currently offer very few protections for public interest disclosures. The Rudd Government’s response moves to change that.” Out of 26 recommendations, the administration is accepting 10, accepting 11 more in part, and rejecting only four. The administration has announced that it hopes to have the final legislation enacted this year. Overall, the recommendations call on employees to raise concerns through proper channels, but recognizes exceptions in which going to other authorities or the media will be protected. If a government worker experiences retaliation, the law will call on the employing agency to correct it. If necessary, the employee can go to the Federal Ombudsman for relief. The Ombudsman could call on the Federal Police for an investigation, and then order the agency to provide reinstatement and other make whole remedies.
Our colleague, Peter Bennett of Whistleblowers Australia, reports that the proposals provide some significant improvements (such as protection for going public in some circumstances), but still leave some areas unprotected (such as universities).
ABC News reports that other advocates for Australia's federal employees are well pleased. Community and Public Sector Union (CPSU) spokeswoman Nadine Flood bemoaned the hard time Australian whistleblowers have had so far and told ABC News, "I think this legislation could lead to a real shift in culture in the public service."
I notice that the proposed legislation is missing a few elements our Center has found most effective. It provides no reward, or "qui tam" remedy for whistleblowers who help the government recover money obtained by fraud. The law also relies on appointed federal officials to decide on the merits of retaliation claims. In the US, such systems result in whistleblowers losing over 98% of their cases. Peter Bennett tells me that the culture is somewhat different in Australia where the opposition party can be more effective in getting the party in power to answer for what the government does. Peter says that the whistleblower, "at best breaks even – nothing more – and usually less." I would prefer to afford whistleblowers access to a jury trial to determine the merits of retaliation cases and the value of fair compensation.
Helpfully, the proposal calls for coverage of federal contractors. In an expansion from the Committee report, the administration calls for protections for media and third party disclosures when the subject is a matter of public health, safety, or in matters of corruption, waste or other official misconduct. Otherwise the disclosure must be made through established channels. The government wants to exclude from protection disclosures of disagreement over policy. If an employee makes a disclosure that is deemed not to be serious, the proposal will still provide for protection from retaliation. The whistleblower's motive in making the disclosure will be immaterial to the whistleblower's legal protection. Whistleblowers will also be protected when seeking legal advice. Whistleblowers in national security agencies would go to the Inspector-General of Intelligence and Security (IGIS) instead of the Ombudsman. The IGIS would also provide approvals for public interest disclosures (PIDs) for employees of intelligence agencies.
As in the US, Australia has a patchwork of whistleblower protections. Employees in certain industries have protections for certain types of protected activity. Neither country has a comprehensive whistleblower law to protect everyone for all reports of illegality and dangers to the public.
The following items are available from the National Whistleblowers Center:
- The Rudd Administrations official response to the House Committee Report.
- Statement by the Cabinet Secretary, Senator the Hon Joe Ludwig
- Cabinet Secretary, Senator Joe Ludwig's Press Release
- NWC's Australia page with more information about whistleblower protections