Jason Falinski (Mackellar, Liberal Party) Share this | Hansard source

Senator John Williams has been known to eat lunch and, indeed, have it bought for him. The important thing about what the corporations committee did early in 2017—one of the first inquiries when I came to this place—was to have an inquiry into whistleblower legislation. It was interesting inquiry because I had not really considered it in-depth until that point in time or considered the benefits and costs of not having whistleblower legislation. Certainly, there are the benefits I have highlighted. There is more to be highlighted in this piece of legislation in front of us, as to protecting people.

There was a particular professor—Professor AJ Brown, who is from a Queensland university—who was very knowledgeable and, more importantly, very wise on this issue. I thought he posed some important questions to us. One was whether we should have an omnibus or a single point of protection for people who wish to make a whistleblower claim. In discussing that, I actually ended up disagreeing with him, and this legislation points to why. In a legislative approach, having competing legislation actually ensures that we can test different provisions and we can determine whether those provisions are being used or abused.

For example, in the United States, Abraham Lincoln—one of my favourite political leaders and certainly one of the wisest who I've read about—introduced a piece of whistleblower legislation that talked about how if you called out a piece of corruption then you, as the whistleblower, were entitled to a percentage of the damage that that was doing. The result of this in the United States—being the United States—has been that people and, in particular, law firms have industrialised this and created economies of scale. What you have are private companies being constantly bombarded with claims of corruption by whistleblowers because what they're really after is the 10 or 20 per cent pay-off from the quantum of the alleged corruption.

This has made the whistleblower legislation in the United States very contentious, because people claim that whistleblowers are not coming to the table with clean hands. They claim that whistleblowers are not, despite claims to the adverse, coming to the table with pure motives and that some are motivated by financial pay-off. Some law firms have used such provisions to ensure that people get paid out rather than taking it to court. It is important that this legislation, and Australian legislation, does not go down that avenue does not go down that avenue. What it would do is not create an avenue where corruption and aberrant behaviour was being called out increasingly, but it may in fact create an industrial-scale assault on institutions—government, political and charitable—where you will find that there are people who are not doing what is right.

One of the other points that Professor AJ Brown made, which has stayed with me and I see as encapsulated in this legislation, is that when you see—in another institution—high-profile whistleblowers standing up on merit against corruption and against aberrant behaviour it sends a shock through the cultural institutions across a society. One would have to think—and there have been many fine speeches in this chamber—about some of the corruption and some of the aberrant behaviour in our charitable organisations and, indeed, in some of our churches. There has been a royal commission into that. Many of those crimes—because they were crimes—took place in a time and a place in Australia where it was not seen as appropriate, or not seen as the done thing, to dob on your mate or to call out corruption.

We, as a parliament, must always make it clear that calling out corruption, no matter at what level, and calling out aberrant behaviour, no matter at what level, is part of our Australian culture. When you do it, it protects the institutions on which so many Australians rely and trust. I'm told that, when you look at modern opinion polls, trust in institutions in our contemporary society is much lower than it was at other times in our society. I've always found this to be a matter of irony, because I think that our institutions now are more transparent than they used to be and are certainly less capable of being corrupted than they used to be. When I say irony, as the Speaker would prefer I think of a sense of 'ironical', because what we have is a situation in which these sorts of bills and this sort of legislation ensure that, wherever you are, you can undertake and be clear that where there is aberrant behaviour you can report it and you will be protected in making that report. But it is also important that we must never—we don't do this, but I know some of those opposite are advocating for it—reward a person for making a report. The minute you do that, you introduce a new motive into the system which, of course, creates doubt as to what was motivating that person to make a report.

In the Commonwealth, we've had numerous cases with CommInsure where people made claims and had those claims upheld. One, famously, was for a person who went to a conference overnight, was booked into a hotel room and, during an act of great excitement, managed to bang her head on a lamp. At the Administrative Appeals Tribunal, they found that CommInsure was liable for that person's damages, hurt and injury, because the person was, essentially, there for work. I think most people would say that doesn't pass the pub test. I would say that wanting a bunch of drunk people testing you is quizzical. I don't quite understand why we have the pub test in Australia; I thought you'd want sober people to be judging what you're doing, but, apparently not. Anyway, some people would claim it doesn't meet the pub test: people going on a work function, behaving irresponsibly and then somehow making their employer responsible for their behaviour.

In New South Wales, we have very similar whistleblower legislation to this at the state government level. What we have found is that that legislation has been misused. Effectively, where it's been misused is by employees, who, when a manager calls them in and informs them that they will be performance managed because they are not undertaking their role as required by their employment contract, normally—or not normally, but there have been many instances—instead claim whistleblower protection. Therefore, the performance management must then go on hold while this is investigated for 12 to 24 months. It is important that whatever legislation we put in place achieves the purpose that it was put there for, and is not misused by those who would seek to use it for other reasons.

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