Australia’s whistleblower laws are ‘impenetrable’, Federal Court judge says





Updated

June 12, 2019 16:38:24

Documents mailed by a security guard acting as a whistleblower within the Department of Parliamentary Services (DPS) were intercepted and read before reaching the MP they had been sent to, the Federal Court has heard.

Key points:

  • The whistleblower contacted an MP with allegations against DPS staff, but it was intercepted, the court heard
  • The man was sanctioned and his bid to defend himself in court has been rejected
  • But the judge criticised whistleblower laws as “impenetrable”

But the whistleblower’s attempts to reverse sanctions imposed on him following his attempted disclosure were rejected by the judge based on the timeframe by which he lodged them and the fact he could not establish that he had a case.

But in his judgment, Justice John Griffiths slammed Australia’s whistleblower laws as “technical, obtuse and intractable”.

The court heard that after learning his mail to the MP had been intercepted, the whistleblower — a security guard — sought an injunction in the Federal Court to prevent sanctions against him.

He said he had made a public interest disclosure in mailing 80 pages of documents to the unnamed MP.

He failed in his bid because the court found his actions were not protected under public interest disclosure laws.

Whistleblower caught out by timeframe technicality

According to the court judgment, the documents mailed by the security guard in October last year contained a range of allegations against high-ranking staff at the Department of Parliamentary Services, including its handling of investigations and review processes.

He told the court there were also allegations relating to answers given in Senate estimates proceedings about a security incident.

He also alleged a senior DPS officer had sought to cover up and avoid formal processes over a threat of physical violence made by a supervisor against a subordinate.

He alleged multiple breaches of the parliamentary services code of conduct “including deception by providing and attempting to provide false, misleading and deliberately incomplete evidence to Senate estimates hearings and answers to questions on notice”.

Before going to the MP, he lodged an internal disclosure with the department in June 2018, abiding by whistleblower laws that require public servants to raise their concerns internally at the outset.

Whistleblower laws also require an internal investigation following a disclosure from a whistleblower be completed within 90 days.

And while the guard did wait 90 days before posting the documents to the MP on October 9, in what he intended to be an external disclosure, the department did not begin its investigation until October 11.

Under the laws the 90 day clock only began on that date, and it was subsequently extended twice.

It was also revealed in court that some additional information was included in the second disclosure, further derailing the whistleblower’s case.

In the wake of his disclosure, the officer was suspended from duty and was found to have breached the parliamentary services code of conduct.

Whistleblower laws ‘impenetrable’

The court heard the guard’s case alleged the envelope’s interception, his suspension, and the investigation had been a reprisal for his disclosure, and in breach of whistleblower laws.

He sought court intervention to set aside a number of findings and decisions, and applied for an injunction to freeze any action until a full case could be heard.

He also wanted an apology and compensation.

In court, DPS staff defended the interception, saying the envelope had already been opened — it was not known by whom — and they were not aware of its contents as a public interest disclosure when its contents were inspected.

In its judgment, the Federal Court refused the whistleblower’s injunction, as it found his mailing of material to the parliamentarian was not protected by whistleblower laws.

Justice Griffiths said the timeframe and the fact that additional information had been added to the mailed disclosure disqualified it from being legitimate.

However, Justice Griffiths criticised the whistleblower legislation, describing it as “technical, obtuse and intractable”.

He observed that the whistleblower’s attempt was hampered primarily by the timeframe requirements and the fact the second, external disclosure contained some new information.

“This may reflect the multiple compromises which have been struck in weighing the competing public and private interests,” he wrote in the judgment.

“It is acknowledged that reconciling these competing objects is not an easy exercise and is one for the Parliament.

“But the outcome is a statute which is largely impenetrable, not only for a lawyer, but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy.”

The full case has since been withdrawn.

Topics:

information-and-communication,

public-sector,

government-and-politics,

canberra-2600,

act,

australia

First posted

June 12, 2019 12:57:11



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1 Comment on "Australia’s whistleblower laws are ‘impenetrable’, Federal Court judge says"

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