Blowing the whistle on “whistleblower” laws

The Northern Territory’s Martin Labor government is about to introduce so-called “whistleblower” legislation here. I only found out when an ABC radio compere rang up wanting me to do an interview about it (which I will be on Monday morning). I had to confess that I’d been so busy with uni administration tasks that I hadn’t heard, which is a bit embarrrassing given that my academic area is public law, and “whistleblower” laws are an integral part of the armoury of public accountability/transparency measures in modern Australia.

Anyway, I’ve boned up on it overnight, and I’m sad to report that the NT’s proposed laws are a bit of a disappointment. The Senate looked at whistleblower legislation way back in 1994 and made no less than 39 recommendations for reform of such laws. As far as I can see so far, the Martin government’s Bill picks up few if any of these reforms, and mostly just copies the existing Victorian and Tasmanian models.

Clare Martin’s government certainly deserves credit for introducing both “whistleblower” and Freedom of Information laws since it won office; the CLP resisted doing so throughout its 23 years in office. But the NT “whistleblower” Bill is essentially the same as similar legislation in other States (especially the Victorian and Tasmanian models), with only minor improvements. And “whistleblower” laws in those other States have been a hopeless failure, as this article by Kim Sawyer explains:

Australia, in particular, has failed its whistleblowers. The first whistleblower act was passed in South Australia in 1993, and legislation now extends to most states and territories. There is also narrowly defined federal legislation.

Most of the whistleblowing acts have penalties for victimisation. For example, the Victorian act of 2001 carries penalties of up to two years’ jail. Australian whistleblowing acts have considerable diversity of penalties, procedures and jurisdiction.

But they have one thing in common. There has not been a single prosecution under any Australian whistleblowing act. Whistleblowers simply do not use the legislation. And with good reason. The various legislations are not credible, because they are never enforced.

The protection of whistleblower laws is largely illusory, and the new NT bill does nothing to fix this. It doesn’t even apply to disclosures against private government contractors, a major omission in these days of rampant outsourcing and privatisation of government services.

It’s always going to be difficult to prove that a department or agency is victimising a whistleblower because of his whistleblowing activities. It will usually be possible to manufacture a vaguely plausible pretext for taking disciplinary or transfer action against a ‘dobber’, or for always finding that other candidates for promotion are superior. Indeed the Senate enquiry into whistleblowing laws some years ago even found that departmental referrals of whistleblowers for psychiatric assessment were disturbingly common, labelling the practice “one of the most insidious and vile weapons used against whistleblowers“.

Because it’s so difficult to prove that disciplinary action, forced transfer or failure to win promotion are motivated by retribution for whistleblowing and not for some (at least arguably) legitimate reason, prosecutors will tend to be reluctant to lay charges because the evidence isn’t there to sustain a conviction. Suspicion isn’t proof.

The same problem occurs with the ostensible entitlement whistleblowers have under the legislation to seek an injunction to restrain victimisation or to sue for damages. Again how do you prove the motivation? And there’s a further problem with this so-called protection. Whistleblowers can really only take this sort of action if they can afford to employ a lawyer, and they also run the risk of a heavy costs order if they lose (as they probably will given the problems of proof of motive). This aspect of the problem could be relatively easily remedied. Whistleblowers could be made eligible for legal aid funding, and expressly exempted from liability for costs in the event of losing as long as their complaint was seen to be bona fide and not frivolous.

Addressing the problem of actually proving the motive for adverse treatment (victimisation?) is more difficult. You could reverse the onus of proof, I suppose, so that it would be presumed that disciplinary or similar action against a “whistleblower” after he/she has blown the whistle was victimisation unless the department could prove otherwise. But that might cause some potential problems too. What is to stop a person facing a real but not yet manifest prospect of disciplinary action from making a “whistleblower” disclosure so that they gain the protection of the presumption of victimisation? Investigation would no doubt ultimately prove their complaint to be without substance, but a determined manipulator (and they certainly exist in the public service) could probably stave off disciplinary action for quite a long time. And how would you apply such a presumption to failure to gain promotion? A whistleblower would essentially be entitled to any job they applied for, unless there was another applicant so obviously superior that there was no room for any suggestion of victimisation.

The bottom line? I don’t really think reversing the onus of proof is viable. But certainly making legal aid available to whistleblowers, and exempting them (contingently) from costs liability, would be a big step forward, and might in itself deter a lot of victimisation. Nevertheless, as Chris Nash observes:

Whistleblowers almost always come to personal and professional grief as a result of the public stand they take against their employer (Lennane, 1995; Dempster, 1997). There is whistleblower protection legislation in some States but it affords little protection from the personal and professional catastrophes most whistleblowers suffer. Whistleblowers Australia recommends that those contemplating taking a dissident stand against their employer on an issue of principle should think long and hard before doing so, and if they decide to proceed should not trust internal complaint mechanisms, should gather as much documentary evidence of their allegations as possible and then take a very public stand through the media (Lennane, unpublished paper). This advice is an affirmation of media power, and of the profoundly conflictual basis of public affairs. The contrasting experiences of two whistleblowers/media sources in the debate about the justification for the 2003 invasion of Iraq¢â¬âAndrew Wilkie in Australia and David Kelly in the UK¢â¬âillustrate the range of consequences that confront whistleblowers.