By Chris Knaus, originally published in the Guardian 30th October 2019.
Public servants should be legally compelled to report misconduct and face punishment for failing to do so, a group of former judges and integrity experts say.
The recommendation is one of a series of urgent reforms needed to improve government integrity, strengthen accountability bodies and address flaws in the whistleblowing regime, according to a paper released by the Centre for Public Integrity on Tuesday.
The paper adds to a growing push for major reforms to whistleblowing laws in Australia, which have repeatedly failed to prevent reprisals against those who speak out.
A rare coalition of media groups have united through the the Right to Know campaign to call for reform and one of Australia’s leading integrity experts, Griffith University’s AJ Brown, on Saturday delivered a blueprint for the creation of a genuine national whistleblower protection regime.
The Centre for Public Integrity on Tuesday called for laws to require mandatory reporting of public sector misconduct to a federal anti-corruption commission. The requirement must be accompanied by a strong integrity commission and consequences for failing to report, it said.
The centre’s chairman Anthony Whealy, a former NSW supreme court judge, said the government’s current proposal allows for referrals only from departmental or agency heads.
That, he said, creates obvious conflicts if misconduct is occurring at the higher ranks of the agency.
Whealy said complaints from lower-ranking public servants were often not acted upon by their superiors.
“What we know normally is the complaint gets shelved, the whistleblower gets ostracised, the whistleblower gets sacked, and the complaint goes nowhere,” Whealy said.
The mandatory reporting requirement would likely lead to large volumes of complaints to a federal integrity body. But Whealy said integrity commissions were well-placed to sift through the complaints and determine which were genuine.
“It’s the one that matters that they’ve got to be able to receive,” he said. “I don’t even think we should call them whistleblowers to be honest, we should call them public servants who are simply doing their duty.”
The call comes days after Brown delivered a stark warning about the state of Australia’s whistleblowing laws during his Henry Parkes oration. Brown said the recent raids on the ABC and News Corp had shocked the world and represented regressive steps in Australia’s openness and transparency.
“These events confirmed, more dramatically than before, that alongside all our trends towards more open and accountable government, we have also experienced powerful counter-trends that undermine those advances, increasingly threatening both the health of our democracy and its long-held reputation,” he said.
Brown outlined a seven-point plan for restoring public confidence in federal whistleblower protections, which included a “comprehensive overhaul or replacement” of public sector whistleblowing legislation.
He also advocated for reforms to make it simpler for whistleblowers to speak out about misconduct outside of official channels, an option that, under the current system, has led to the prosecution of numerous whistleblowers, including Witness K and Bernard Collaery.
Brown also called for better support to whistleblowers, including through the establishment of a whistleblower authority, a greater role for the commonwealth ombudsman, and consideration of a rewards scheme for those who speak out.
The government should also make it easier to blow the whistle on intelligence and national security matters if it meets a simplified public interest test and and poses “no actual, real, unacceptable risk of harm to national security, defence or law enforcement interests”.
Brown said he continued to have sympathy for threats against journalists and press freedom.
“But importantly, in Australia at least, the threat of criminal prosecutions against journalists is still mainly just that: a cross-fire,” he said.
“The primary targets – intended and sometimes unintended – are actually the employees, officials and everyday citizens who might, and do, speak up with concerns about wrongdoing in their organisations.”
Former counsel assisting at the NSW Independent Commission Against Corruption, Geoffrey Watson, said accountability institutions across the country – including the audit office, state anti-corruption commissions, journalists and the public service – were under attack in Australia.
“The prosecution of journalists, the cutting of Icac’s powers, and the personal attacks faced by senior integrity officials are all part of a bigger picture of our accountability institutions being undermined,” Watson said.