Whistleblowers still in the firing line from foreign influence and official secrets laws

Australia is in the middle of intense debate about new federal foreign influence and official secrets laws. This debate is happening alongside the development of new whistleblowing legislation. Unless changes are made to all these, they could be ineffectual in protecting those who may need to reveal information in the public interest.

The first stage of the government’s enhanced private sector whistleblower protection has been referred back to a parliamentary legislation committee, like the other two laws, amid similar concerns it doesn’t deliver properly on its aims.

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Whistleblowers have already been mentioned in the heated debate over the National Security (Espionage and Foreign Interference) Bill. This updates and replaces Australia’s official secrets laws, and applies to everyone - not just public officials, but journalists and private citizens as well.

The attorney-general, Christian Porter, has now confirmed a major backpedal on that law’s impact on journalists. It’s now planned that journalists could only be prosecuted for doing their job, if they willingly communicate secret information that endangers the health and safety of the public, or prejudices national security.

But the same law highlights the importance of protecting whistleblowers, directly. Under the proposed Criminal Code, anybody – publicly or privately employed – could still face up to 20 years in jail for communicating unauthorised official information, especially if deemed “inherently harmful”.

Not all of this is unreasonable. In fact, there is real value in the bill, which finally replaces our most draconian official secrets law – section 70 of the Crimes Act 1914 – as recommended for decades.

The definitions of “harmful” are wide - including any government information provided by anyone in compliance with any legal obligation, or which could arguably harm Australia’s international or internal federal relations “in any way”. As a result, the average employee who might need to expose wrongdoing is at even greater risk than journalists.

This is where whistleblower protection laws are meant to be the antidote. They ensure ordinary workers can’t be prosecuted for breaching secrecy, if revealing wrongdoing in the public interest.

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Already, many public officials get some protection under the Public Interest Disclosure Act 2013. This is slated for improvement, especially after last year’s far-reaching whistleblower protection inquiry by the Joint Parliamentary Committee on Corporations and Financial Services.

As yet, there is no full government response to that inquiry. But as a first stage of reform, the new bill introduced in December - despite many advances - also doesn’t yet hit its mark.

If a private sector employee needs to reveal government information to blow the whistle publicly on wrongdoing, they will not be protected from prosecution unless it’s an absolute “emergency”. This is defined as “imminent risk of serious harm or danger to public health or safety, or to the financial system”.

This would not protect the whistleblower who revealed foreign bribery offences by the Reserve Bank’s noteprinting company, Securency. Or, in a business context, someone like Jeff Morris who revealed misconduct among Commonwealth Bank financial planners.

Last year’s parliamentary committee already recommended that the new whistleblowing law take a different approach, and protect any public disclosure of wrongdoing if “no action” is first taken by a law enforcement agency, after a reasonable time. So, there was already a better answer on offer.

Other recommendations, like how best to ensure whistleblowers are properly compensated, are also yet to be acted on in the bill. Hence, its referral back to committee, like the others.

The third bill in the mix, to establish a Foreign Influence Transparency Scheme, tends to confirm a bigger problem.

Like the other two, it has worthy goals of integrity in Australian political and business life, and is well intentioned. Yet its degree of overreach makes one wonder if the government actually fully read the draft, before introducing it.

Prime Minister Malcolm Turnbull said it was “focused on the activities of foreign states and their agents in Australia, and not the loyalties of Australians”, requiring agents of foreign powers to register political activities intended to influence Australian decision-making. Yet, the bill captures any Australian person or group with any funding or collaboration links with any foreigner at all – not only foreign governments or their agents, but any foreign business, entity or private individual. This could also include whistleblowers in some cases.

Attempted exemptions for business, journalists and humanitarian aid groups are once again limited or vague. Large numbers of citizens, whistleblowers and civil society groups are at risk of criminal liability if they don’t officially register their activities with the government.

Also referred to the Joint Committee on Intelligence and Security, the government is also likely to have to backpedal on this bill.

Perhaps all three bills will now be fixed in the parliament, but they seem to confirm an old lesson. Laws on official information often need a wider government perspective, and to be carefully checked, if they’ve been produced solely or mainly by the affected bureaucracies themselves.

Whether this is the reason or not, future integrity and transparency reforms would clearly benefit from a different approach.

A J Brown's research teams receive funding from the Commonwealth Government's Australian Research Council and a range of Commonwealth, State and non-government integrity, regulatory and professional organisations in Australia and New Zealand. He is also a boardmember of Transparency International. Views expressed are independent professional opinions and do not represent the Commonwealth Government or the work of its whistleblowing expert advisory panel.