The Australian media industry is united in its opposition to some key provisions of the federal government’s new whistleblower legislation - now before parliament - and is pushing for some significant changes.
In a submission on the Public Interest Disclosure Bill (2013) to the House of Representatives Standing Committee on Social Policy and Legal Affairs and the Senate Standing Committee on Legal and Constitutional Affairs (which are reviewing the bill), major media companies - including newspaper publishers Fairfax and News Limited and free-to-air TV’s representative body, Free TV Australia - focused on five issues.
Key among these are: the scope of protected disclosures; the presumption of criminal liability against the media for using or disclosing information that identifies the whistleblower; and the exclusion of government ministers, ministerial staff, the Speaker of the House, the President of the Senate and officers of courts and tribunals from the scope of the law.
There is real substance to most of the industry’s arguments.
Broadly speaking, the bill is designed to protect whistleblowers from reprisals for making “protected disclosures”. These fall into three categories: internal disclosures (made to someone else inside the government), external disclosures (made to “anyone”, but in effect to the media), and emergency disclosures, which concern imminent threats to public health or safety.
The argument about scope centres mainly on external disclosures and to some extent on emergency disclosures.
The bill contains a convoluted assemblage of filters, conditions and caveats - nine in all - which must be satisfied if an external disclosure is to be protected. This has the look of a bureaucratic device for frustrating an outcome that the bureaucracy does not want, while giving the appearance of accomplishing it.
The nine conditions notably include this:
The disclosure is not, on balance, contrary to the public interest.
Note the double negative “not…contrary”. Why not “disclosure is in the public interest”? It is a small but telling example of a subtle tone of unease that runs through the legislation.
And the way the public interest is to be assessed - as the industry submission points out - is skewed against external disclosure. All the factors listed to be taken into account in assessing public interest indicate where disclosure would be against the public interest. The media industry’s submission rightly argues that if there is going to be a list of factors against disclosure, there needs to be a list in favour too.
The industry says that an alternative would be to scrap this list of factors altogether, but it is likely that the government will want to retain some such test.
A solution might lie in looking at this in the context of “disclosable conduct” - that is, conduct of the kind that is intended to be the subject of protected disclosure. This includes conduct that is unlawful; perverts the course of justice; corrupt; an abuse of public trust; scientific fraud; a waste of public money; a danger to people’s health or safety; damaging to the environment; an abuse of power, or involves maladministration.
These are all unambiguously matters of public interest. If the legislation proceeded on the basis that, prima facie, such conduct ought to be externally disclosed unless there was a stronger countervailing public interest against disclosure, then the balance of the law would be shifted in favour of disclosure and the factors against disclosure in any public interest test would need to withstand that challenge.
The industry’s second objection concerns the use of information that might disclose the identity of the whistleblower in the course of putting a story together or making internal editorial decisions. The industry wants an exception to be made to allow the media to use and disclose identifying information “in the course of responsible news-gathering”.
This is a big ask. What constitutes “responsible news-gathering”? Certainly there are grounds for an exception that allows a journalist to disclose to his or her editor the identity of the informant, on a strictly confidential basis, for the purpose of making a decision whether to publish. It is always necessary to assess the quality of an informant and an informant’s motive. But to extend this to the news-gathering operation generally would open the whistleblower to the risk of inadvertent or circumstantial exposure.
The industry’s third objection concerns the exclusion of ministers, ministerial staff, presiding officers of the parliament and officers of courts and tribunals from having their misconduct disclosed. As the industry says, there is no justification for excluding ministers, ministerial staffers and the presiding officers.
Courts and tribunals present a more complex picture. Some tribunals are administrative, not judicial, in nature. It is hard to see why they should be excluded when government administrators generally are not excluded. And the exclusion of court staff and officials is similarly hard to justify.
However, judicial officers represent a separate category because of a risk that judicial independence might be compromised. There is already legislation covering misbehaviour by judicial officers, and the industry submission is weak on this point, relying on a trite statement that they are human and not beyond reproach.
The final two objections - the way the bill deals with disclosures that are false and misleading; and how it deals with pseudonymous disclosures - are straightforward and cogently argued.
The industry agrees that false or misleading disclosures should not be protected, but only if they are made in the knowledge that they are false or misleading. This was the approach recommended by a parliamentary committee of inquiry in 2009. The argument is that otherwise, whistleblowers who make disclosures in good faith, believing on reasonable grounds that they are true, may be exposed to liability if they turn out to be false.
And the bill allows anonymous disclosures, so why not pseudonymous disclosures?
Overall, the government seems to be doing its best to improve what has proved to be a weak whistleblowing regime in Australia. It involves a complex array of balances, but a lot of what the industry proposes would assist the government to realise the bill’s objectives.