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Senate Select Committee on Public Interest Whistleblowing report recommends national legislation to protect whistleblowers and provide a means of investigating complaints

KIEREN MCLEONARD: First, we'll go to the work of the Senate's Public Interest Whistleblowing Committee and its investigation into whistleblowing in Australia. The committee's report was handed down in Parliament in the last sitting, the findings unanimous, after taking 120 submissions and hearing evidence from 60 people over the past 12 months. It's a touchy topic, whistleblowing, exposing corruption, fraud and maladministration, as the Senate committee members discovered.

Liberal Senator, Jocelyn Newman, the head of the inquiry, told the Senate the issue often raises questions about motives.

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JOCELYN NEWMAN: We believe that those who have not been sensitised to the issue of whistleblowing can often be sceptical of the motives of whistleblowers, and I think it's true to say that the members of the committee have developed a much greater understanding and appreciation of the personal issues involved as the inquiry progressed. Witnesses have constantly referred to the diminution of the traditional values of ethics, honesty and professional integrity at all levels of society. They've 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. And it's within that environment that the practice of whistleblowing has steadily grown.

KIEREN MCLEONARD: Senator Newman pointed out the cost of blowing the whistle, which is not just borne by the person who's decided to report misdeeds.

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JOCELYN NEWMAN: People often begin by using internal mechanisms to report their problems and then find that the system turns on them; they are ostracised by their colleagues, they can be made artificially redundant, they find that the initial inquiry, if it's flawed, is a problem from which they never recover because any subsequent investigations tend not to go back behind the original investigation, and so therefore all further reports are likely to be defective. The personal cost to the whistleblower is enormous, as I say. There can be loss of career, 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 treated by being accused of diminished work performance, complaints about personality faults, psychological imbalance, and through a process of victimisation and harassment, the whistleblower is shunned by a previously supportive and friendly workmates.

KIEREN MCLEONARD: The committee's report has recommended national legislation to protect whistleblowers and provide a means of investigating their complaints, with complementary State laws when necessary. Among the protections, that whistleblowers are exempt from sanction or discipline after breaching security provisions in most cases, that disclosures in the public interest should be a defence against prosecution, and that they should be protected from victimisation, with investigations launched on any harassment.

The report also recommends whistleblowers be entitled to legal aid and counselling, but not exempt from defamation laws, and the committee also wants mechanisms set up in the private sector to deal with the issue. The reasoning is that corruption knows no bounds, and whether it's in the public or corporate arena, the taxpayer always foots the bill.

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JOCELYN NEWMAN: We've got something like $9 billion annually spent for goods and services by the Commonwealth alone. Opportunities for fraud exist in those areas. We've 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 $2-3 million. We've had evidence given to us about corruption in academia; we've had evidence given to us as to the losses, the massive losses, that have taken place in the banks of Australia and the financial institutions, and in corporate Australia, companies that have failed where perhaps if there'd been a whistleblower with a satisfactory method of reporting, those losses to shareholders, 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.

KIEREN MCLEONARD: The report calls for the establishment of a small independent agency to oversee all matters related to whistleblowing. It will be known as the Public Interest Disclosures Agency and will record allegations and organise investigations. It would act as a clearing house, screening for frivolous complaints, and have the power to protect those blowing the whistle on illegal actions, misconduct, maladministration and actions that could threaten public safety, health and the environment. Senator Newman again.

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JOCELYN NEWMAN: 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 on the board, as well as other people, and that they should report annually to Parliament; they should also be able to bring special reports as the need arose to the Parliament, and that action would be required on their reports.

KIEREN MCLEONARD: The bottom line for the committee is that blowing the whistle, being able to report on corruption or misdeeds, is a legitimate activity. The Greens WA Senator, Christabel Chamarette, argued that evidence before the inquiry didn't support the notion that whistleblowers are in the main motivated by malice, though that assumption is often made.

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CHRISTABEL CHAMARETTE: Whistleblowing is an action taken by individuals. Often, in taking that action, an individual incurs the wrath of an entire organisation. In other instances, the action may not threaten the organisation, but does threaten other people within the organisation, that are more powerful than the whistleblower. Because of this, it is often hard for a whistleblower to be heard within the ordinary complaints processes of the organisation, and it is also likely that the whistleblower will have great difficulty remaining in the organisation, or at least in the same job within the organisation.

I think that the evidence showed that usually the person who was blowing the whistle within their organisation was doing it from the very best interests, not from any self-interest, but a concern that they be doing their job and that the agency or organisation of which they were a part, was to be operating at the highest standard possible. Unfortunately, a frequent consequence of whistleblowing is that other people no longer feel they can trust the whistleblower. They see the person's action as disloyal or breaching an unwritten code of conduct, a code of conduct based on not dobbing in a mate, or not speaking out and being crushed and having other people around you crushed as well.

It is for these reasons that it was very difficult, and still is, to find a mechanism which is capable of providing a satisfactory or lasting protection for whistleblowers.

KIEREN MCLEONARD: Overcoming that Australian culture of not dobbing in a mate is a tough ask, and Labor Senator, Barney Cooney, told his colleagues that there could be risks if that cultural attitude moves too far in the other direction. The principle danger, he says, is that of malice in an accusation, but he also believes Australian society has begun to adopt some unhealthy attitudes.

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BARNEY COONEY: There is the danger that we become a society of people that spy upon their neighbours and report anything that we consider might be worthy of report. There is danger that these sorts of things, this sort of procedure, can be used by people to do damage to others, either through a belief that they deserve it because of a particular perception that the whistleblower has of the action taken by the person that they're informing on, or simply as a means of revenge or bringing that person down.

The public interest disclosure is defined as disclosures of the illegality, infringement of the law, fraudulent or corrupt conduct, substantial misconduct, mismanagement or maladministration, gross or substantial waste of public funds or resources, endangering public health or safety, danger to the environment, and that's left up to the informer or the whistleblower to make a judgment about, and then for the agency to decide whether or not that assessment is right, but that the agency makes that statement without having heard necessarily from the person against whom the information is made.

KIEREN MCLEONARD: But the Liberal's, Kay Patterson, tried to allay the fears that vexatious whistleblowers would be allowed to foul up the system. She says that the committee has tried to guard against that possibility in its recommendations and pointed to several of the report's findings that the rights of the accused also be protected.

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KAY PATTERSON: The committee went on to say, too, that the committee recognises the basic presumption of innocence, and seeks to ensure that allegations are investigated in such a way as to respect the fundamental rights of those accused of wrongdoing. And further on in the report, the committee recommends that where a person makes an allegation, knowing it to be false, in material particular, that making of such a false allegation should constitute an offence under the whistleblowing protection legislation. Where such an offence is proven, the person who made the allegation should be subject to a penalty being fine and/or community service orders. And also in the report, the committee said and recommended that the Public Interest Disclosures Agency not receive disclosures or complaints made anonymously.

So, I hope Senator Cooney, some of those checks and balances that the committee have suggested will help to alleviate some of your concerns, and also my concerns, that people are not wrongly accused, or accused wrongly of fraud or whatever else, and the whistleblower is protected and the person who has been accused of the crime isn't. And I think the committee has done all it can to try and make recommendations that would protect against that.

KIEREN MCLEONARD: There's been no decision from the Federal Government on when it will respond to the report.