Whistleblower bill risks new fight
- From:The Australian
- March 21, 2013
Whistleblower Allan Kessing yesterday: 'If this law meets the test for effectiveness it will have my full endorsement'. Picture: Sam Mooy Source: The Australian
THE federal government is at risk of a second parliamentary stand-off with the independents after Andrew Wilkie revealed he was disappointed with the content of the government's long-delayed scheme to protect whistleblowers.
The scheme, which will be introduced to parliament today by Attorney-General Mark Dreyfus, is aimed at fulfilling a Labor promise to protect public servants who reveal wrongdoing.Mr Wilkie said yesterday he had learned that the government's Public Interest Disclosure Bill imposes extremely strict conditions on the circumstances in which the proposed law would protect public servants who go to the media.
He said he had tried unsuccessfully to persuade the government to support the much stronger protection for whistleblowers in his private member's bill, "including by associating it with the government's media bills".
Mr Wilkie announced yesterday he would not be supporting the remaining parts of the government's plan to regulate the media because those changes were "not accompanied by the essential supporting legislation, in particular a strong Public Interest Disclosure Bill".
He believed members of parliament, their staff and the entire intelligence community had been excluded from the protection extended to others in the public sector who revealed wrongdoing.
And he believed the government's scheme would protect only public servants who revealed wrongdoing to the media in extreme circumstances. This would mean the government's scheme would be unlikely to have protected convicted whistleblower Allan Kessing had it been in force when Mr Kessing was convicted of leaking long-ignored Customs reports on criminality and security flaws at Sydney airport.
"My understanding is that what the government will progress will not pass the Allan Kessing test," Mr Wilkie said. "He would have been protected under my bill."
Mr Dreyfus said the scheme he would introduce today would permit disclosures outside the public service in a range of specified circumstances.
It would follow the approach unveiled by the government in 2010 in its response to a report calling for whistleblower reform.
Under the 2010 plan, the government indicated it would introduce an internal system for handling public interest complaints within the bureaucracy, which would involve every agency in the federal public service. If that system failed to address concerns about serious matters in a "reasonable" time, public servants would be given legal protection if they told the media or anyone else.
The 2010 plan would also protect public servants who bypassed the internal system and went directly to the media with public interest disclosures about serious matters.
Direct approaches to the media would be protected whenever exceptional circumstances existed, in cases where a public servant believed on reasonable grounds there was a "substantial and imminent threat to people's lives, health or safety".
Mr Dreyfus said the government's bill would help encourage disclosure of wrongdoing, which he described as a key part of open and transparent government. "Open and transparent government builds a strong democracy and part of that involves having a culture that involves speaking out against wrongdoing, misconduct and corruption," he said.
While the introduction of federal protection for disclosures of wrongdoing comes too late for Mr Kessing, the whistleblower said yesterday he was not bitter. "If this law meets the test for effectiveness it will have my full endorsement. I will yell its praises from the flagpole of Parliament House," he said.
In his view, a law designed to protect whistleblowers would only be effective if it protected public servants who revealed to the media not just crime and corruption, but wrongdoing that was against the public interest. "The test is whether it protects and encourages - and I emphasise encourage - whistleblowing in the public interest," Mr Kessing said.
He said the bill to be unveiled today should be judged by whether it encouraged disclosures from within the public service that dealt with "incompetence, stupidity and laziness", and not just crime and corruption.
If applied to his own case, that test would have meant this former senior Customs officer might never have been convicted on charges of breaching section 70 of the commonwealth Crimes Act by making an unauthorised disclosure about criminality at Sydney airport.
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