11. Best-practice whistleblowing legislation for the public sector: the key principles

In Australia, legislative frameworks have long been considered fundamental to encouraging and managing public interest disclosures. Since 1993, almost all Australian jurisdictions have put in place relevant legislation for the public sector, as shown in Table 11.1. In practice, the content of whistleblowing legislation has nevertheless been a vexed issue. Several jurisdictions, including New South Wales, Western Australia and Victoria, have conducted or are conducting major reviews of their legislation, at least partly in response to public doubts about its effectiveness. Bills for new or replacement legislation have been introduced in the Northern Territory and the Australian Capital Territory. At the Commonwealth level, where comprehensive legislation has long been recommended (Senate Select Committee on Public Interest Whistleblowing 1994; McMillan 1994), private member’s bills were introduced, but lapsed, in 2001 and 2007. Most recently, the new Commonwealth Government has committed itself to ‘provide best-practice legislation to encourage and protect public interest disclosure within government’ (ALP 2007).

This chapter distils the major lessons of the present research for current debate about best practice in legislative design. A core reason for the research described throughout this book was to help fill the substantial gap in knowledge as to what a best-practice legislative approach might really be.

In line with this objective, the extensive differences in approach in the existing Australian legislation have already been detailed and compared in an issues paper, Public interest disclosure legislation in Australia: towards the next generation (Brown 2006). That analysis showed that while each existing legislative approach contained at least some elements of current best practice, none contained all such elements, and many approaches were clearly deficient by comparative standards. Since then, the pressure for legislative reform has only increased, while some lessons from international reforms have also become clearer. Endorsing the conclusions reached in that paper, an audit by Irene Moss (2007:57), commissioned by Australia’s Right to Know Committee, also made a case for greater national uniformity. Positively, the feasibility of adopting a simplified, more targeted legislative approach in Australia has been demonstrated by the second of the above Commonwealth bills, the Public Interest Disclosures Bill 2007, introduced by the Australian Democrats, for which the present research and the 2006 issues paper from this project provided ‘the prompt’ (Murray 2007).

To assist the search for best practice, this chapter sets out a new basic guide for the minimum content of Australian public sector whistleblowing legislation, in the form of 13 key principles for best-practice legislation. Much of the logic of these principles is set out in the earlier issues paper and not all will be detailed here. Building on the research from the Whistling While They Work project, this chapter identifies three areas in which there is a need for a significant departure from, or extension of, the approaches contained in current legislation.

First, there is a need for legislation to require the implementation of more effective operational systems for the management of whistleblowing. Historically, the Australian legislative focus has been on legal protection of whistleblowers. Important though that is, the research in this book demonstrates that it is equally important to have effective operational systems for managing whistleblowing as and when it occurs. That requires legislative reform in three areas:

Second, there is a need for legislative reform to address the current lack of practical remedies for public officials whose lives and careers suffer as the result of having made a public interest disclosure. Inevitably, some whistleblowers experience adverse outcomes for which governments should accept responsibility—for reasons of individual and organisational justice and in recognition of the practical need to demonstrate that public interest reporting of wrongdoing is valued. The data indicate that current legislative settings are insufficiently focused on restitution (including financial compensation) as a response to adverse outcomes, as opposed to criminal remedies that are, in any event, inappropriate for the bulk of cases. There is also a need for legislation to better define the legal responsibilities of employers for the welfare of employees, including by providing incentives for public sector managers to be more diligent in exercising their duty of care to prevent and minimise adverse outcomes.

Third, legislative reform is needed to provide better protection for public officials who justifiably go public with their concerns. While the research has confirmed that public whistleblowing is statistically infrequent in comparison with internal whistleblowing, it nevertheless does arise and is widely recognised as healthy and sometimes necessary in a mature democracy. Only New South Wales currently has legislative provisions dealing with such circumstances, and then inadequately. The imperative for reopening this aspect of current legislation has been boosted by the Commonwealth Government’s commitment to do so. This chapter sets out principles for how a workable formula might be achieved.

The final part of the chapter sets out the key principles for best-practice whistleblowing legislation as a whole, including those issues dealt with in greater detail in earlier parts. These principles reflect feedback on the most important issues identified in the issues paper, the lessons of the empirical research and previous reviews from the academic literature (for example, Latimer 2002a). As with the remainder of this research, these principles have been developed with the public sector in mind, also recognising that in Australia it is the public sector that has had greatest experience to date with statutory public interest disclosure regimes. It could be, however, that these principles can be readily adapted to the private and civil society sectors.