Australians have a right to know what their government is up to, writes Professor Allan Fels.
Australians have a right to know what their government is up to, writes Professor Allan Fels.

Stakes are too high to ignore press freedom red flags

Whistleblowers are unsung heroes.

They courageously expose unethical, unlawful and corrupt behaviour when there is no other way of bringing it to light and when there are damaging personal consequences for them.

I know this well.

During my time as Chair of the Australian Competition and Consumer Commission (ACCC) most of the big cartel cases - where competitors secretly agreed to put up prices at great expense to consumers - were detected because of tip offs from whistleblowers. Without them, the ACCC and an array of law enforcement bodies in the fields of competition, corporations, consumer, health and safety, environmental and other fields of law would not achieve half the results they do.

They can also be especially important as sources of information for our police and national security agencies - remember John Howard's $15 million 2003 mailout of fridge magnets with crisis contact numbers and tips on how to spot terrorists?

Professor Allan Fels. Picture: supplied
Professor Allan Fels. Picture: supplied

It is the essence of most unlawful corporate activity for it to be done in secret. And it is not very different in government. This is a key reason for the importance of whistleblowing. It is one of the few ways - often the only way - that secret unlawful behaviour can be detected. Yet the experience of whistleblowers has not been a happy one. Few feel supported, few feel their disclosures are adequately investigated - especially if they are only made internally, free from external exposure.

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And there is often reprisal. This is due, in large part, to the near impossibility under current laws of protecting whistleblowers from retaliatory action; of holding those responsible for reprisals to account; of effectively investigating alleged reprisals and of whistleblowers being able to seek redress for reprisals.

Whistleblowing is normally personally very costly. whistleblowers lose their jobs and have difficulty getting other jobs or suffer social ostracism in their organisations. Now we even have intimidation and legal action against whistleblowers exposing scandal and possible corruption. This is especially concerning when there are already too few protections of integrity in government (e.g. the lack of a federal anti-corruption agency).

Yet the value of whistleblowing cannot be overstated. It is integral to fostering transparency, promoting integrity and detecting misconduct. It encourages the reporting of misconduct, fraud and corruption. It helps promote a culture of accountability and integrity in both the public and private institutions; and it empowers citizens against corruption.

Traditionally, the criticisms of the shortcomings of whistleblowing protections have been made in the context of the private sector. Indeed we have still some way to go in that field. It would help if we introduced a system of rewards for whistleblowers, broadly similar to those in the United States. This would reduce the disincentives.

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Having said that, the legislative protections under our business laws are now far stronger than in the public sector. We are getting close to a norm where it is not illegal, let alone criminal, to blow the whistle publicly on corporations. But for the public sector, the norm is approaching the opposite: automatic illegality.

The public sector has long argued that virtually everything it does should be covered in a shroud of secrecy. Up to a point there should be safeguards against automatic public disclosure of everything being done in the public sector. But typically the protection of confidentiality is taken much too far, and the protections for whistleblowing are too limited, too circumscribed, and too inhibiting for whistleblowers.

Richard Boyle, an ATO whistle blower, is now facing jail. Picture: Dean Martin
Richard Boyle, an ATO whistle blower, is now facing jail. Picture: Dean Martin

Strangely, the restrictions and prohibitions on whistleblowing (including "leaking" of information about government decisions and reports) sits confusingly alongside the practice of politically sanctioned daily "leaks" of new government policies (often done selectively and misleadingly).

The public has a right to know what happens to our taxes. The government takes hundreds of billions each year.

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The public also has a right to know about the use of the enormous coercive power we confer on officials to regulate behaviour. The balance between the public's right to know and government's desire to surround its actions with walls of secrecy has gotten out of hand.

The right to know should not be jeopardised in the way it is by limited and non-reassuring legal protections, and a culture of intimidation.

Professor Allan Fels AO is the former Chair of the Australian Competition and Consumer Commission.


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