Courage needed to protect whistleblowers
IN 2007, the ALP made strong commitments to greater transparency in government, including the reversal of a draconian approach to whistleblowers. In line with the report "Whistleblowing in the Australian Public Sector", launched by Special Minister of State John Faulkner in September 2008, a House of Representatives inquiry chaired by Mark Dreyfus QC recommended a comprehensive whistleblowing scheme, and new legislation. The government announced its response to the inquiry in March last year, accepting the key recommendations including new rules for when wrongdoing could be the subject of further disclosure to the media. However, that represents the last point at which anything is known about the content of the federal government's proposed bill. In August, the minority Labor government was formed on the support of three independent members and the Greens.
Two of these agreements included commitments to introduce legislation to protect whistleblowers and seek to have such legislation passed by June 30. Almost four years since the new federal commitments, this self-imposed deadline is about to pass without the government having made any recent detectable progress. No alternative timetable for such a bill has been announced, nor any consultation between the government and key stakeholders on many outstanding issues. If the timetable continues to slip, there is little prospect of these issues being resolved in time for the bill to be introduced, debated and passed by the present parliament. The past 10 months have seen a smaller breakthrough with the introduction of a federal shield law for journalists, strengthening their ability to protect the identity of confidential sources. For many legislators, the shield law may appear to be a substantial step towards the protection of whistleblowers. However, it shields journalists from prosecution for contempt. It does nothing, at law, to protect whistleblowers from prosecution for releasing information. The conflicted thinking of Australian leaders about the nature of public whistleblowing has also been demonstrated by inconsistent reactions to the online publisher WikiLeaks. In December last year, after WikiLeaks's publication of a large volume of leaked US diplomatic cables, Australia's Prime Minister agreed with US leaders that WikiLeaks founder, Australian citizen Julian Assange, must have broken the law. This proved to be a premature over-reaction. Not only was the law Assange had broken not identified, but the Australian Federal Police could not identify him as having broken any law. Now it is known that a US grand jury investigation is underway in Virginia, assessing whether charges can be laid not only against alleged whistleblowers, but against WikiLeaks for conspiracy to communicate or transmit national defence information in violation of the US Espionage Act. However, here the attempt to police 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, and stop encouraging leaks. However, this demand is close to absurd, because other media outlets continue to actively solicit confidential information, just as they have always done. The Wall Street Journal's "safehouse" online drop-box tells whistleblowers that secret documents and databases "are the key to modern journalism, but they are 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". In Australia, the ABC website says: "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." The standard now imposed on WikiLeaks is not one that 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. The lesson 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, new rules are needed to govern when it may be disclosed without liability to the officials who disclose. Automatic prosecution of leakers, irrespective of the public interest in the disclosure, is no longer a sustainable response as recognised by the Australian government's commitments to public interest disclosure legislation. Faced with the challenges of the new media age, the responses reinforce the need to maintain a clear, long-term vision about the role of public whistleblowing. Australian leaders need to hold their nerve and course in putting in place the type of public interest disclosure legislation to which they have committed. Together these results make for a mixed report card. On one hand, Australian governments have been restating their in-principle commitments to transparency in government, and continuing to innovate in legislative and policy responses to whistleblowing in important respects. On the other hand, key reforms also hang in the balance. A.J. Brown is professor of public law at Griffith University. This is an edited extract of his paper Flying Foxes, WikiLeaks and Freedom of Speech to the International Whistleblowing Research Network conference under way in London.