Blowing the Whistle in the Public Sector

In 2003, Andrew Wilkie, who was then a senior government analyst, rocketed into the national consciousness by blowing the whistle on support for military action against Iraq. Wilkie is now a member of federal parliament and has championed protection for whistleblowers, particularly in the public sector.

What the law says

This was enacted by Parliament in 2013 with the aim of closing off any potential loopholes with similar state and territory legislation. The Act applies to Commonwealth employees and public officials who believe that there has been wrongdoing in the Commonwealth public sector. However, it does not apply to public interest disclosures (PIDs) about members of parliament and their staff and does not apply at all to intelligence agencies and materials. Wilkie believes this is a great flaw in the legislation.

The Act aims to:

• Ensure the integrity and accountability of the public sector.
• Encourage PIDs.
• Ensure that officials making PIDs have adequate support and protection.
• Ensure the proper investigation of PIDs.

The Act protects the discloser from disciplinary action and criminal, civil and administrative action. For example, the discloser cannot be sued for defamation in respect of the PID.

How it works

Current and former Commonwealth employees and officials can make PIDs under the Act. PIDs may concern a range of conduct, including:

• Breaking the law.
• Corruption.
• Wasting public funds.
• Endangering health and safety or the environment.
• An abuse of a public official’s position.

A PID must first be made to an authorised person within the relevant Commonwealth agency or department. (This is known as an internal disclosure.) The authorised person must then assess the PID and allocate someone to investigate the matter, if warranted. If there will be no investigation, the discloser must be advised of the reasons. Any investigation must be finalised within 90 days and a report be given to the discloser. The discloser’s identity cannot be revealed without their consent.

The Act will continue to protect the discloser even after the investigation is finalised, but if the discloser has knowingly disclosed false or misleading information, the protections will not apply.

Getting the most out of a PID

The Commonwealth Ombudsman recommends disclosers follow some basic guidelines when making a PID:

• Give clear and accurate information and provide any supporting documents.
• Maintain confidentiality.
• Seek advice about rights and responsibilities.
• Immediately tell the authorised officer about any reprisals.

Government organisations must have:

• Appropriate policies and procedures.
• Adequate training of staff in PID matters.
• A transparent process of investigation.
• Appropriate disciplinary action being taken against a wrongdoer.
• Communication of the outcome of the investigation to the discloser.

These elements also constitute best practice for private organisations in support of whistleblowers.

Going to the police or media

In limited circumstances, the Act will protect a discloser when they have reported the PID to the police or media. They must have first made an internal disclosure, the 90-day time limit must have been unreasonably exceeded and the discloser must have reasonable grounds to believe the investigation or outcome was inadequate. There are also other factors to consider and so an “external” disclosure should only be made after careful consideration.

Nurse Toni Hoffman made an external disclosure to a Queensland Member of Parliament about the activities of surgeon Jayant Patel. Her complaints to hospital administration had not had any effect and she feared more people would die if Patel wasn’t stopped. Her whistleblowing led to the “Doctor Death” saga being headline news nationwide for many years. Patel was imprisoned and is now barred from practising medicine in Australia.

Blowing the whistle on corrupt activity is a difficult decision as there may be reprisals even though legislation protects the discloser. It is a reminder to all organisations, whether public or private, to ensure that there are adequate measures in place to encourage PIDs, to protect disclosers and to properly investigate the allegations. Ultimately, it is in the organisation’s best interests to minimise corruption, poor productivity and other negative behaviours that affect the bottom line and the manner in which the organisation can effectively function.