Whistleblowers and travel rorts

Here’s a piece of blatant and unashamed recycling.  I run a discussion board for my Intro to Public Law students where they’re welcome to post and discuss news items with a public law angle.  Over the weekend one of them posted a link to the current stoush between Defence Minister Joel Fitzgibbon and his Department.

The student’s comment was that “Its nice to see what we study actually unfold before our eyes.  Will the Defence Minister retain the confidence of parliament?”   Of course, the immediate answer to that question is yes given that Labor has the numbers in the House of Reps.  However, I responded with some more general observations and it occurred to me that they might be worth posting here at Troppo what with Nicholas being away overseas and all:

Actually it’s relatively common for MPs on all sides to occasionally forget to declare assets, gifts etc.  They are events that both sides of politics do their best to portray as improper when they occur, and it’s certainly true that disclosure rules are an important part of accountability and transparency and therefore ultimately responsible government.  Moreover, personal gifts (especially of a free overseas trip) might conceivably confer influence on the giver and a sense of obligation in the recipient so the obligation of disclosure must be taken seriously.  Nevertheless, Fitzgibbon was in opposition at the time, and even now it isn’t obvious how a Chinese-Australian businesswoman could exercise influence over anything relevant to the Defence portfolio (which is Fitzgibbon’s current role).

Ultimately this is almost certainly just a short term political issue.  Various Howard government Ministers found themselves in similar non-disclosure positions over the years and weren’t generally required to resign.  As Michelle Grattan observed soon after the Rudd government won the last election promising (as had Howard before him) to lift standards of Ministerial conduct:

In 1996-97, several ministers and parliamentary secretaries had to resign because of breaches of the code. An affair involving travel rorts claimed multiple casualties.

After the first term, Howard took a very different attitude. He decided that standing by his team was the best defence and that excessive regard to propriety was too costly.

Malcolm Turnbull will make as much political mileage as he can while the issue still generates news headlines.  Of course, if Fitzgibbon puts another foot wrong and/or if the Defence Department public servants who are allegedly out to “get” him manage to find more dirt on him then the picture may change.

At the moment, the more interesting issue in a constitutional sense is to ascertain whether Defence Department and/or DSD officers really did investigate Fitzgibbon.  If they did, that would unquestionably be improper and seriously contrary to the doctrine of responsible government. Departments are responsible to their Minister not the other way around. 

If bureaucrats hold concerns about the propriety of their Minister’s actions, the accepted proper course of action is to report the matter to the Prime Minister or to the CEO of the Department of Prime Minister and Cabinet.   However, the problem with any such course of action is that the CEO of PM & C is a highly political animal in the modern Australian system, and bureaucrats might justifiably feel that they’d get a very poor reception from either the PM or CEO.  That is especially so given that Fitzgibbon is tasked with rooting out longstanding massive waste and incompetence in Defence, a job both government and opposition support, and that this is undoubtedly why the Defence bureaucrats are trying to “get” him (if indeed that’s true; that notoriously unreliable source Glenn Milne reckons the leak more likely came from the NSW Right of the ALP).

What this saga actually illustrates is that there is a real need for well-crafted whistleblower legislation at federal level. It already exists in some States and is currently being implemented in the NT, indeed CDU law lecturer Caroline Heske is currently working on secondment with the Department of Justice on implementing the NT’s new whistleblower regime.  Such a scheme at federal level would give disgruntled public servants (whose motives are often impure) an appropriate avenue for complaint whereby they would be protected from retribution for making disclosures (although some existing whistleblower models conveniently omit Ministers from the list of subjects of protected disclosure).  Whistleblower legislation has not worked very well historically, however, and many whistleblowers still choose to “leak” their allegations anonymously to the media rather than seek the protection of the legislation where it exists.  There are more ways than one to skin a cat, as they say, and Ministers and CEOs tend to have long memories.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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15 years ago

The motive is irrelevant to the level of public benefit from a blown whistle and I agree that protection is a good thing, though it is harder for me to see how that might be effectively done.

The ALP made a great play in the Qld election of Clive Palmer owning the LNP because of his contributions to the party. Does not the same claim apply to Ms Liu and Fitzgibbon? Yes, I think the claim is silly, but hypocracy devalues so much public debate that it should be banned.

15 years ago

If bureaucrats hold concerns about the propriety of their Ministers actions, the accepted proper course of action is to report the matter to the Prime Minister or to the CEO of the Department of Prime Minister and Cabinet.

What if the impropriety might constitute a criminal offence? Neither the PM or the DPMC are law enforcement organizations.