AJ Brown I 9 August 2022
Published in The Conversation
Last Friday’s twist in the long prosecution of Australian Taxation Office whistleblower Richard Boyle – now headed for its fifth year – brings into relief the serious flaws in our nation’s whistleblowing laws.
Boyle aired his concerns about oppressive debt collection by the ATO in a joint ABC–Fairfax media investigation released in 2018. But he went public only after raising his concerns within the ATO and later with the inspector-general of taxation (IGT).
Various reviews confirmed his complaints under the Public Interest Disclosure Act 2013 – the whistleblower protection law for federal public servants – were reasonable. Despite dismissing his original complaint, the ATO ensured the suspect practices, which it claimed resulted from “miscommunication” and “misunderstanding”, were fixed.
A Senate committee labelled the ATO’s initial investigation into Boyle’s complaint as “superficial”. The IGT found merit in the matters Boyle raised but had no jurisdiction to intervene because it is not a “disclosure recipient” under the 2013 Act.
These events make the Boyle prosecution an important test case. Under the act, the key test of whether he has a defence against charges of making unauthorised recordings and disclosures is whether he believed “on reasonable grounds” the ATO investigation into his first disclosure was “inadequate”.
In Friday’s Kafkaesque twist, the ATO and Commonwealth prosecutors have sought suppression orders to prevent media reporting of Boyle’s efforts to assert that defence, in case it prejudices the trial. (Delays have already pushed the trial itself back to October 2023.) It’s the ultimate illustration of how current public interest disclosure laws can end up undermining their own primary purpose.
Add the time, costs and negative impacts on Boyle’s life and health, the resources invested by the ATO and Commonwealth Director of Public Prosecutions, the case’s impact on the Australian government’s reputation and the messages it sends to other potential whistleblowers, and we see just how badly the federal approach to whistleblowing needs an overhaul.
The law needs urgent reform to ensure that:
The right thresholds are important because it is easy and normal for organisations to not see employees’ actions as covered by whistleblower protections, simply because other disputes and processes are also in train. The whistleblowing complaint might also include an employment dispute, for example, or a policy disagreement. Or other public interest factors – like national security – might need to be weighed up.
In fact, our research shows this complexity is the norm. Our study of more than 17,000 employees across 46 large and small public and private sector organisations found that up to half (47%) of all disclosures involve a mixture of public interest issues and personal grievances. Only 20% were solely “public interest”.
The law needs to be clearer that the other 30%, purely personal grievances, belong in other processes. But clear and properly implemented thresholds are the key to whether most whistleblowers will get any protection at all.
Recently, Labor Attorney-General Mark Dreyfus intervened to stop the prosecution of Canberra lawyer Bernard Collaery for disclosing confidential information about the Australian government’s alleged commercial bugging of the Timor-Leste cabinet room.
But the actual whistleblower in that case – Witness K, the spy who took his internal complaints about the bugging to Collaery – missed out, because he, too, didn’t fit the thresholds. He had already been forced to plead guilty for revealing the wrongdoing because, no matter how heinous the crime, the mere fact it involved national intelligence left him with no chance of a defence at all.
Even if the thresholds are met, what value are current protections?
Prime ministers Malcolm Turnbull and Scott Morrison started to lift the bar in the private sector in 2019, amending the Corporations Act to surpass the 2013 public sector whistleblowing laws in key ways.
But even if the public sector laws catch up, problems remain. A whistleblower can only receive compensation for the personal and professional impacts of their disclosures if those impacts were, in effect, punishment or payback motivated by awareness of a disclosure.
While okay for a criminal offence, that principle means any whistleblower will struggle to secure compensation if the damage flowed from simple negligence, collateral employment actions or breakdowns in organisational support. No whistleblower has yet succeeded in winning such compensation.
And some whistleblowers deserve justice even if the detriment was beyond anyone’s control. In 2017, the Parliamentary Joint Committee on Corporations and Financial Services recommended Australia should establish a reward scheme that would share with the whistleblower some of the penalties imposed on wrongdoers or the money saved thanks to a disclosure, irrespective of fault. The United States and Canada are just two countries with such schemes.
But who would administer such a scheme, or even take on the existing job of ensuring that legal protections for whistleblowers deliver justice, consistently across the public and private sectors? Does anyone have the job of investigating whether a whistleblower was properly treated, or of actively helping federal agencies sort out these often messy cases?
The short answer is no. The Commonwealth ombudsman and the Australian Securities and Investment Commission can require organisations to set up internal disclosure systems, but have little scope, in law or practice, to enforce protections.
The 2017 parliamentary joint committee recommended a whistleblower protection authority or commissioner to fill this stark gap. Since 2018, federal crossbench MPs including Cathy McGowan, Helen Haines, Adam Bandt and Andrew Wilkie have proposed this function be included in the Albanese government’s planned National Anti-Corruption Commission reforms.
This makes sense because the new agency will become the most obvious place in Australia for people to safely take complaints about serious wrongdoing and be listened to, or referred to the right place, with the necessary protections applying.
The need for an agency to coordinate a one-stop-shop process rather than a bureaucratic “pass the parcel” has been identified by no less than four statutory or parliamentary inquiries. These include the 2016 Moss Review and 2017 Senate Select Committee on a National Integrity Commission, but stretches right back to a 1994 Select Committee on Whistleblowing chaired by Tasmanian Liberal Senator Jocelyn Newman.
For Australia to retain its record of pursuing world’s best practice in recognising, managing and protecting the role of whistleblowers, it will be vital for that agenda to include all three major elements of overdue reform.