Blueprint for Free Speech. Submission to: Open Government Partnership Australia Anti-Corruption Working Group 2016

Transcription

1 Blueprint for Free Speech Submission to: Open Government Partnership Australia Anti-Corruption Working Group March 2016

2 Submission to: Open Government Partnership Australia 24 March 2016 Thank you for the opportunity to provide comment and submit to the Anti-Corruption Working Group for Open Government Partnership Australia. Blueprint for Free Speech (Blueprint) is an Australian based, internationally focused not-for-profit concentrating on research into freedoms law. Our areas of research include public interest disclosure (whistleblowing), freedom of speech, defamation, censorship, right to publish, shield laws, media law, Internet freedom (net neutrality), intellectual property and freedom of information. We have significant expertise in whistleblowing legislation around the world, with a database of analyses of more than 30 countries whistleblowing laws, protections and gaps. 1. Current Landscape for Whistleblowers in Australia Over recent years, Australia has slipped alarmingly down international recognised anti-corruption data polls. Not only does this downward slide (falling six places since 2012) show the pervasive and impenetrability of corruption across the globe, but also the need for governments to ensure regular reviews of their anti-corruption frameworks. This is exemplified in whistleblowers aiding Australia s first prosecutions for foreign bribery (the Securency Ltd and Note Printing Australia cases). In 2013, the passage of the Public Interest Disclosure Act 2013 (Cth) ( PIDA 2013 ) was an important step forward in Australia s legal protection of whistleblowers. However, crucial gaps remain in Australia s anti-corruption framework. In particular, protections for whistleblowers in the private sector are noticeably deficient. Further education and promotional efforts are required to ensure that all those potentially covered by the whistleblower protections are aware of their rights, as well as superiors being aware of their obligations towards whistleblowers before, during and after a disclosure. Further, the blanket exclusion of intelligence information from disclosure in the public interest remains highly problematic. Finally, consistency in whistleblower protection at both state and federal level would help to provide much need reliability to Australia s whistleblower protection framework. 2. Problems with Existing Whistleblower Protections Detailed below are some the pertinent issues that Blueprint sees within the existing whistleblower protection law, particularly within the Public Interest Disclosure Act a. The Public Interest Disclosure Act 2013 i. Act must cover the Private Sector 2

3 One of the most important ingredients for functioning legislation is consistency. As the law currently stands, the principal inconsistency remains the exclusion of the private sector from whistleblower protection. The lines between public and private sector are becoming further blurred as privatisation of the public service continues. It is therefore crucial that the private sector be offered and afforded the same protections for disclosing wrongdoings in the public interest as those engaged in the public sector. The Corporations Act 2001 (Cth) currently provides some piecemeal protections for private sector whistleblowers. 1 Under the Act, whistleblowers are provided with protection against express or implied victimisation due to disclosures, as well as compensation in the form of damages. 2 Despite this, the Senate Economics Committee recommended a complete overhaul of private sector whistleblowing regulation. 3 Further, according to a Deloitte assessment from 2012, 83% of wage and salary earners were employed in the private sector. 4 Wrongdoing routinely occurs within the private sector. Excluding private sector whistleblowers from protection under the current Australian framework is also to ignore the importance of whistleblowers in the private sector that expose wrongdoing. Wrongdoing that is classified under the public interest is the same, irrespective of who is disclosing the information. Notably, the Public Interest Disclosure Act 1998 (UK), as embedded in the Employment Rights Act 1996 (UK) provides cover workers in both the public and the private sector who have sought to disclose and expose wrongdoing. ii. Promotion, Awareness and Independent Advice There is a lack of awareness surrounding the current rights and obligations under both state and federal legislation in regard to public interest disclosure. Blueprint believes that the lack of awareness surrounding the current disclosure framework is a key issue for whistleblower protection in Australia. A thorough promotional mechanism is required (for both employees and employers) to ensure the complete effectiveness of the implementation of the current framework. The reasoning behind this awareness mechanism is two-fold. First, a comprehensive educational mechanism ensures that all managers/superiors in public office are aware and cognisant of their obligations and duties towards their employees under the Act. This enables those employers to provide and ensure adequate protection for individuals who make disclosures of wrongdoing in the public interest. Second, education and awareness of the Act, and employees rights and protections under it, will increase the use of the Act. Many employees are concerned about possible repercussions and retribution that they may face in cases where they disclose sensitive or public interest information. At the top of the list of these concerns are employment security, future career prospects, and in some cases, their own personal safety and that of their family. By ensuring a comprehensive educational mechanism on the functioning of the Act, both employees and managers/superiors may feel more comfortable disclosing information as well as ensuring the protection of those who choose to disclose. 1 Corporations Act 2001 (Cth) Part 9.4AAA. 2 Corporations Act 2001 (Cth) Part 9.4AAA, 1317AD(b). 3 Senate Economic Committee 4 Deloitte Access Economics The economic contribution of the private sector Deloitte and Australian Institute of Company Directors (Australia, 16 March 2012) 3

4 Issues of independent advice and/or legal advice enabled within the Public Interest Disclosure Act 2013 were raised by Blueprint in their recent submission to the Australian government s statutory review of the Act (16 March 2016). iii. Access to Intelligence Information Blueprint has consistently contended that the exclusion of intelligence information from disclosure in both federal and state legislation is highly problematic and contrary to the purpose of public interest. Intelligence information is a very contentious and difficult area of public interest disclosure law, as a proper and fair balance is needed between maintaining a certain level of necessary secrecy, as well as the ability to disclose certain intelligence information that is genuinely in the public interest. Currently, the PIDA 2013 excludes any external disclosures of intelligence information under Sections 33 and 41 of the Act. The Act defines intelligence information very broadly, including almost all informational relatable to the intelligence agencies in Australia. This broad definition leads to a highly restrictive approach to the disclosure of intelligence information, essentially making any form of intelligence information non-disclosable, irrespective of whether the information is evidence of wrongdoing that is within the realms of the public interest. In 2015 this was worsened by the passage of amendments to the ASIO Act 1979 which created a special class of operations called Special Intelligence Operations, with even more draconian restrictions on what was or was not disclosable. An infraction of the ASIO Act now carries criminal penalties punishable by imprisonment for up to 10 years. Additionally, the inability to disclose evidence of wrongdoing in the public interest in relation to Ministers, politicians as well as the judiciary is problematic. By excluding individuals who hold public office from receiving disclosures in the case of wrong doing is seemingly counter intuitive to the purpose of public interest disclosures and the Act as these are the kinds of people who might have the ability or mandate to rectify any wrongdoing. iv. Remedies A further issue that Blueprint believes requires attention is the range of remedies available to whistleblowers. In our submission to the Senate Economic Committee Blueprint mooted the suggestion of introducing qui tam remedies for whistleblowers that help bring wrongdoers to prosecution. Qui tam remedies provide that individuals who assist in a prosecution may receive a part share of any penalty imposed. Such remedies have proven successful both in the United States and South Korea (two of Australia s largest trading partners) in regard to whistleblowers. Compensation schemes are important in ensuring an equitable balance to the risks taken by whistleblowers. 3. Protection at the State Level Upgrades of the legal frameworks for whistleblower protection took place in Queensland (Public Interest Disclosure Act 2010), NSW (Public Interest Disclosures Act 2003 [amended 2010, 2012]) and ACT (Public Interest Disclosure Act 2012) Despite these upgrades, state-level protection frameworks remains problematic. Many of the protections provided under state legislation remain inconsistent and out of step with best practice for whistleblower protection. 4

5 Blueprint argues that for the proper functioning of whistleblower protection across the board in Australia, both federal and state legislation must be consistent in their definition and approach. This inconsistency is still a noteworthy problem within the Australian framework, as we can see in the differences between state level legislations. For example, while NSW, Queensland and WA have incorporated institutional approach 5 to their legislation, the ACT has allowed for both institutional and media disclosures. The institutional approach has been shown to be effective within the two-tier federal/state system in Australia (and elsewhere). Blueprint suggests that the consistent incorporate this institutional approach across the board to ensure maximum efficiency. Furthermore, the balance created between institutional and media disclosures within ACT s Public Interest Disclosure Act 2012 should be held up as the current benchmark for whistleblower protection. Despite this, it is noted that there is difficulty in mirroring both federal and state legislation. The PIDA 2013 is embedded into federal employment law (insofar as the remedies provided by the Act are accessible). In contrast, this may be difficult at the state level due to employment law is largely administered at the federal level. In the face of this difficulty, it may be more reasonable to expect, at the very least, uniformity of legislation among state-level whistleblower protections. Notwithstanding, this may be an expensive and time-consuming task. 4. Conclusion Australia has made many positive steps forward in terms of adopting some best-practice mechanisms for their whistleblower protection framework. Nevertheless, issues and gaps still remain in the current framework. Many of the points raised in this submission refer to said gaps, including lack of awareness, exclusion of the private sector, as well as intelligence information, lack of clarity on remedies, and finally, disjointed legislation at the state level. All of these issues require attention to ensure the optimised functioning of whistleblower protection in Australia. Blueprint would like to take the opportunity again to thank you for your time in considering our submission and reiterate its enthusiasm in assisting the you further in whatever way it might deem us to be helpful. Please contact us about this submission or any other matter. Blueprint for Free Speech March 2016 Blueprint For Free Speech PO Box 187, Fitzroy VIC Australia See A J Brown Towards Ideal Whistleblowing Legislation? Some Lessons from Recent Australian Experience EJICLS (2013) 2(3) 22. Institutional or structural whistleblowing protection is described as seek[ing] to normalise whistleblowing in organisational and regulatory behaviour by establishing legal requirements for internal and external reporting avenues, and ensuring that investigative obligations are met. it also mandates systems and procedures for the support and protection of whistleblowers from the time of disclosure, rather than waiting for remedies to pursued after retaliation has occurred. 5