Federal Whistleblowing Legislation

Revised Legislation is Pending

At the time of writing, notice has been provided that whistleblower protection legislation is to be reformed in the Federal/Commonwealth jurisdiction.

A rewrite of this section may thus be merited once the terms of this reformed legislation have been enacted and tested by whistleblowers.

Comments here are offered on the pre-November 2016 legislation as whistleblowers have come to understand and experience that legislation.

The Sword and the Shield

The legislation, as it existed prior to 2013, had the elements of the Sword and the Shield structure advocated by the whistleblower groups of Australia. This was because the Shield function (the protection of whistleblowers) rested with the Fair Work Commission rather than with the Sword bodies such as the Office of the Ombudsman.

This structure was also in compliance with the Australian Standard on Whistleblowing, and such compliance is understood to have been the force behind structuring whistleblower protection in that way.

In Queensland, however, an advocacy effort convinced the Federal Government in 2013 to assign responsibility for whistleblower protection to the Office of the Ombudsman. This separation of the Sword and Shield function became compromised.

The Fair Work Commission still has a role, so some residual benefit may remain, but the basis for truly effective whistleblower legislation may have been lost.

Withdrawal from the Role as the Reviewer of Last Resort

It appears that the pressure of ever increasing complaint loads may have caused the Office of the Ombudsman to significantly abandon a major part of its original role as 'the Reviewer of Last Resort.'

This Office refers three out of four complaints against agencies back to the agencies to investigate themselves. Purportedly, in order to justify this abandonment, various rationales have been put forward by the Office, both at the macro level of Office strategy, and also at the micro level of dismissing complaints.

At the Macro level, the Office has promoted itself for its efforts at prevention by working with agencies to improve their procedures. The most controversial, if not notorious, of these partnerships has been with Defence.

This prevention role has long been the province of the Public Service Commission and equivalents, such that now there are two agencies on the preventative role and no agency adopting the authoritative role designated as 'the Reviewer of Last Resort'.

At the Micro level, several rationales and/or tactics may have been applied. One may have been to tell the current applicant that the Office has been taking a long term view with the agency at issue, and was not going to affect that process by assisting the applicant at that stage of the long term plan.

A different tactic may have been simply not to address the issue where the case against the agency is strong, as though the complaint had not been raised in the first place. This tactic forces the applicant either to walk away from the original complaint or to make a complaint about the Office of the Ombudsman.

The second application means that there are two complaints made against the Commonwealth, not one, and this can be sufficient for the Office of the Ombudsman and/or the agency to raise adverse psychological aspects about the whistleblower’s behaviour.

It has been alleged that, once that complaint against the Ombudsman has been made, the whistleblower’s name may then have been placed within a category of complainant on a national database.

The Commonwealth Ombudsman’s Office has been promoting a national database on complainants with other watchdog authorities.

Further, the Office may have conducted and promoted, within agencies, workshops on how agency HR operatives can deal with particular categories of whistleblowers and other complainants who decide not to walk away from their original application, but to whom the Office and/or the agencies may then have attributed adverse characterisations due to the whistleblower's persistence.

The Office’s tactic, if the relevant procedures alleged are real, demonstrates a flaw in the prevention strategy.

No matter how finely tuned the procedure introduced into the agency may be, if the agency and the Office ignore the procedure, there then has been no gain. Consequently, the new procedure and the existing procedure both have the potential to adversely impact on providing justice to the whistleblower – this is because it is not any flaw in the procedure that is a cause for complaint, it is rather that neither procedure is being followed by the agency.

On the other side, the systemic immunity thereby gained by (alleged) wrongdoers may likely only encourage wrongdoing in both the short and also the long term.

Both the strategy and the tactic, if proven, are a direct attack upon the purpose of the Public Interest Disclosure Act 2013 (PID 2013), which purports to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector.

The strategy and the tactic by the Ombudsman Office are effecting a premature and/or unwarranted closedown on disclosures and investigations, thereby neutering the purposes that the PID 2013 legislation is designed to facilitate.

Comments

Against these overview descriptions (partly based on allegations as yet unaddressed), some comments and notes on the provisions of the legislation are offered.

s6 Objects. The fourth object is to ensure that disclosures by public officials are properly investigated and dealt with. These last three words can legitimise the slippery track by which disclosures may be dealt with but not be investigated, and the claim may be made that the failure to investigate is in accordance with the legislation.

s8 Definitions provide a definition of ‘internal disclosure’ but not of the ‘external disclosure’, a more dangerous avenue for the whistleblower. The lack of a comprehensive-cum-inclusive definition can discourage the potential whistleblower from this path.

s13 defines a reprisal in terms of actions taken by an individual. The more dangerous situation, where it is the organisation that is effecting the reprisal against the whistleblower, is not contemplated by the Act. It is therefore open to argue that this flaw in the comprehensiveness of the definition tends to render the Act largely irrelevant in regard to whistleblower protection.

s13(3) and s14(2) facilitates the taking of a reprisal by the organisation, by allowing the organisation to take administrative action that is reasonable to protect the whistleblower from detriment. So in one case it has been alleged that the agency suspended without pay a whistleblower for in excess of a year, with directions that the whistleblower was not to enter the workplace or attempt to contact any officer of the agency during work hours or outside of work hours, and this was justified in part - allegedly with the Ombudsman’s clearance - by the fact that this would prevent reprisals against the whistleblower.

s14 Compensation may not set out the onus of proof carried by the parties in an action for compensation. WARNING: It is advisable to obtain legal advice on this, as precedents from earlier cases (if there are any) may be instructive.

s22 defines the interaction between the PID Act and the Fair Work Act regarding whistleblower protection. Without any allegations now held, but just from a trust issue and a discipline of managing risk, it is advisable to obtain legal advice on this interaction if the venue through the Fair Work Act is to be used.

s26 allows external disclosures and emergency disclosures to be made in circumstances wider than those applying to internal disclosures.

s28 allows for a disclosure to be made even though the disclosure is made without use of the whistleblower terminology or references to the PID Act.

s47 uses definite language to purport that disclosures must be investigated, but s48 provides a list of discretions by which an investigation can be avoided. In a case of systemic corruption, s47(1) directs that the allegedly corrupted agency must investigate. When the whistleblower seeks a review from the Ombudsman’s Office of an allegedly self-serving ‘investigation’ lacking thoroughness, fairness and/or impartiality, the Office can use s48(1)(e) discretion to refuse a review on the basis that there is already a completed investigation by the agency against which corruption is alleged.

s49 excuses watchdog authorities with their own investigative powers from compliance with the PID Act regarding the investigation.

s51 requires that a report of the investigation be given to the whistleblower. It is not clear however that the whistleblower will be shown the evidence and statements of evidence considered by the investigation. Where this is not the case, the whistleblower is required to trust that the investigation is a fair report of the evidence provided. This plainly is a risk to the whistleblower in situations of alleged systemic corruption where the allegedly corrupted agency has conducted the investigation. QWAG has seen a case where allegedly the statements of evidence from witnesses were denied to the whistleblower, and the report was caught out allegedly for misreporting the contents of the statements on a substantial matter of an alleged physical threat.

s52 sets time limits for investigations. Three months is quoted, but s52(3) allows the Ombudsman to extend the time limit by a period in excess of 90 days. The Office of the Ombudsman has allegedly taken a year to decide to refuse to act on a disclosure, and to have accepted justifications by agencies for taking more than five years to complete investigations. Effectively, this tends to mean that there is no time limit to investigations. This is just another aspect of procedure that agencies and the Office of the Ombudsman ignore or treat as unimportant or unenforceable behind the exercise of a so-called "discretion".

It should be remembered in this relevant context that the High Court has ruled on how a so-called "statutory discretion" must be exercised. French CJ cited Kitto J words in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 (28 May 1965) at 89 who, in turn, referred to Sharp v Wakefield [1891] AC 173: (Quote)

"...a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion, according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself".

s53 allows investigations to be conducted as the agency thinks fit and proper. This provision allegedly has allowed investigations to avoid evidence, or to show wilful blindness to disclosures, if the agency thinks this is fit and proper.

s54 allows investigations to adopt the findings of other investigations. Where one whistleblower was able to cause an investigation to be put aside because of demonstrated and perceived bias by the investigation officer, the re-investigation adopted findings of the previous investigation affected by the accepted bias.

s59(3)(a) requires that the principal officer of an agency must take reasonable steps to protect public officials who belong to the agency from detriment, or threats of detriment, relating to PIDs by those public officials. As explained previously, in practice, with the acceptance or non-interference of the Office of the Ombudsman, reasonable steps may include suspension without pay of the whistleblower and banning of the whistleblower from all contact with work colleagues for periods in excess of a year.

s62 and s64 are among the provisions that give oversight of whistleblower protection to the Office of the Ombudsman. One function is the setting of standards for procedures such as the conduct of investigations. The flaw with this function, as explained earlier, is the propensity alleged by whistleblowers for the Office of the Ombudsman to ignore or accept breaches of the provisions of the legislation, let alone breaches of any standards written by the Office of the Ombudsman.

The experience and the allegations of whistleblowers provide information tending to show that the PID Act and its implementation by agencies and responsible watchdog authorities may be characterised by insincerity.

s78(c) may be the mark that goes to the character of the PID Act. It allows liability for any detriment imposed upon a whistleblower to be avoided by the agency where the agency has acted in “good faith”. This good faith exception has allegedly allowed agencies to impose reprisals upon whistleblowers based on internally generated, rogue legal opinions that are incorrect in the law. Basing the reprisal on the legal advice, albeit that the legal advice is erroneous, may have allegedly been taken as acting in “good faith”, where the law determined by the High Court is that ignorance of the law is no excuse for a criminal act (See Ostrowski v Palmer). This application of the legislation as alleged may thus be a demonstration of legislation being designed and used to get around the stated intent of the law, so as to render reprisals against whistleblowers as available to agencies with immunity from liability.