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Wednesday, 31 August 1994
Page: 625

Senator NEWMAN —I present the report of the Senate Select Committee on Public Interest Whistleblowing entitled In the Public Interest.

  Ordered that the report be printed.

Senator NEWMAN —I move:

  That the Senate take note of the report.

I am very proud to present the report on public interest whistleblowing, particularly as it was established by the Senate on my motion in September last year, because it is a very important national issue and also because the committee has worked so well as a team. Its work has been marked by harmony and cooperation. I am very pleased also to be able to say that the report is unanimous and for that I must give credit to my colleagues Senator Murphy, Senator Chamarette, Senator Calvert, Senator Denman and formerly Senator Beahan in the early stages of the inquiry.

  No committee report can achieve success without very good committee secretariat back-up, and for that I want to thank Elton Humphery, Yvonne Marsh, Sue Irvine, Angela Stanley and Winifred Jurcevic, and also of course the witnesses. We had something like 120 submissions and over 60 people actually gave evidence in person. Without the witnesses, and particularly those who themselves have been involved in whistleblowing, we could not have understood the extent of the problem as well as we have.

  Our work has built on previous inquiries, including the Gibbs committee review of criminal law in 1991, the Standing Committee on Finance and Public Administration reports of 1991 and 1992 and the House of Representatives inquiry on fraud last year, together with commissions of inquiry in Queensland, New South Wales and Western Australia, all of which touched to some degree or other on the issue of whistleblowing.

  We feel that this is clearly an issue whose time has come. But in talking about the mechanics of whistleblowing, the question of legislation and the structure of protection mechanisms, the Senate should bear in mind comments made by Dr Simon Longstaff of the St James Ethics Centre. He said:

In discussing the issue of whistleblowing there is a tendency to lose sight of the fact that our deliberations have a direct bearing on the welfare of individual human beings and, through them, on society at large. It is somewhat paradoxical that in developing systems and procedures that protect whistleblowers one can be seduced by the intellectual challenges of developing technique to such an extent that the human scale of the problem is lost from sight.

We believe that those who have not been sensitised to the issue of whistleblowing can often be sceptical of the motives of whistleblowers. I think it is true to say that committee members developed a much greater understanding and appreciation of the personal issues involved as the inquiry progressed. Witnesses constantly referred to the diminution of the traditional values of ethics, honesty and professional integrity at all levels of society. They pointed out that they see a culture of self-interest and reduced responsibility which has overtaken that of public duty and the greater national interest. It is within that environment that the practice of whistleblowing has steadily grown.

  Who are whistleblowers? Let us not spend time now forming a definition, but they come from diverse socio-economic backgrounds, have a range of educational qualifications and have been described to us as extremely conscientious and, before deciding to blow the whistle, regarded as highly valued employees by their organisation. Often they have been socialised through their family and through the education system to believe in the institutions of the Westminster system such as parliament and bureaucratic accountability.

  Whistleblowers find it difficult to believe and accept that they should receive an adverse reaction to their disclosure. Sometimes people become whistleblowers by accident—being in the wrong place at the right time. Sometimes they do not realise they are involved until it is too late, and they are not aware that they have become whistleblowers until they suffer a detriment from the organisation. They may also be motivated by personal benefit or malice or ill-will. But we believe that disclosures made in good faith with the best of intentions may sometimes also be based on little more than supposition or innuendo and can have serious impact on other people and property. It is quite feasible that a factual disclosure could be made with malicious intent but, irrespective of the motivation, that disclosure would still warrant an investigation.

  People often begin by using internal mechanisms to report their problems and then find that the system turns on them. They may be ostracised by their colleagues. They may be made artificially redundant. They may find that the initial inquiry, if it is flawed, is a problem from which they never recover because any subsequent investigations tend not to go back behind the original investigation so, therefore, all further reports are likely to be defective.

  The personal cost to the whistleblower is enormous. There can be loss of career and employment prospects, financial loss, damage to personal and professional reputation, protracted legal processes and damage to personal life, including loss of spouse or partner, family, friends and health. The whistleblower is accused of diminished work performance, personality faults and psychological imbalance. Through a process of victimisation and harassment, the whistleblower is shunned by previously supportive and friendly work mates. I could go on and on. The report elaborates on these areas to a great degree, but in the limited time available I want to move on to some other areas.

  We were asked: Is there a need for legislation? We have come firmly to the view that there is and that national legislation is required such as will cover the field as widely as possible. We recognise the constitutional limitations which mean that in some areas it will be necessary to have complementary state legislation. In some areas it may be necessary for industries to provide mechanisms for employees in the private sector because we have come firmly to the view that it is not just appropriate to provide for a more ethical public sector; it is important, in light of the past, to also cover the private sector.

  I will just draw the attention of honourable senators to the sorts of problems that whistleblowers are able to delineate. The Commonwealth alone spends something like $9 billion annually on goods and services. Opportunities for fraud exist in those areas. We have had Department of Social Security officials—11 of them in the past year—charged with fraud against their department at a cost of something between $2 million and $3 million.

  We have had evidence given to us about corruption in academia. We have had evidence given to us as to the massive losses that have taken place in the banks of Australia, the financial institutions and in corporate Australia. Companies that have failed may not have if, perhaps, there had been a whistleblower who had a satisfactory method of reporting those losses to shareholders and to people involved in the private sector as well as to the taxpayer, who is concerned about losses in the public sector. These things could have been redressed.

  We have had a lot of evidence also about the need for whistleblowing in the police forces, so we welcome the establishment of the royal commission investigating the New South Wales police service, which will give particular attention to internal investigations and the internal informers' policy. We are concerned too about the remarks made by the Human Rights Commissioner, Mr Burdekin, in his national inquiry into the human rights of people with mental illness. He pointed out the difficulty of getting people, who did not want to be identified, to give evidence, which they wanted to be in camera, because of fear of reprisals from employers or colleagues. The patients and the carers were the people who genuinely felt themselves to be in considerable danger if they gave evidence to his inquiry and he felt that there was a need for enhanced whistleblower protection mechanisms.

  We were pleased to know that the Attorney-General's Department, the Public Service Commission and a number of Commonwealth bodies recommended that we should move to legislating for whistleblower protection. I have some difficulty in trying to select the important points to bring to the attention of honourable senators in the limited time available.

  We have opted for a small, independent agency to take the oversight of all matters relating to whistleblowing. We do not want to have a burgeoning, costly monster. (Extension of time granted) We are concerned not to make an expensive monster, for the taxpayer to fund, to deal with this problem. We do believe that some of the existing mechanisms can be used, provided an independent organisation is there to act as a protector, if you like, of the whistleblowers in both the public and the private sectors.

  We also point out that counselling of whistleblowers has to be one of the most important things that we could do in a national scheme. We have looked at a model which is already in operation in the United Kingdom run by a body called Public Concern at Work. They can advise whistleblowers before they blow the whistle as to whether to, or how to, and to whom, and they can stand by them to cope with any fallout from their having blown the whistle. Such an organisation needs to be funded fairly independently of government by contributions from the corporate world, perhaps from unions as well as governments, as well as from philanthropic citizens; and it needs to be administered by a totally independent board.

  We also believe that the public interest disclosures agency which we propose should be established should be also under the administration of an independent board which would have representatives of the parliament as well as other people; should report annually to parliament; and should also be able to bring special reports, as the need arose, to the parliament, on which reports action would be required.

  Some people have concerns about disclosure to the media, and we have canvassed that issue fairly carefully in our report. We believe that people should be able to go to the media in certain circumstances and still get the protection of the legislation that we propose, but they will need to have assured themselves before they do it, from advice and counselling, as to what their position will be.

  There is also an issue which the Gibbs committee has addressed in the past, that is, the question of disclosure of information in areas such as the defence and intelligence gathering world. We have agreed with the Gibbs and Elliott committees that, given the sensitive nature of that sort of information, in order for a whistleblower to be exempt from any relevant secrecy provisions, the disclosure should be made to the Inspector-General of Intelligence and Security.

  We have tried to define a whistleblower and the act of whistleblowing in as wide a term as possible. I will not go into those now. There have been different definitions of whistleblowing going around, but we do believe that, in order to contain costs, it is important that small or frivolous matters should be screened out first and forwarded to alternative mechanisms for investigation. They should not just drop through the cracks, but they are not properly the concern of a public interest disclosures agency, which is designed to deal with matters of real substance, gross maladministration and corruption—things of that kind.

  We believe that whistleblowing is a legitimate form of action within a democracy and that there are and have been, and will continue to be, occasions on which whistleblowing is the only available avenue for the concerned, ethical citizen to expose wrongdoing in the public or the private sector. We appreciate that legislation is not enough and it will not of itself do the job. We do believe that there needs to be a shift in traditional workplace values and ethics. Legislation needs to be accompanied by national leadership at the political level, at the workplace level, from corporate Australia and from the unions as well. It should be accompanied by an education program specifically targeted at workplace ethics.

  I rejoice in the unanimous nature of this report because it is a vital national issue. It is one which requires action in the public interest. This report deserves careful study. Many complex and delicate issues have been studied. I commend the report to the Senate.