Melissa Parke (Fremantle, Australian Labor Party) Share this | Hansard source

I am pleased to speak to the report from the Standing Committee on Legal and Constitutional Affairs arising from the inquiry into whistleblowing protection within the Australian government public sector. This report set out to ask the question of ‘how’ we should protect whistleblowers, not ‘if’ we should protect them. As noted in my submission to the inquiry, the statutory protection of whistleblowers—individuals who make a principled public interest disclosure of wrongdoing—can no longer be regarded as a new or controversial area in mainstream Australia.

From 1993, commencing with the response to the 1989 report of the Fitzgerald commission of inquiry into official misconduct in Queensland, whistleblower laws have been enacted in the Australian states and territories. The key feature of the approach taken in Australia has been the recognition that the ultimate objective of whistleblower protection law and policy, properly understood, is not the protection of whistleblowers as such. Protection is a crucial strategy for achieving the main objective: to encourage the disclosure of wrongdoing, fraud, waste, misconduct, abuse, corruption, imminent danger et cetera in an appropriate way so that something can be done about it. Practical concern about the public interest, rather than moralism, is the key. New laws to protect public interest disclosure of wrongdoing in broadly similar terms have also been enacted since 1994 in Canada, New Zealand, the United Kingdom, Japan, South Africa and the United Nations secretariat.

There is now broad acceptance in Australia of a public interest justification for effective and practical protection of responsible whistleblowers and for whistleblowing activity by public officials and others occupying positions of trust. There appears to be no serious suggestion in any quarter that those who genuinely disclose official corruption, fraud, theft, criminal conduct, abuse of office, serious threat to public health and safety, official misconduct, maladministration or avoidable wastage of public resources should not receive protection from retaliation by those involved. On the contrary, organisations which fail to protect genuine whistleblowers and permit or take reprisal action against them usually face severe censure. However, incredibly, until now in the Australian government sector the issue of protection of whistleblowers has remained an open question for no apparent reason. The Australian Public Service lacks adequate statutory provisions protecting public servants despite numerous formal inquiries, a significant number of noteworthy cases and eventually, in 1999, the provision of minimal protections in the Public Service Act for a very limited form of whistleblowing activity.

During my time working for the United Nations, I was involved in setting up a UN Ethics Office in New York, putting in place standards and programs to reinforce a culture of integrity, to enhance transparency and accountability and to restore public faith in the organisation. The UN needed to apply to itself the very global standards whose setting it had facilitated, especially in the light of the public perception of corruption in UN agencies arising from the oil for food investigation. The new measures included new financial disclosure policies, conflict of interest provisions, training, advice, standard-setting functions and, importantly, whistleblower protection. The primary focus of the Ethics Office was not intended as another layer of policing for the organisation, which already had an Office of Internal Oversight Services, but as a resource to which staff could turn for advice on ethical issues, such as potential or actual conflicts of interest, and for whistleblower protection.

Whistleblower protection is actually a measure of last resort. External whistleblowing is an indicator of a failure of ethics. There is something wrong within the workplace integrity system if a person who has concerns about wrongdoing is not able to have those concerns addressed internally without fear of the consequences. Ultimately you want to achieve a situation where whistleblowing as such is not necessary because there exists in the workplace a culture that encourages people to raise their concerns as a normal part of their duties. Until that situation exists, however, whistleblower protection will be necessary.

Public debate about the responsibilities of governments and public officials, and in particular about what we should expect by way of accountability, integrity and ethics, is crucial to the health of Australian democracy, and I am delighted that this discussion is taking place within government, within the parliament and within civil society. Some people think that we do not really need to have a discussion about accountability in Australia, as corruption in government and unethical conduct by public servants only happen ‘out there’, in other, less developed, less democratic and less well-regulated countries. Aside from being untrue, this argument misses what is for me an essential issue: accountability is all about the uses of power and is especially about the delegated power which is exercised by officials away from public scrutiny. There is a fundamental duty for public officials at all levels to account for how power was exercised to those who are not in a position to check for themselves that it was, in fact, exercised fairly, lawfully and legitimately. Establishing formal responsibility for accountability in public office is, of course, only part of the task. Putting formal responsibility into practice is the real challenge.

From time to time there have been signs that our public institutions are failing in this challenge. Probably our biggest integrity failure of all resulted in the colossal scandal of the Australian Wheat Board, which in 2006 emerged as the single largest source of kickbacks to Saddam Hussein’s regime, to the tune of $290 million through fraud on the UN’s oil for food program. This episode stood as a stark indicator that there was something seriously amiss in our accountability framework, not least because those involved continued to characterise and justify their behaviour as the cost of doing business rather than recognising and naming it, as Commissioner Terrence Cole did, as a failure of ethics at the most fundamental level. In my view, the acquiescence and deceptive conduct by some parts of the Public Service and by relevant ministers and their staff during this period, which continued for years, indicates that the problem was not confined to a lack of corporate ethics. It showed an irresponsible failure on the part of those involved to recognise that the AWB’s interests were not the only interests to be considered and that failure to take account of broader public interest concerns would ultimately become a matter for public accountability and justification. As a result, Australia’s international reputation was severely damaged.

I believe that author Catherine Aird could have been referring to the Australian Wheat Board when she said, ‘If you can’t be a good example, then you’ll just have to serve as a horrible warning.’ Other horrible warnings during the past decade have included the children overboard episode and Australia’s abandonment of the international rule of law through its participation in the Iraq war, to name a couple. Within each of these incidents, there were public servants and others who had severe doubts about the legitimacy of the government’s actions or, worse, knew that they were wrong but were afraid to speak out. I note that this committee received over 70 submissions and heard from more than 70 witnesses. The level of public engagement on this issue shows that there is an urgent need for legislation in this area.

My own submission to this inquiry argued for the passing of a public interest disclosures act and for such an act to cover all public sector staff, including the staff of members of parliament and non-Commonwealth employees working for Commonwealth agencies. I commend the committee for recommending a public interest disclosures bill as well as for the types of disclosures and the categories of people recommended for protection. The inclusion of not only Commonwealth Public Service staff but also parliamentary staff, government consultants and contractors is welcome. I also strongly support the role proposed for the Commonwealth Ombudsman. In my role as Chair of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, I welcome the committee’s recommendation that the proposed public interest disclosures bill specifically provide for the Commissioner for Law Enforcement Integrity to be able to investigate public interest disclosures relevant to the commissioner’s area of responsibility. This raises again the crucial issue of adequate resources for these agencies to be able to carry out their roles effectively.

As we follow our colleagues in the states and territories and countries including Canada, New Zealand, the United Kingdom, Japan and South Africa, I hope that we not only enact laws to protect whistleblowers but also administer these laws in a way that makes them effective. What is lacking in the Australian states and territories is not good laws but effective administrative and organisational support for whistleblowers and would-be whistleblowers and more accessible mechanisms for compensation and protection. This was demonstrated by the wide-ranging research project Whistling while they work, a three-year collaborative national research project led by Griffith University.

It is clear from the committee’s report that the discussion of whistleblower protection in Australia does not stop with the introduction and passing of a public interest disclosures bill. The further questions raised in the report of topics outside the direct terms of reference of the committee will need to be addressed by parliament in the coming years. This includes protection from disclosure of wrongdoing in the private sector. Other countries have legislated protection for those working in the private sector, such as the UK Public Interest Disclosure Act 1998, which has proved effective in thousands of cases in both the public sector and the private sector.

Of importance too is the need for education and awareness-raising activities for employees and managers about the values of transparency and accountability which will lead to a changing workplace culture that encourages public interest disclosure with appropriate support mechanisms for whistleblowers. I note that an education and awareness-raising function is intended to be part of the extended role of the Commonwealth Ombudsman, and I welcome the suggestion in the committee’s report. This report has been well received by one of the key stakeholders, the Community and Public Sector Union. The union has commended the report and asked that the relevant legislation be introduced to put the report’s recommendations into law so that public sector workers are no longer forced to make a choice between disclosing matters in the public interest and their job security and careers.

The recommendations contained in the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs are eminently sensible and the reforms are long overdue. I congratulate the committee for its hard work, in particular the chair, the member for Isaacs, and also the Attorney-General, who requested on behalf of the Cabinet Secretary that this inquiry occur. I welcome Minister Faulkner’s commitment to respond quickly to the report and to introduce whistleblower protection legislation in this term of parliament. The government recognises the crucial role both of people and processes in ensuring public confidence in the integrity of our public institutions. Without good institutions good people will fail, and without good people good institutions are ineffective.

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