Can the delicate whistleblower flower bloom?

by Chris Griffith
Published 29 November 1992 in The Sun-Herald


my face


Whistleblowers' protection legislation, to be enacted next year, is very much the delicate flower of Fitzgerald report recommended reforms.

Just ask Nigel Powell, the former Licencing Branch detective whose whistleblowing work with Phil Dickie and the ABC's Four Corners' led to the Fitzgerald Inquiry.

Of course Powell, who is now an education and public relations officer with the Independent Commission Against Corruption in NSW, must be wondering whether he was whistling into the wind with the passing this week of Queensland's new prostitution laws.

Nevertheless in 1990 the Goss Government enacted interim whistleblowers' protection legislation to protect from reprisals citizens who provide information to the Criminal Justice Commission (CJC) and the Electoral and Administrative Review Commission (EARC).

Next year the Government will consider the more comprehensive model recommended after a review by EARC completed in October 1991 and a report by its governing parliamentary committee in April 1992.

Under EARC's scheme, protection will extend to people who lodge complaints about government departments, corporate and non-corporate entities, and local authorities - in fact any "public sector unit" in Queensland.

Protection will also extend to private sector whistleblowers where disclosure is of public concern; for example employees who expose private companies pumping out toxic waste into the atmosphere and rivers.

Whistleblowing will therefore not only include disclosures of official misconduct or illegal activities, but also negligence, incompetence, inefficient management, dangers to health and safety, and dangers to the environment.

It was expected the Goss Government would enact whistleblowers this year, however it will delay its deliberations until February 1993 after EARC's governing parliamentary committee has considered an overlapping report on codes of conduct for public officials.

The Government says it will consider its response to both reports together.

Of course, there are already complaint and grievance mechanisms throughout the public sector, and citizens have an unqualified right to report alleged wrongdoing to the Police, the CJC, and a plethora of state and federal parliamentary committees, commissions, and tribunals.

However whistleblowers' legislation will provide protection and compensation against recrimination and even defamation where the disclosures are made in good faith to the appropriate authorities and, public safety matters aside, are not aired publicly.

This protection is particularly important for public servants who may face threats, social ostracism, long-term subtle campaigns of discriminations, or simply find their careers ruined after making a disclosure.

Where necessary whistleblowers will be given years of support and gain special transfers under a clause which over-rides normal PSMC selection and appointment procedures. Conversely, those convicted of reprisals against whistleblowers will face up to three years prison.

Yet this delicate flower, while good in theory, could collapse and wilt should this protective shield fail and even one whistleblower be seen to be "got at".

Criminologist Professor Paul Wilson says the ability to protect whistleblowers is "absolutely critical" to the scheme being taken seriously.

"I have known whistleblowers in this state who have come out and been savaged, absolutely savaged," he said. "Unless whistleblowers have full faith in the system, and believe that they will be supported, you can give whistleblowing away."

This view is supported by Dr William De Maria, a Social Work lecturer at the University of Queensland and a member of the Commonwealth Administrative Appeals Tribunal (AAT), who says retaliation is just one problem whistleblowers face.

Dr De Maria should know. He claims the tag of whistleblower himself.

He says in 1990 he published an article in a legal bulletin critical of the AAT. A case he was involved in was then de-listed from further hearings at the AAT, reinstated after a public fuss, then several months later de-listed again.

"People feel that a quick, candid comment to me in the lift going up to the 21st floor could find itself on the front page of the paper the next day," he said. "There's a sense of suspicion that I walk around with four tape recorders constantly in gear."

Dr De Maria has just finished a paper on whistleblowing called "Sterilising the Lone Crusader", which says individuals are too vulnerable to fight singlehandedly institutionalised corruption. He says the fight against corruption is better achieved through collective processes of dissent within organisations, as has occurred with the drive for social change and equal opportunity since the 1960s.

In Queensland the success of whistleblowers law will depend on potential whistleblowers' confidence in the organisations they disclose to, and the measures designed to safeguard them. EARC's proposal, if implemented, would allow whistleblowing to any public sector unit. A unit would investigate a disclosure or forward it to another, more appropriate authority.

In addition the CJC would be empowered to accept any public interest disclosure. The Commission would then decide which bureaucracy could best investigate the disclosure and where necessary would investigate complaints not dealt with conclusively elsewhere.

Whistleblowers would also be entitled to seek redress against victimisation in the Courts as well as protection from a variety of agencies. Yet it is unclear whether the Goss Government will adopt EARC's model.

For example, some senior bureaucrats believe the CJC may not be the most appropriate co-ordination authority. They suggest the protection unit could be combined with the Office of Public Sector Ethics recommended in EARC's codes of conduct report. This would establish whistleblowers protection as a separate statutory entity within the PSMC.

In the end, potential whistleblowers must have confidence in any protection authority if the government seriously wants whistleblowers protection to work.

Meanwhile, the Federal Government is planning cash rewards for whistleblowers in its proposed Financial Management and Accountability Bill, expected before Parliament in Autumn. Cash rewards will be available to those who report fraud and larceny against the Commonwealth on matters such as tax evasion, welfare cheating, or dubious contractual matters.

Federal ministers will be empowered to reward up to 50 percent of the monies involved provided the offenders are apprehended, convicted of fraud, and the monies recovered.

Whether this is a good development is arguable. On the one hand, anything that reduces the rorting at federal level is welcome, on the other it is akin to bribing society into honesty.

EARC considered and rejected rewards for Queensland, saying they would be contrary to the development of ethical standards in society, one of the aims of whistleblowers legislation.