Flying Foxes, WikiLeaks and Freedom of Speech

INTERNATIONAL WHISTLEBLOWING RESEARCH NETWORK CONFERENCE MIDDLESEX UNIVERSITY, LONDON, UK 23-24 JUNE 2011

Flying Foxes, WikiLeaks and Freedom of Speech: Statutory Recognition of Public Whistleblowing in Australia

A J Brown John F Kearney Professor of Public Law Griffith University, Gold Coast, Queensland 4222 Australia [email protected]

1. INTRODUCTION

It seems very odd that there is a far greater maximum [financial] penalty if someone destroys a flying fox roost compared to the possible destruction of a whistleblower’s career, health and life. ... If you scare a flying fox out of its roost, you face a maximum penalty that is six times worse than if you are found guilty of taking reprisal action against a whistleblower. ... [I]s that fair? Is that sending the right message to the people who take reprisal action or think of taking reprisal action against whistleblowers? Who needs greater protection: flying foxes or whistleblowers? Rob Messenger MLA, Legislative Assembly of Queensland (Australia), 16 September 2010.1 On 16 September 2010, in debate on the Public Interest Disclosure Bill 2010 (Qld) the Legislative Assembly of Queensland, Australia was challenged to consider the adequacy of its next attempt to facilitate and protect public interest whistleblowing in the state’s public sector. In fact, as pointed out by the Premier, Hon Anna Bligh MLA, the Queensland penalty for detrimental action against officials who make public interest disclosures is not necessarily weaker than the penalty for disturbing flying foxes (a form of large native Australian bat). The maximum penalty also includes two years’ imprisonment, as against one year for destroying a flying fox roost. The new Act also extends this offence to one for which any person can now be 1

Queensland Parliamentary Debates (Hansard), Brisbane Australia, 16 September 2010, pp.3419-3420.

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held liable, and not just public servants as under the previous Whistleblower Protection Act 1993 (Qld). But this is just one detail, in one of the many efforts under way within Australia and around the world to secure effective legislative recognition of the role of whistleblowing2 in the integrity and accountability systems of modern societies. The unexpected comparison with flying foxes gives a taste of the strange twists that can befall the legislative process, when leaders engage in debate about whistleblowing law reform. In the United States and Australia, whistleblowing advocates and legislators have put stock in the criminal offence of reprisal against a whistleblowers as if this, in itself, can both encourage whistleblowing and discourage reprisals. Absence of prosecutions is regularly cited as evidence that legislation has failed. But in fact, we now know that while criminalisation of reprisals remains an important symbolic component, in Australia it has at best indirect relationships with other, more important elements of legislative design. Contrary to some expectations, empirical research suggests that criminal penalties and prosecutions may have been a distraction – or even a mask – from the main game of whistleblower protection.3 While it remains a necessary element in the many statements of principles describing potential best practice in the field,4 it is still just one element, and not necessarily the most vital. What, then, are the key legal drivers for change in the culture, practices and leadership of institutions, for the prosocial value of public interest whistleblowing to be recognised and maximised? This paper reviews the state of law reform in the whistleblowing field in Australia, focusing on the first of three key elements of legislative change. These elements emerged as the most important legal mechanisms among the recommendations of the Australian Research Council-funded project Whistling While They Work: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations, conducted by the author and colleagues in 2005-2009:5

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Whistleblowing is used throughout this paper to mean the 'disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action' (Miceli & Near, 1984: 689); and usually to mean public interest whistleblowing in the sense described at Brown (2008), pp 8-13. 3 See Smith & Brown (2008). 4 See e.g. Lewis (1996); Brown, Latimer, McMillan & Wheeler (2008); Banisar (2009/2011); Osterhaus & Fagan (2009). 5 See Brown et al (2008). The research was made possible by support from the Australian Research Council (Linkage Project LP0560303) and the partner organisations to the project, whom the author thanks along with his colleagues on the research team (see www.griffith.edu.au/whistleblowing). The findings and views expressed are those of the author and do not necessarily represent the views of the Australian Research Council or the partner organisations in the project.

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

Statutory recognition of the role of public whistleblowing (i.e. disclosure to the general public via the old and new media);



Better operational systems for more productive management of internal and regulatory whistleblowing, especially through strong lead agency support and oversight; and



Practical remedies for public officials whose lives and careers suffer as the result of having made a public interest disclosure, especially compensation for damage flowing from organisational failures to act, support and protect. The research underpinning the recommendations has been reported elsewhere.6 This paper

examines implementation, especially in the two years since 2009 when the resulting law reform was already at a ‘crossroads’.7 Although the paper focuses on the first of the above ‘drivers’, brief remarks will also be made at the end about progress in respect of the other two. In focusing on the issue of public whistleblowing, the paper also draws on work-in-progress under a further Australian Research Council project, Blowing Boldly: The Changing Roles, Avenues and Impacts of Public Interest Whistleblowing in the Era of Secure Online Technologies8 – a gamechanging element in recent debate about whistleblowing, as will be seen below. The first part of the paper examines the most significant step taken by the Queensland Parliament in its Public Interest Disclosure Act 2010 (Qld) – not the extension of the criminal offence of reprisal, important as that was, but long overdue statutory recognition of public whistleblowing as a valid disclosure avenue, together with a new threshold for when this may legitimately occur. Intertwined with developments towards a federal whistleblowing law in Australia, and international precedents, the 20 year road to the new Queensland provision appears to have resulted in perhaps the simplest test of its kind in the world today. Against this positive backdrop, the second part of the paper summarises the equally long, as yet unfinished road towards a federal (or Commonwealth) Public Interest Disclosure Bill. Almost four years since federal commitment to such reform was reactivated, a further selfimposed deadline (30 June 2011) is about to pass without the government having made any recent detectable progress. Instead, the past ten months have seen a smaller breakthrough with the introduction of a federal ‘shield law’ for journalists, strengthening their ability to protect the

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The research included survey and interview data drawn from 8,800 public servants across 118 federal, state and local government agencies, along with analysis of the practices and procedures of a further 186 agencies (total 304 agencies) -- see Brown (2008), Mazerolle & Cassematis (2010). A second report, Roberts, Brown & Olsen (2011), is shortly to be published by ANU E-Press. 7 Roberts & Brown (2010), p.70. 8 Australian Research Council Discovery Project DP1095696. The author thanks his colleagues Drs Suelette Dreyfus and Simon Milton from the University of Melbourne. Again the findings and views expressed are those of the author and do not represent the views of the Australian Research Council.

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identity of confidential sources. But while this debate, too, has produced productive results, it has highlighted the difficulty of legislators in retaining the long-term perspective needed to sustain their commitment to transparent and open government – even more than in the case of the Queensland flying fox debate. Maintaining the momentum has become a real challenge, with the future of federal reform now sitting on something of a knife-edge. The complexity of this situation is made clear in the third part of the paper. This discusses reactions to the success of the internet publisher WikiLeaks, including its Australian founder Julian Assange, in bringing issues of public whistleblowing to the forefront of international debate as never before in human history. This section briefly outlines the major Australian political responses to WikiLeaks in international context. Faced with the challenges of what whistleblowing might mean in the age of the new media, the conflicted responses of some Australian leaders, under the shadow of an even less sustainable U.S. government position, reinforce the need to maintain a clear, long-term vision about the role of public whistleblowing in ensuring integrity in government. In turn this reinforces why Australia, and perhaps other governments, needs to hold both its nerve and its course in putting in place the type of public interest disclosure legislation to which it has committed. In conclusion, the paper briefly outlines where Australia’s potential advances in the recognition of public whistleblowing sit within the context of the other key legislative ‘drivers’. While some Australian jurisdictions are moving to provide their whistleblowing regimes with stronger implementation and oversight capacity – including in a world-first direction – others appear to have stalled or may have simply rearranged deck-chairs. The greatest challenges are in bringing Australian whistleblowing law into line with world’s best practice for compensation, for those whistleblowers whose lives and careers are adversely affected by their prosocial service. The Australian government has also made only marginal progress towards comprehensive whistleblower protection in Australia’s business and non-government sectors. Together these results make for a mixed report card. On one hand, Australian governments have been restating and strengthening their ‘in principle’ commitments to values of transparency and integrity in government, and continuing to innovate in important respects. On the other, international political pressure and vacillations in leadership, combined with natural institutional resistance to change, mean that key reforms also hang in the balance, while others are guaranteed to be an ongoing process.

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2. THE NEW RECOGNITION OF PUBLIC WHISTLEBLOWING Background: common law quandaries For decades if not centuries, public whistleblowing through the media has provided the quintessential example of what whistleblowing is all about. Among researchers, there has been debate about whether disclosures which do not reach the public domain should be categorised as whistleblowing at all.9 Yet when some governments began to move protect whistleblowers in the 1980s and 1990s, many of the new statutory protections were strangely silent on the question of whether protection extended to disclosures outside ‘official channels’, even when these provided most of the circumstances giving rise to the main risks. In the United States, the Whistleblower Protection Act 1989 (US) was fundamentally ambivalent, providing legal protection to disclosures outside official channels, only where 'not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs'.10 In practice, protection of public whistleblowing has been easily overridden by other legislative or administrative action, and receives its only real support from the ‘reporter’s privilege’ flowing from the U.S. Constitution’s First Amendment. The inadequacy of this situation will become clear later in the paper. In Australia, it was initially presumed that a whistleblower might not need explicit protection with respect to public disclosures, given the common law principle that a person may always assert a public interest defence to a criminal or civil breach of confidentiality. Descended from the English principle that 'there is no confidence as to the disclosure of iniquity'11 (sometimes restated as 'there is no equity in inequity'), in Australian courts it has been said that 'the public interest in the disclosure... of iniquity will always outweigh the public interest in the preservation of private and confidential information'.12 However it has also been stated that this principle is 'too broad a statement unless "iniquity" is confined to mean serious crime',13 suggesting that only disclosure of 'serious' wrongdoing might attract the defence.14 In 1994, a Senate Select Committee on Public Interest Whistleblowing concluded that while the principle survived, the category of cases to which it applied had ‘by no means been described

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See Miceli et al (2008), pp.7-10, 85. Whistleblower Protection Act 1989 (Title 5 US Code), Sec. 1213(a). Subsection 1. 11 Wood V-C in Gartside v Outram (1856) 26 LJ Ch 113 (at 114). For an extended discussion, see AttorneyGeneral (UK) v Heinemann Publishers (1987) 10 NSWLR 86, per Kirby P at 166-170. 12 Allied Mills Ltd v Trade Practices Commn (1980) 55 FLR 125 per Sheppard J. 13 A-G v Hayden (No 2) (1984) 156 CLR 532, per Gibbs CJ. 14 See Lewis (1996). 10

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exhaustively’, nor had judicial definition ‘provided any degree of certainty in the law for whistleblowers’.15 Hence this area of law was ripe for reform. Despite the obvious case for statutory clarification, Australia’s first three whistleblowing laws instead took different, confusing approaches. South Australia’s Whistleblowers Protection Act 1993 (SA) applied to any relevant disclosure made to ‘a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure’ – not necessarily disturbing the common law position, and theoretically including the media. However in Queensland, it was recommended that the legislation should define the circumstances where public whistleblowing would attract protection, but limit this to disclosures concerning a serious, specific and immediate danger to public health or safety.16 In the end, the Whistleblower Protection Act 1993 (Qld) did not follow this course, and was silent, tending to neutralise any remaining common law principle by excluding the media from the persons to whom protected disclosures could be made, about anything. Protections only applied to those disclosing wrongdoing internally or to relevant regulatory agencies. Shortly after, New South Wales (NSW) took a different approach again, adopting another proposal advanced in Queensland by Professor (later Justice) Paul Finn, but rejected.17 The Protected Disclosures Act 1994 (NSW) was the first and until recently, the only Australian law to expressly recognise public whistleblowing by including a ‘journalist’ among the persons to whom a disclosure could be made. This was provided that the disclosure had first been made to either the agency concerned or a relevant regulatory agency, and:

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

there had been either (a) a decision not to investigate, (b) a failure to complete an investigation within six months, (c) a decision not to take any action, or (d) a failure to notify the whistleblower within six months, whether or not the disclosure was to be investigated;



the whistleblower had reasonable grounds for believing the disclosure was ‘substantially true’; and



the disclosure was indeed substantially true.18

Senate (1994), par 8.27. EARC (1991), p.138. In part, however, this approach was tied to the fact that EARC also recommended that the Act protect disclosures by 'any person', including a wider range of complainants than simply whistleblowers. EARC's reasoning also made clear that were the Act to be limited to public sector whistleblowers – as largely occurred – then a less restrictive approach was justified. 17 See EARC (1991), p. 139. 18 Protection Disclosures Act 1994 (NSW), s 19. Now Public Interest Disclosures Act 1994 (NSW), s 19. ‘Journalist’ was and is defined to mean ‘a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media’ (s 4). 16

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NSW was thus the first jurisdiction – apparently worldwide – to legislate what is now known as a three-tiered model of internal, regulatory and public whistleblowing. However other State legislation followed the Queensland precedent, staying silent about disclosures to the media, and thus tending to preclude them from the protection regime. These inconsistent results were recently described as an example of the general ‘unease’ of legislators and policymakers with respect to the role of public whistleblowing.19 As will be seen later, that unease remains in much of the international and domestic debate around the issue today. Britain steps up, Australia falls behind Four years after the NSW Act, a three-tiered model was enacted in Britain under the Public Interest Disclosure Act 1998 (UK), and then became widely recognised. This legislation extended employment protection and compensation rights to employees who make ‘further’ disclosures beyond the employer and regulators, provided the disclosure is reasonable in all the circumstances, not made for personal gain, and either has already been raised with the employer or a regulator, or involves (a) reasonable fears of victimisation, (b) reasonable belief that evidence was likely to be concealed or destroyed, or (c) an exceptionally serious concern.20 While the logic of the three-tiered model is now clear, the slow pace of reform in most countries is testimony to the natural inertia, or resistance, that readily attaches to the desires of government to keep such matters in-house. Among those countries which have legislated for public sector whistleblower protection of any kind, even fewer have expressly authorised and protected disclosures at the third tier of the media and general public – with Romania emerging in recent analyses as the only European country to do so apart from the UK.21 This natural inertia remained visible in Queensland, where despite its well-developed systems for internal and regulatory whistleblowing, action in response to major, tragic criminal medical negligence in a public hospital was only taken after a senior nurse manager’s concerns were made public in 2005.22 Returning to the issues in the design of the original legislation, the Commission of Inquiry recommended amendments to expressly enable a whistleblower to ‘escalate his or her complaint’ to a central agency, then the parliament, and then the media.23 However the Queensland government again rejected the recommendation, based on advice from

19

As described by Vandekerckhove (2010), pp.16-17. Employment Rights Act 1996 (UK), ss 43G and 43H, as inserted by Public Interest Disclosure Act 1998 (UK); see explanatory guide by Public Concern At Work, www.pcaw.co.uk. 21 See Vandekerckhove (2010); Osterhaus & Fagan (2009). 22 This publicity occurred after the senior nurse, Toni Hoffman, took her concerns to the member of parliament mentioned earlier, Rob Messenger MLA. For an account of the scandal, see Thomas (2007). 23 Davies (2005), p.472, par 6.512. 20

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its Public Service Commissioner that allegations aired in the media could ‘unjustly’ bring persons against whom allegations are made into ‘disrepute’, prejudice official investigations and ‘unnecessarily disrupt the workplace’.24 A national enlightenment? Finally, in 2007, the three-tiered model was endorsed at Australia’s national or federal level (also known as the Commonwealth), where the 14 years since state legislative action began had seen no attempt at an effective measure. As discussed below, the outcomes of this policy shift now hang in the balance. The shift stemmed from a change of federal government, with the incoming Rudd Labor government committed to greater transparency than its predecessor, including reversal of an increasingly draconian approach to the treatment of both whistleblowers and journalists.25 The government undertook to at least match the NSW approach, including protections for public interest disclosures where a ‘whistleblower has gone through the available official channels, but has not had success within a reasonable timeframe and... where the whistleblower is clearly vindicated by their disclosure.’26 The shift also reflected pressure from a national coalition of media organisations (Right To Know), including an audit of government secrecy by Irene Moss AO. This recommended that public interest disclosure legislation 'should at least protect whistleblowers who disclose to the media after a reasonable attempt to have the matter dealt with internally or where such a course was impractical'.27 Whistleblowing in the Australian Public Sector, launched by the federal Special Minister of State, Senator John Faulkner in September 2008, recommended similarly.28 In February 2009, a subsequent inquiry by the House of Representatives Committee, chaired by Mark Dreyfus QC MHR, recommended comprehensive legislative and administrative reform based on a new Public Interest Disclosure Act, in line with the Whistling While They Work findings. The Dreyfus committee reported that public whistleblowing must be part of this scheme: ‘experience has shown that internal processes can sometimes fail... [that] the disclosure framework within the public sector may not adequately handle an issue and that a subsequent disclosure to the media could serve the public interest’;29 any other approach would simply ‘lack credibility’.30 Significantly, the Committee also reported stakeholder evidence that without such

24

OPSC (2006), p. 18. For an overview of these cases, include that of Alan Kessing, see Brown (2007). 26 ALP (2007) 27 Moss (2007), p. 73 28 Brown (2008). 29 House of Representatives (2009), p. 162-4. 30 House of Representatives (2009), p. 162. 25

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an approach, more officials would simply resort to leaking information in ways that were more difficult to control and address, including 'anonymous disclosure of official information on [internet] sites such as Wikileaks'.31 Many months before WikiLeaks came to international prominence, it was a prescient observation. The Queensland leapfrog With this background, the Queensland government also moved in 2009 to review its 1993 legislation, leading to passage of the Public Interest Disclosure Act in September 2010.32 Inertia and intractability was still evident. Although the senior public service agencies supported significant improvements to the regime, they again briefed against recognising public whistleblowing notwithstanding the changing national and international landscape. In an act of political leadership, the Bligh Labor government nevertheless decided to expand the scheme onto the three-tiered model, using a simplified form of the NSW formulation from 16 years earlier, and thus to recognise public whistleblowing. The Act provides that public officials will continue to receive legal protections if they take a public interest disclosure to a journalist, provided they have first taken it to an official authority – and that authority has: (i)

‘decided not to investigate or deal with the disclosure’; or

(ii)

‘investigated the disclosure but did not recommend the taking of any action’; or

(iii)

‘did not notify the person, within 6 months [of the disclosure], whether or not the disclosure was to be investigated or dealt with’.33

This provision compares favourably with existing precedents in a number of respects. On one hand, it presupposes that a whistleblower must always first attempt to make their disclosure within ‘official channels’, before ever being entitled to blow the whistle publicly. As such, it might appear to offer less protection than the equivalent UK provision, which recognises that it may be unreasonable to expect employees to first use internal disclosure procedures, especially if none exist. Certainly, the principle should be that even if internal whistleblowing is to be encouraged, and public whistleblowing therefore identified as normally an avenue of last resort, there may always be situations where prior internal disclosure is impossible, unreasonable or pointless. Statute should recognise this.

31

House of Representatives (2009), p. 146. For background to this reform, see Brown (2009a, 2009b, 2010). 33 Section 20(1), Public Interest Disclosure Act 2010 (Qld). ‘Journalist’ is defined to mean ‘a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media’: s 20(4). 32

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However, two features of the Queensland provisions also mitigate this problem. First, the legislation provides a flexible framework for how internal and regulatory disclosures may be made. Contrary to some schemes, disclosures can be oral, need not be explicitly identified as a public interest disclosure under the Act, and irrespective of what procedures an employer might put in place, can always be made to anyone in the management chain from an immediate supervisor to the chief executive, and out to a range of relevant independent integrity agencies (e.g. Crime and Misconduct Commission, Ombudsman, Auditor-General). Consequently, simply telling someone with any responsibility that there is a concern within the definitions of the scheme, constitutes an internal disclosure. This increases the responsibility on agencies to put in place the systems for recognising and dealing with concerns, but also matches the apparent experience and preferences of most employees with public interest concerns, in most situations. The provision thus makes sense within the integrity system in which it sits. The second mitigating factor is flexibility with respect to when an employee may elect to go public. As in NSW, there is a requirement to wait six months if the whistleblower simply does not know whether or not anyone is doing anything. However there is no specified waiting period if the whistleblower gets a negative response to their first disclosure – for example, if a supervisor or higher manager simply dismisses a concern, ignores it or tells them not to worry about it. If the employee receives a negative response from an internal investigation, they can similarly go public, provided they retain the necessary honest and reasonable belief that the information they are disclosing is about official misconduct, serious maladministration or the like.34 In other words, if an agency's response is professional, and the outcome is properly explained, the whistleblower still needs to have a reasonable basis for believing that outcome is wrong. However, provided this is the case, then if it is clear that an agency is not dealing with a disclosure, or as soon as the agency has completed its inquiries and decides not to do anything, then a reasonable public servant can go to the media immediately. This could be days, hours or even minutes after the original disclosure. In debate on the Bill, in response to questions from the Liberal-National Opposition, the Premier confirmed her interpretation that this includes an ability for public employees to go public in the face of a ‘deemed refusal’ to act: Where the Member is suggesting that there is a time frame during which, if this matter is not dealt with, the decision will go ahead, my understanding is that one could argue that that has effectively been decided under provision (1) of this clause. ... You can actually effectively

34

Public Interest Disclosure Act 2010 (Qld). ss. 12(3), 13(3).

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make a decision by failing to make it, if you understand my point, and that would be relied upon reasonably in those circumstances.35 In context, therefore, it is arguable that this element of the new Queensland legislation provides the simplest and clearest current provision for public servants to be able to go public with serious concerns about wrongdoing, if official authorities fail to act – not just in Australia, but worldwide. As discussed later, other elements of the reformed regime do not yet accord with international best practice. However, on the issue of public whistleblowing it may have helped set a new standard. The logic of this reform now extends well beyond simple clarification of a confused and unhelpful common law position, and the political reality that even in societies with sophisticated integrity systems – perhaps especially in these – public whistleblowing is going to continue to occur, and to be valued. Statutory recognition of the media as a third tier of the disclosure regime also represents a deliberate ‘driver’ for organisational change, in a context where plainly, too few organisations are taking adequate steps to facilitate and protect whistleblowing at the internal and regulatory levels where wrongdoing is often best addressed and employees more readily protected. The provision provides official sanction to the risk of the ‘front page test’ if public institutions fail to improve their own integrity systems, including their own support for employees who speak up. It institutionalises the principle stated by a veteran Australian political journalist, Laurie Oakes, that ‘leaks are the difference between a democracy and an authoritarian society... The risk of being found out via leaks makes those in authority think twice about telling porkies [lies], performing their duties sloppily, behaving badly, or rorting the system’.36 Whereas ‘leaking’ is best defined to mean the unauthorised disclosure of inside information, the game-changing nature of the new provisions is to recognise, and grant, the higher authority for disclosures that would otherwise be unlawful or actionable. Not all leaking is necessarily whistleblowing, any more than all whistleblowing necessarily involves leaking, but the two come together in what the WikiLeaks organisation describes as its raison d’etre: ‘principled leaking’.37 The ability of political leaders to follow through on their recognition of these principles, in an era of change in the media itself, becomes the next challenge.

35

Queensland Parliamentary Debates (Hansard), Brisbane Australia, 16 September 2010, pp.3413. Oakes (2005);Oakes (2010), p.295. 37 (viewed 16 June 2011). 36

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3. FEDERAL LAW REFORM: WHISTLEBLOWING ON A KNIFE-EDGE Devil in the detail As just outlined, the move to recognise public whistleblowing in Queensland paralleled commitments by Australia’s new federal Labor government in 2007-2009 to introduce comprehensive public interest disclosure legislation. When it came to the detail of how public whistleblowing should be recognised, however, federal legislators revealed themselves to be somewhat conflicted. While the House of Representatives Committee endorsed a broad principle, its recommendation was that public whistleblowing should only be authorised in limited circumstances: ‘where the matter has been disclosed internally and externally, and has not been acted on in a reasonable time having regard to the nature of the matter, and the matter threatens immediate serious harm to public health and safety.’38 Many forms of serious wrongdoing, including outright corruption, do not fit the definition of an immediate threat to public health and safety. As such, the proposed federal provision remained similar to that recommended but not enacted in Queensland in 1993, and to some more recent overseas legislation, such as that in Manitoba, Canada.39 A similar internal conflict can be found in Canada’s federal Public Servants Disclosure Protection Act 2005, which provides that a public servant may make a disclosure to the public ‘if there is not sufficient time’ to disclose through official channels, but only in respect of imminent, substantial and specific dangers to life, health, safety or the environment, or a ‘serious offence’ under law.40 While this is broader than the original Australian federal proposal, and preserves any surviving common law rights to disclosure,41 it mirrors the conflicted state of U.S. law by providing that public whistleblowing is still not authorised for any information ‘the disclosure of which is subject to any restriction created by or under any Act of Parliament’.42 Whether the federal Canadian provision thus actually means anything at all, in many circumstances, is uncertain. Fortunately, common sense prevailed in the Rudd Labor government, although the position today is less clear. When the government announced its policy response to the House of Representatives inquiry in March 2010, it confirmed that all types of wrongdoing covered by the Public Interest Disclosure Bill could be the subject of further disclosure – provided that:

38

House of Representatives (2009), Recommendation 21. Public Interest Disclosure (Whistleblower Protection) Act 2006, C.C.S.M. c. P217 (Manitoba). Section 14(1). 40 Public Servants Disclosure Protection Act 2005, S.C. 2005, c. 46. Section 16(1). 41 Section 16(2). 42 Section 16(1.1). 39

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(a) (i) the matter disclosed has previously been disclosed to the responsible agency and the integrity agency, or the integrity agency directly; and (ii) the disclosure relates to a serious matter; and (iii) the disclosure was not acted upon in a reasonable time or the discloser has a reasonable belief that the response was not adequate or appropriate; and (iv) no more information than is reasonably necessary to make the disclosure is publicly disclosed; and (v) the public interest in disclosure outweighs countervailing public interest factors (e.g. protection of international relations, national security, cabinet deliberations); OR (b) (i) the discloser has a reasonable belief that a matter threatens substantial and imminent danger or harm to life or public health and safety; and (ii) there are exceptional circumstances explaining why there was no prior internal or regulatory disclosure. The government also announced that public whistleblowing would not be protected where it related to ‘intelligence-related information’, or was to a foreign government official.43 This policy position represented a significant advance on the recommendation from the legislative inquiry, and reflected detailed consideration of qualifications that might be placed on the extra step of public disclosure (as reflected in adoption of the Canadian proviso regarding only information ‘reasonably necessary to make the disclosure’44). However, especially as events have unfolded, the extent of these qualifications and caveats means that, once translated into legislative drafting, the proposal could mean much less than it appears. Unrestricted caveats on ‘intelligence-related’ information may place substantial areas of federal responsibility beyond the public disclosure safety-valve, irrespective of the public interest, unless there is imminent danger to life or public safety. More importantly, if it is presumed that any issue of ‘protection of international relations’ or ‘Cabinet confidentiality’ outweighs any public interest in disclosure, then the proposed balancing test may be weighted heavily against many disclosures to whom the public safety-valve should logically apply. Being confident that they have the benefit of such a balance is an onerous and uncertain test for an individual public servant to meet. Plainly, such a detailed set of hurdles and hoops also stands in sharp contrast to the much simpler test provided for, subsequently, in the new Queensland legislation. Detail delayed, opportunity closing? On top of these challenges – and others identified in the last part of the paper – the policy position of March 2010 represents that last point at which anything is known about the content 43 44

Commonwealth Government (2010). Public Servants Disclosure Protection Act 2005, S.C. 2005, c. 46. Section 15.1.

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of the federal government’s proposed Bill. While drafting is understood to have occurred, the government suffered a change in leadership, an election was held in August 2010, and a minority Labor formed, dependent on the support of three Independent members and the Australian Greens. Initially, this state of affairs appeared to preserve the chances of a federal Public Interest Disclosure Bill, since all the formal agreements underpinning the government included commitments to reforms aimed at open and transparent governance, and two included specific commitments to ‘introduce legislation to protect whistleblowers and seek to have such legislation passed by 30 June 2011’.45 The first of these agreements was with Andrew Wilkie MHR, a former military officer who came to public prominence in 2002 when he resigned his position as a national security analyst to publicly blow the whistle on the lack of evidence to support Australia’s imminent participation in the war in Iraq. In practice, 30 June 2011 is now about to pass without any Bill having been introduced, nor any alternative timetable for such a Bill announced, nor any private consultation between the government and key stakeholders on many outstanding issues for the design of the Bill. Given the extent of the issues, it is plain that if the timetable continues to slip as it has, there is little realistic prospect of these issues being resolved in time for the Bill to be introduced, debated and passed within the life of the present, unstable parliament. If that happens, then past events, and normal institutional inertia and resistance to reform within the public sector may mean that many years pass before the opportunity is regained. Hence despite the recent momentum for reform, its prospects currently stand on something of knife-edge. This state of affairs is suggested not only by the important question of how the conflicting values placed on public whistleblowing will be resolved (above), and other major gaps in the policy position on which the Bill is presumably still based, but two other major federal debates of recent months – the successful but conflicted push for journalism ‘shield laws’, and the even more conflicted reactions of Australian leaders to controversy surrounding the Wikileaks organisation. How to protect journalists (and what is a journalist anyway?) For as long as public whistleblowing has been potentially unlawful or actionable, and uncertainty has prevailed about the value of public interest defences and exceptions, a primary focus for attempts to prosecute whistleblowers for unauthorised release has been evidence from

45

Agreement between Hon Julia Gillard, Prime Minister and Andrew Wilkie MHR, 2 September 2010, clause 3.4. See similarly, Agreement between Hon Julia Gillard, Prime Minister et al and Tony Windsor MHR and Rob Oakeshott MHR, 7 September 2010, clause 3.1(e).

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the journalists to whom they may have leaked. While journalists have confidential sources who are not whistleblowers, the availability of a legal privilege which entitles journalists to refuse to reveal the identity of sources is of obvious importance in a public interest whistleblowing context. Reform of Australian evidence laws to create an adequate journalists’ privilege has been debated for as long as whistleblowing legislation itself. However it was only from 2007 that tangible steps began to be taken to adopt a reasonable federal privilege, with a nondisclosure presumption on the lines of recent reforms in New Zealand.46 Pressure accelerated after embarrassment of the federal government over the conviction of two journalists for contempt of court, who refused to reveal their source when called as witnesses against a federal public servant who allegedly released information regarding defence veterans’ entitlements.47 In another prosecution, of the former Australian Customs officer Alan Kessing, a conviction was obtained without the relevant journalists even being called to give evidence, presumably at least partly to avoid further, worse political embarrassment.48 In parallel to progressing its commitment to whistleblowing legislation, the Rudd Labor government attempted but failed to secure reform to strengthen journalists’ privilege – in large part because its proposal remained based on a rebuttable presumption in favour of journalists having to reveal their sources, when all other political parties including the Liberal-National Opposition now supported the more effective alternative.49 Having failed to prosecute a solution, the federal Attorney-General, Robert McClelland was out-manoeuvred by his Opposition counterpart, Senator George Brandis, whose commitments forced the Gillard Labor government to change its policy.50 Consequently in September 2010, Senator Brandis introduced the Evidence Amendment (Journalists' Privilege) Bill 2010 (Cth). This laid out the basis for amendment of the Evidence Act 1995 (Cth) in March 2011, although it was an almost identical Bill introduced by Andrew Wilkie which was supported by the government. For many legislators, the recent passage of the federal journalism ‘shield law’ may appear to represent a substantial step towards the protection of whistleblowers who go public. However 46

See Tracey (2010). Desmond Kelly was prosecuted for disclosing information to the media regarding a change of government policy concerning veterans’ entitlements, and was convicted, but had his conviction quashed: see ‘Herald Sun journalists avoid jail’, The Australian Online, June 25 2007 ; S Maiden, ‘Ruddock says contempt pardon 'worth considering'’, The Australian, 27 June 2007 ; Media Entertainment and Arts Alliance (2007), Official Spin: Censorship and Control of the Australian Press 2007, pp.8-10; Brown (2007). 48 S Kearney, ‘Airport whistleblower guilty’, The Australian, 28 March 2007; ‘No jail for airport leaks’, The Australian, 23 June 2007; Brown (2007). 49 C Merritt, 'Whistleblowers shun new laws', The Australian, 17 April 2009. 50 ‘Coalition promise to introduce shield laws prompts labor to re-examine its position’, The Australian, 20 August 2010; Tracey (2010). 47

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while it is a positive outcome, the fact is that it is at best an indirect and fragmentary step. It is a fundamentally a law that shields journalists from prosecution for contempt; it does nothing, at law, to protect whistleblowers from prosecution for releasing information. Consistently with the history of the government’s ambivalence towards the correct approach, and the lagging timetable in respect of the public interest disclosure legislation, the Attorney-General’s speech on the shield law made no reference to whether or when whistleblower protection would be advanced.51 By contrast, Opposition Senators have twice called for the government to also progress the ‘complementary legislation designed to protect whistleblowers who make confidential disclosures in the public interest... these pieces of legislation should be concurrently introduced for comprehensive consideration’.52 Indeed, somewhat like the Obama administration, the government has been credited with commencing twice as many criminal investigations into official leaks as the predecessor it criticised.53 At the time of writing, it had also done little to assist or resolve the case of the alleged airport security whistleblower, Alan Kessing, despite having championed it in Opposition as an example of unjust treatment. Importantly, however, once the government saw its way clear to protecting journalists, it also went one step further. In March 2011 it supported a slightly broader definition of ‘journalist’ proposed by the Greens, than provided by the relevant New Zealand precedent and preferred by the Opposition. Whereas both the Brandis and Wilkie Bills proposed to a define a journalist to mean a person ‘who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium’, this was amended to mean a person ‘who is engaged and active in the publication of news and who may be given information by an informant...’. The definition of ‘news medium’ was also expanded from ‘a medium’ to ‘any medium’.54 The intention was clear – to ensure that the definition was not restricted to traditional full-time staff journalists of traditional newspapers, television and radio, and included the many other participants in news-gathering and publication in the age of the new media. Significantly, the debate and these amendments occurred under the shadow of the storm provoked by WikiLeaks. However, despite being a web publisher who would clearly be covered by the amended definition, and probably also the original one, WikiLeaks itself was not mentioned in parliamentary debate.

51

Hon R McClelland MP, Commonwealth Parliamentary Debates (Hansard), HR, 25 October 2010, p.1238. Senate (2010), dissenting report, p.20. See previously, Senate Legal and Constitutional Affairs Legislation Committee, Evidence Amendment (Journalists' Privilege) Bill 2009 [Provisions], May 2009, p. 29. 53 D Welch, ‘Rudd witch-hunts cost police, money’, The Age (Melbourne), 11 January 2011 ; 54 Evidence Act 1995 (Cth), s. 126G. See Brandis Bill 29 September 2010; Wilkie Bill 18 October 2010; Amendments (Senator Ludlam, Australian Greens) 3 March 2011. 52

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4. HOW TO ‘UNPROTECT’ JOURNALISTS: REACTIONS TO WIKILEAKS The Australian reaction Despite the Australian government’s commitments to whistleblowing law reform and eventual support for an effective journalism shield law, the conflicted state of political thinking has also been sharply demonstrated by inconsistent reactions to the impact of WikiLeaks. WikiLeaks was launched in January 2007 as a website specialising in the untraceable receipt and publication of documentary evidence from whistleblowers and other leakers, aimed at exposing wrongdoing and abuse of power among institutions anywhere in the world. The high impact of the strategy since 2009, combined with controversies surrounding Julian Assange’s relationships with the traditional or ‘old’ media, have made the organisation a game-changer in debates over public whistleblowing. Wikileaks is now ‘a byword for debate about the very nature of journalism and the role of journalists’.55 According to investigative journalist Andrew Fowler, ‘Wikileaks and Julian Assange have delivered to journalism an old-fashioned idea reborn: real journalism is simply the disclosure of whatever powerful interests want kept secret’.56 While WikiLeaks’ approach and publishing standards are correctly the topic of hot debate, these impacts force us to focus on the role and value of whistleblowing as never before. WikiLeaks’ basic approach to direct on-line news publishing is consistent with the arguments of leading journalists such as Laurie Oakes, that ‘leakers, whatever their motivation, serve the public interest’, even when he assesses this to be ‘probably not the generally held community view’. Leakers’ utility to journalism is unparalleled, because ‘being first with important news is, in essence, what being a reporter is all about’.57 Assange’s tensions with traditional media organisations are owed in part to the reality that for all its problems, WikiLeaks has lifted the bar on what the public can expect by way of transparency, and not only from governments. As Fowler has written, ‘journalists, too, will have to be more demanding of governments if they are to be believed or trusted’.58 The conflicted thinking of Australian leaders about the nature of public whistleblowing was fully revealed in December 2010, when within days of WikiLeaks’ publication of a large volume of U.S. diplomatic cables, Australia’s Prime Minister agreed publicly with U.S. leaders

55

Gunnell (2011). Fowler (2011), p. 236. 57 Oakes (2010), p. 296 58 Fowler (2011), p. 234. 56

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that Assange must be stopped because he had ‘broken the law’.59 This quickly proved to be a premature over-reaction. Not only was the law which Assange had allegedly broken not identified, but the Australian Federal Police could not identify him as having broken any. Similarly, the Attorney-General, Robert McClelland, promising assistance to any U.S. investigation, publicly canvassed the cancellation of Assange’s Australian passport. This threat was promptly countermanded by the Foreign Minister, Kevin Rudd – responsible for passports and consular assistance to Australians – who made it clear that the government had no basis for treating Assange differently to other Australian citizens.60 Putting WikiLeaks in a different category The obvious reason for these conflicting positions was a statement of solidarity with the U.S. government, which had already determined that it intended to find criminal laws under which Assange and WikiLeaks could be rendered inoperable, irrespective of whether any of the disclosures served any public interest. While Assange’s most public woes are concerned with largely unrelated sexual molestation charges in Sweden, his more important woes concern a federal grand jury investigation underway in Alexandria, Virginia, assessing whether charges can be laid not only against alleged whistleblowers, but against WikiLeaks personnel for receiving and communicating the information. The investigation’s sub poenas reportedly indicate it is investigating possible federal offences ‘involving, but not necessarily limited to, conspiracy to communicate or transmit national defence information’ in violation of the U.S. Espionage Act, and ‘knowingly accessing a computer without authorisation or exceeding authorized access’ in violation of the Computer Abuse and Fraud Act, as well as ‘knowingly stealing or converting any record or thing of value of the United States’.61 Political disapproval of WikiLeaks in the U.S. has also seen a concerted effort to recategorise the group as something other than a publisher of news or journalism. WikiLeaks is plainly a publisher of news, and in Australia would be covered by its federal journalism shield law in respect of the confidentiality of sources. However in the United States this categorisation is the target of a powerful counter view, based on a knee-jerk reaction that WikiLeaks not should be eligible to claim the ‘reporter’s privilege’ flowing to investigative journalists under the U.S.

‘PM can't say what law WikiLeaks has broken’, Sydney Morning Herald, 7 December 2010, . 60 See Fowler (2011), pp.215-217. 61 E Pilkington, ‘WikiLeaks: US opens grand jury hearing: First session of process of deciding whether to prosecute website and founder Julian Assange for espionage’, The Guardian , 11 May 2011. 59

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Constitution’s First Amendment.62 Reactions against WikiLeaks are credited as having sealed the fate of the United States’ own long awaited federal journalism shield Bills, which after four years died in January 2011 with the end of the 111th Congress.63 Unlike under the Australian shield law, purely volunteer, part-time or recreational web publishers were to be excluded, in favour of persons who ‘regularly’ participate in news publishing ‘for a substantial portion of the person’s livelihood or for substantial financial gain’. However, to make doubly sure, U.S. congressmen reportedly prepared an amendment to exclude WikiLeaks from any protection, if the Bills had passed.64 The singling-out of WikiLeaks as a web publisher specialising in direct news content, is not limited to its categorisation for the purposes of journalists’ privilege. As reflected in the initial statements of Australia’s Prime Minister, the only true basis on which the U.S. can seek to prosecute WikiLeaks personnel is if shown to have participated directly in the illegal release of information itself – i.e., not the act of publishing, but the act of whistleblowing. However, here the attempt to impose a new and different standard on the conduct of the new media, and WikiLeaks in particular, has reached almost comic proportions. In August 2010, the Pentagon publicly called on WikiLeaks to ‘do the right thing’, return confidential information and desist from encouraging further leaks, labelling its activities as a ‘brazen solicitation to U.S. government officials to break the law’.65 Subsequent statements have indicated that the U.S. government may seek to make a case that such ‘solicitation’ of confidential material, together with provision of technical means for doing so such as secure electronic drop-boxes, can amount to active encouragement or assistance to an unlawful release, such as to render the ‘solicitor’ complicit with the offence. This was the ‘fruit of the poison tree’ theory for which Australia’s Prime Minister became an amplifier in December 2010, defending her claim that Assange had broken the law on the basis the ‘foundation stone’ of publication lay in the ‘illegal act’ of unauthorised disclosure. In fact, this rush to silence WikiLeaks in fact relies on the abandonment of any sustainable legal standard. For example, the WikiLeaks site now complies at least partly with the Pentagon demand, stating that ‘like other media outlets conducting investigative journalism, we 62

See e.g. Peters (2011). Cf the view of the counsel for the New York Times in the 1971 Pentagon Papers case: J Goodale, ‘WikiLeaks Probe: Pentagon Papers Injustice Déjà vu’, The Daily Beast, 12 June 2011 . 63 Free Flow of Information Bills, originating in 2007: H.R. 985 and S. 448. See Peters (2011), p.688. 64 Peters (2011), pp.693-4. 65 ‘Pentagon demands WikiLeaks return files’, United Press International, 5 August 2010 ; V Gienger & A Capaccio, ‘Pentagon Demands WikiLeaks Return All Documents’, Bloomberg Businessweek, 5 August 2010 < http://www.businessweek.com/news/2010-08-05/pentagon-demands-wikileaks-return-all-documents.html>.

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[WikiLeaks] accept (but do not solicit) anonymous sources of information... We do not ask for material’.66 However the Pentagon demand was close to absurd, and the WikiLeaks response incorrect, because it is quite accepted that other media outlets specialising in investigative journalism do actively solicit anonymous and confidential information, just as they have always done. Consider the language used by the Wall Street Journal in explaining its ‘safehouse’ online drop-box for confidential information: We want your help Documents and databases: They're key to modern journalism. But they're almost always hidden behind locked doors, especially when they detail wrongdoing such as fraud, abuse, pollution, insider trading, and other harms. That's why we need your help. If you have newsworthy contracts, correspondence, emails, financial records or databases from companies, government agencies or non-profits, you can send them to us using the SafeHouse service. What to send us SafeHouse's interests are as broad as the world The Wall Street Journal covers - including politics, government, banking, Wall Street, deals and finance, corporations, labor, law, national security and foreign affairs. We're open to receiving information in nearly any format, from text files to audio recordings and photos. ...67 Another example can be found in Australia, where the Australian Broadcasting Corporation (ABC) News website acknowledges even more explicitly that it is inside sources at which this kind of solicitation is aimed: If you have a news tip or you are a whistleblower who would like the lid lifted on a story of public interest, you can contact the ABC News Online Investigations Unit. ... The ABC News Online Investigative Unit encourages whistleblowers, and others with access to information they believe should be revealed for the public good, to contact us. To leak a story, please fill out the form below and click the 'Send' button. Please click here if you wish to send information anonymously. ...68 Neither the U.S. nor Australian government appear to have demanded that News Corporation or the ABC desist from soliciting confidential information in an almost identical way. This is because the standard now imposed on WikiLeaks is not one which has been, or can be realistically imposed on any media organisation – at least, not in any nation claiming to have free media and a commitment to liberal democracy. ‘About Wikileaks’, (viewed 16 June 2011). Wall Street Journal, (viewed 18 June 2011). 68 Australian Broadcasting Corporation (ABC) News Online, ; http://www.abc.net.au/news/investigations/contact.htm (viewed 16 June 2011). 66 67

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Lessons for Australia While debate about the methods and standards of all news publishers should be ongoing, there are signs that even in the United States, it is being recognised that this is a separate debate to whether the media have an accepted role in soliciting and publishing confidential information in the public interest. Although a range of U.S. journalism interests including the Society of Professional Journalists (SPJ) vigorously distanced themselves from WikiLeaks, the correct position on the dangers of the categorisation of media and journalists was the one stated by the SPJ prior to the WikiLeaks controversy erupting: ‘if you have too narrow of a definition... it is the first step to have the government defining what a journalist is. The next step would be the licensing of journalists, and we would be opposed to that.’69 Even the New York Times, whose close involvement with other media organisations in the publication of WikiLeaks material saw it speedily distance itself,70 appears to have more recently recognised the risk of this action. Noting the Obama administration’s ‘unprecedented crackdown’ on official leaking using the Espionage Act, at least one New York Times correspondent is now prepared to describe WikiLeaks as a publisher of information rather than simply a source, noting that the U.S. government is now engaged in a rare effort to prosecute ‘those who publish secrets, rather than those who leak them’.71 The lesson of these events for Australian law reform remains that there is no need to go down this road. Whether or not new rules are needed to regulate how and by whom confidential information is published, it is well established that new rules are needed to govern when it may be disclosed without liability to the officials who disclose. This is for the very reason that automatic, blanket prosecution of leakers, irrespective of the public interest in the disclosure, is no longer a sustainable response – as recognised by the Australian government’s own policy positions on why public interest disclosure legislation is required. A senior Opposition spokesman, Malcolm Turnbull, has reinforced the rationale for such legislation, by observing that the real solution for governments who wish to avoid the embarrassment of unauthorised disclosures, is to maintain their commitment to transparency, and conduct all business in a way that can stand up to scrutiny, if or when its details become publicly known.72

As quoted by W. Casey, ‘Even As Media Evolves, Lawmakers Try To Define It’, National Journal, 19 March 2009 (updated 2 January 2011), (viewed 19 June 2011). 70 See Fowler (2011), pp.158-163. 71 S. Shane, ‘U.S. Pressing Its Crackdown Against Leaks’, New York Times, 17 June 2011 . 72 Turnbull (2011). 69

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As typified by the Spycatcher case in which Turnbull successfully fought the Thatcher government’s attempts to suppress publications of the memoirs of a former British intelligence officer, the answer lies in clearer principles for when and how disclosure serves a sufficient public interest to warrant protection, combined with independent adjudication of when those principles are satisfied. As stated by Justice Michael Kirby, one of the judges in that case, ‘it cannot be left to individual employees to be the final arbiters of the public interest that would obscure disclosure’, but ‘likewise, it cannot be left entirely to the holders of the secrets. They may be blinded by self interest, tradition or the covering up of wrongdoing – so that they do not see where the true public interest lies.’73 The WikiLeaks controversy thus reinforces the rationale for a new whistleblowing framework, so that current unworkable presumptions against any disclosure are removed, and such conflicts made more manageable. Faced with the challenges of the new media age, the present conflicted responses reinforce the need to maintain a clear, long-term vision about the role of public whistleblowing in integrity in government. In turn this reinforces why Australian leaders, and perhaps others, needs to hold their nerve and course in putting in place the type of public interest disclosure legislation to which they have committed.

5. CONCLUSION: PUBLIC WHISTLEBLOWING IN CONTEXT This paper has reviewed key developments bearing on the acceptance of whistleblowing to the media, or public whistleblowing, as a ‘driver’ of political and institutional change through new public interest disclosure legislation. It has principally discussed elements of the Public Interest Disclosure Act 2010 (Qld), the Evidence Amendment (Journalists' Privilege) Act 2011 (Cth) and the proposed Public Interest Disclosure Bill (Cth). As such the paper has focused on just one of three main drivers introduced at the outset, supported by the Australian research. Consistently with the various international suggestions as to the many elements of legislative design involved in good public interest disclosure legislation, overall conclusions about the state of Australian law reform can only be reached having regard to all these drivers. Lead agency support and oversight For example, Australian jurisdictions are also experiencing both innovation and stasis in the establishment of better operational systems for managing internal and regulatory 73

Kirby (1988), p. 3.

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whistleblowing, especially through strong lead agency support and oversight. The leading example here since September 2010 is the Public Interest Disclosure Act 1994 (NSW), an extensively amended and retitled version of the Protected Disclosures Act 1994 (NSW). Under the amendments, the New South Wales Ombudsman has been tasked, equipped and resourced to lead the implementation and independent monitoring of whistleblowing systems and outcomes across all NSW public sector agencies, in a far more ambitious way than previously attempted in Australia, and possibly anywhere in the world. The proposed federal Bill is expected to allocate comparable responsibilities to the Commonwealth Ombudsman, but it is as yet unknown whether its powers will be sufficient, or whether the function will be adequately resourced. By contrast, the Public Interest Disclosure Act 2010 (Qld) has allocated comparable responsibilities to the Queensland Public Service Commission. Whether this will prove effective is similarly yet to be seen, given the reduced level of independence of such an agency relative to an Ombudsman’s office in Australia, and reduced experience in substantive investigations. In other jurisdictions, similar questions apply, or the relevant provisions are is yet to be reformed. Consequently ongoing work is required to support change, and to establish which arrangements make for best practice and which may have simply involved a rearrangement of deck-chairs. Compensation The greatest challenges appear to be in bringing Australian whistleblowing law into line with world’s best practice for compensation, for those whistleblowers whose lives and careers are adversely affected by their prosocial service – whether the whistleblowing is internal, regulatory or public in nature. It is now clear in Australia that prevention and remediation of detrimental outcomes for whistleblowers cannot rely simply on the criminalisation of reprisals as once expected, and as mentioned at the outset – irrespective of how the penalties compare to those involving flying foxes. This is because most of the adverse actions experienced by most whistleblowers do not, and are unlikely to ever satisfy the characteristics of a criminal offence. Retention of the offence is an important backstop, and its utility should be enhanced where possible. However the most effective route lies in replacing current general compensation provisions with more tailored, lower-cost, specialist procedures for securing meaningful and exemplary compensation for the types of adverse employment action, victimisation and damage to well-being that flow most commonly from organisations’ failures to act on disclosures, and support and protect those who make them.

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On this issue, no Australian jurisdiction has yet approached the standard set in unitary jurisdictions by the UK Public Interest Disclosure Act. While it improved the criminal provisions dealing with reprisal, the Public Interest Disclosure Act 2010 (Qld) did not take up the opportunity to provide a low-cost compensation avenue for detrimental action short of dismissal, through the state’s system of employment law. Instead, it provided a new mechanism for complaining of victimisation under anti-discrimination legislation – a mechanism which has not proved productive in South Australia or Western Australia. The most worrying jurisdiction is the federal one, where the government’s policy position of March 2010 recognised that compensation mechanisms were needed, but provided no guidance on how the federal legislation will meet that need. As it stands, this is a major and could yet be a fatal flaw to a workable federal whistleblowing regime. Business and civil society sectors This paper has dealt only with legislative change affecting the government sector. By contrast, only marginal progress has been made in Australia towards any comprehensive whistleblower protection in the business and non-government sectors. A seamless system of protection across all sectors of employment, such as through the UK PIDA approach, is not especially feasible in federal countries such as Australia, where the systems of public and private sector employment law have traditionally been fragmented between federal and state jurisdictions. Nevertheless, major restructuring of Australia’s workplace relations system, under the Fair Work Act 2009 (Cth), along with new uniform national health and safety laws, now makes the potential for more seamless regulation more possible. So too, steps are being taken in some areas of employment to see whistleblower protection built into collective agreements, and thus into enforceable employment law, in a bottom-up fashion. At present, the only top-down legislative recognition of whistleblowing in the private sector remains Part 9.4AAA of the Corporations Act 2001 (Cth), which is Australia’s equivalent to the much criticised U.S. Sarbanes-Oxley disclosure provisions. The Australian provisions are widely accepted as being badly framed, irrelevant to the day-to-day practice of companies and their chief regulator (the Australian Securities and Investments Commission), and sorely in need of revision. In October 2009, the Assistant Treasurer issued an options paper for reform of the provisions, as part of a low-key review conducted by the federal Treasury and AttorneyGeneral’s Department.74 However the review was limited to compliance and enforcement of the corporations law, rather than any comprehensive approach to whistleblowing concerning all 74

Attorney-General’s Department (2009).

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major types of potential wrongdoing within or by non-government employers. The review has not been finalised or publicly reported on, apparently while the relevant agencies await the outcome of federal action on the public sector’s Public Interest Disclosure Bill. In conclusion The Whistling While They Work and Blowing Boldly research projects have continued to reinforce the importance of strong legislative drivers if governments and powerful institutions are to take whistleblower protection more seriously. Extending protection to whistleblowers who go public, if government does not act, is just one of the key drivers for change reviewed in this paper. Substantial legislative reform in Queensland and New South Wales, and potential reform federally, has the potential to make a difference. However, many challenges remain. Together these results make for a mixed report card. On one hand, Australian governments have been restating and strengthening their ‘in principle’ commitments to values of transparency and integrity in government, and continuing to innovate in legislative and policy responses to whistleblowing in important respects. On the other hand, international political pressure and vacillations in leadership, combined with natural institutional resistance to change, mean that key reforms also hang in the balance. Others are guaranteed to be an ongoing process.

REFERENCES Attorney-General’s Department (2009). Improving Protections for Corporate Whistleblowers: Options Paper, Canberra, October 2009. Australian Labor Party (ALP) (2007). Government Information: Restoring trust and integrity, Australian Labor Party Election 2007 Policy Document, Canberra, October 2007. Banisar, D. (2009/2011). Whistleblowing – International Standards and Developments. Background paper written for Transparency International (2009); also in I. E. Sandoval (ed), Corruption and Transparency: Debating the Frontiers Between State, Market and Society, World Bank Institute for Social Research, UNAM, Washington DC (2011) . Brown, A. J. (2007). Privacy and public interest disclosures – when is it reasonable to protect whistleblowing to the media? Privacy Law Bulletin 4(2), 19-28. Brown, A. J. (2008) (ed.). Whistleblowing in the Australian Public Sector: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations, Australia & New Zealand School of Government / ANU E-Press, Canberra. Brown, A. J. (2009a). 'Returning the Sunshine to the Sunshine State: Priorities for whistleblowing law reform in Queensland', Griffith Law Review Vol 18(3): 666-689.

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Brown, A. J. (2009b). Whistleblowing legislation in Queensland: the agenda for reform, Report prepared for the Queensland Government Integrity and Accountability Review (available at http://www.premiers.qld.gov.au/community-issues/open-transparentgov/submissions/submissions-161-180/a-j-brown.aspx, viewed 14 October 2009). Brown, A. J. (2010). ‘Whistle can now be blown louder’, The Australian: Legal Affairs, 17 September 2010, pp.33-34. Brown, A. J., Latimer P., McMillan J. & Wheeler, C. (2008). 'Towards Best Practice Whistleblowing Legislation for the Public Sector: the Key Principles'. In A. J. Brown (ed.), Whistleblowing in the Australian Public Sector:Enhancing the theory and practice of internal witness management in public sector organisations (pp. 261-288). Canberra: ANU E Press. Commonwealth Government (2010). Government Response: Whistleblower protection: A comprehensive scheme for the Commonwealth public sector. Tabled by Senator J Ludwig, Special Minister of State, 17 March 2010. Canberra: Commonwealth of Australia. Commonwealth Parliamentary Debates (Hansard), House of Representatives, Canberra. Davies G, Hon (2005), Report of Queensland Public Hospitals Commission of Inquiry, Queensland Government, Brisbane. Electoral and Administrative Review Commission (EARC) (1991). Report on protection of whistleblowers, October 1991, Queensland Government, Brisbane. Fowler, A. (2011). The Most Dangerous Man in the World: A Definitive Account Of Julian Assange And Wikileaks, Melbourne University Press. Gunnell, B. (2011). ‘Rebel, public nuisance and dreamer’, Griffith REVIEW No 32, 13-37. House of Representatives Standing Committee on Legal and Constitutional Affairs (2009). Whistleblower protection: A comprehensive scheme for the Commonwealth public sector. Canberra: Commonwealth of Australia. Kirby, M. D. (1988). 'Book Review: Yvonne Cripps, "The Legal Implications of Disclosure in the Public Interest", Prometheus, Issue 1, 1988; Speeches of the Hon Michael Kirby, National Library of Australia, No. 703. Lewis, D. (1996). 'Employment Protection For Whistleblowers: On What Principles Should Australian Legislation Be Based?' (1996) 9 Australian Journal of Labour Law 1-27. Mazerolle, P. & Cassematis, P. (2010). ‘Whistle While You Work: lessons to be learned from the pan-Australian research’, in D. Lewis (ed), A Global Approach to Public Interest Disclosure, Edward Elgar, Cheltenham UK. Miceli, M. P, Near, J. P. & Dworkin, T. M. (2008). Whistleblowing in Organisations. Routledge. Miceli, M. P., & Near, J.P. (1984). The relationships among beliefs, organisational position, and whistle-blowing status: A discriminant analysis. Academy of Management Journal, 27(4), 687-705. Moss, I. (2007). Report on the Independent Audit into the State of Free Speech in Australia, Australia’s Right to Know Committee, Sydney, 31 October 2007. Oakes, L. (2005). ‘Pillars of democracy depend on leaks’, The Bulletin / National Nine News, 24 August 2005 . Oakes, L. (2010). On the Record: Politics, Politicans and Power. Hachette Australia.

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OPSC (2006). Review of the Whistleblowers Protection Act 1994 (Qld). Office of the Public Service Commissioner, Queensland Government, Brisbane, October 2006 . Osterhaus, A. & Fagan, C. (2009). Alternative to Silence: Whistleblower Protection in 10 European Countries, Transparency International, Berlin. Peters, J. (2011). ‘WikiLeaks Would Not Qualify to Claim Federal Reporter’s Privilege in Any Form’, Federal Communications Law Journal Vol 63(3), p.667. Queensland Parliamentary Debates (Hansard), Government Printer, Brisbane. Roberts, P. & Brown, A. J. (2010). ‘The Australian legislative experience’, in D. Lewis (ed), A Global Approach to Public Interest Disclosure, Edward Elgar, Cheltenham UK. Roberts, P., Brown A. J. & Olsen J. (2011). Whistling While They Work: A good practice guide for managing internal reporting of wrongdoing in public sector organisations, ANU EPress, Canberra (forthcoming). Senate Legal and Constitutional Affairs Legislation Committee (2010). Evidence Amendment (Journalists' Privilege) Bill 2010 and Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2), November 2010, Canberra. Senate Select Committee on Public Interest Whistleblowing (1994). In the public interest: Report of the Senate Select Committee on Public Interest Whistleblowing. Canberra: The Parliament of the Commonwealth of Australia. Smith, R. & Brown, A. J. (2008). 'The Good, The Bad and The Ugly: Whistleblowing Outcomes' in Brown, A. J. (ed), Whistleblowing in the Australian Public Sector: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations, Australia & New Zealand School of Government / ANU E-Press, Canberra. Tracey, M. (2010). 'Journalist Shield Laws', 29(2) Communications Law Bulletin 12. Thomas, H. (2007). Sick to Death. Allen & Unwin, Crow's Nest, Sydney. Turnbull, M. (2011). ‘Reflections on Wikileaks, Spycatcher and freedom of the press’, Speech, Sydney University Law School, 31 March 2011 . Vandekerckhove, W. (2010). ‘European whistleblower protection: tiers or tears?’ in D. Lewis (ed), A Global Approach to Public Interest Disclosure, Edward Elgar, Cheltenham UK. ______________________________