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Speech to Whistleblowers Australia Conference

Transcript
Christine Milne 24 Nov 2012

 

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The Greens' political philosophy is about empowering people to take a stand to do what is right and make a positive and lasting contribution to society. This is exactly what whistleblowers do, and the Greens unequivocally support their protection under law.

The Greens want a comprehensive whistleblower scheme that gives confidence to those who are considering disclosing maladministration and corruption that they will be legally protected if they do come forward.

We want a whistleblower scheme that assures people that they will not be the focus of investigation, but rather their allegations will be. The Greens believe a scheme that encourages a culture of proactive disclosure, which (much like Freedom of Information law) cannot be guaranteed by legislation alone but entrenched by the leadership and support of senior staff.

I support the protection and empowering of whistleblowers not only on principles of public policy, but also through my own personal experience of assisting whistleblowers and seeing what benefits they have brought and will continue to bring to our society.

Talk about Alwyn Johnson

  • His actions saved 700 jobs and prevented the bank from collapsing into disaster as the SA and Victoria's state banks had just done.
  • Tasmania could never have sold the bank in 1998 for a $134 million profit if he had not made his public interest disclosure.
  • His circumstances encouraged the Liberals (in opposition) to establish the Senate Inquiry that first recommended comprehensive whistleblowing laws in 1994.

Why Whistleblowing and Integrity Bodies are both essential

 

Of all the integrity measures available in a democracy, no two methods are better at shining a light in the darkest of places than the whistleblower combined with an independent commission to investigate and reveal corruption.

One often follows the other. Turn your mind back to Col Dillon who caused the Fitzgerald Commission, or Deborah Locke and the Wood Commission (into NSW Police); and we just witnessed another example ten days ago when Detective Chief Inspector Peter Fox broke traditional investigative protocol and went public on the information he had collected on sex-abuse in the Catholic Church, just up the Pacific Highway in Maitland.

While his circumstances were different to the usual whistleblower's situation because the public was willing and ready to move quickly on the issue, make no mistake, Mr Fox was the catalyst that finally generated the public momentum for a national Royal Commission that MPs could no longer ignore.

While Royal Commissions are purpose built to meet certain objectives, what the federal government needs is a permanent, standing commission to investigate corruption on an ongoing basis. With SA and Victoria in the final throes of establishing their commissions, the Commonwealth will soon be the only jurisdiction without such a body and the jurisdiction with the weakest whistleblower protection.

That is why we again reiterate the need for the Parliament to immediately enact a comprehensive whistleblower scheme and complement it by supporting the Greens bill, currently before both Houses of Parliament that will establish a National Integrity Commission.

The Greens want an anti-corruption body to oversee both public officials and Commonwealth agencies. A Commission which will be an independent statutory agency to investigate and prevent misconduct and corruption in all Commonwealth agencies, and among federal parliamentarians and their staff. It would also cover investigating and preventing corruption in the Australian Federal Police and the Australian Crime Commission.  

Our National Integrity Commission bill would also establish an independent parliamentary adviser to provide written advice to MPs on standards, codes of conduct, entitlements, potential conflicts of interests and ethical issues. The Integrity Commissioner would have extensive investigative and coercive powers for hearings and witness.

Our integrity commissioner and comprehensive whistleblower protection work hand-in-hand because the whistleblower's revelations need an independent forum to delve into the details and publicise the results.

The Current Politics

It is also worthwhile briefly explaining the politics currently surrounding whistleblower protection. A general rule is that when there is bi-partisan agreement between the two major parties on the status-quo, then nothing will ever be done about it.

Established interests, be they the ALP, the Coalition and those who stand to benefit from the current order of things do not like comprehensive whistleblower protection laws because they are the ones most likely to be tarnished from public interest disclosures.

 

It follows that both the federal government and the opposition are scared of a truly comprehensive regime to protect whistleblowers. Their platitudes say one thing and their actions another.

The government has pushed this off for so long that we have decided to start applying pressure on them.

On Thursday I moved a motion in the Senate that called on the Government to fulfil its 2007 election commitment to the Australian people by introducing a public interest disclosure bill in the first sitting week of 2013 to comprehensively protect whistleblowers. The motion passed on the voices and we look forward to the Government complying with this resolution of the Senate.

Furthermore, last month in the Senate I moved a motion to force the government to produce their legislation as well as all the feedback they have received on the draft bill from government agencies. This would expose those agencies that loathe the proposal and have stalled it. Both the government and the opposition voted against the motion, so we will never know what the public service thinks about it, and how much they succeeded in watering it down.

One thing we can be sure of is that when the government's bill finally arrives, it will not be Australia's best practice legislation and will fall far short of the ACT's legislation which was introduced because of the Greens. The ACT Greens also successfully amended it before its passage to improve its functionality.

Based on the government's response to the 2009 Dreyfus Committee report, they do not want it to cover MP's staff, or for disclosures to be protected as a workplace right; they also do not want disclosures to third parties, such as journalists, unions or professional associations such as Whistleblowers Australia. This will have the practical effect of gagging a whistleblower who has gotten no results through their internal agency review and it will also provide an incentive for an Agency to do nothing about a complaint.

Neither party has declared their support for the Greens bill to establish a National Integrity Commission, but neither party has declared their opposition to it either - so expressing your support for our bill to your local MP might assist it passage.

Our proposed amendments in light of Government inaction

Public Sector

I would like to announce here that the Greens have amendments ready to fix the inadequate provisions in the Public Service Act when the bill comes before the Senate. We would prefer the government overhaul these provisions with blanket legislation, but the indications are that they intend to keep them. Those employed under the Public Service Act 1999 can only report breaches of the Code of Conduct, and even if they do, there is no legal immunity. They can be pursued in a criminal or civil court for their disclosures and those who no longer work in the APS cannot make disclosures. The Greens intend to remedy all of these flaws.

Private sector

We also know that neither of the major parties (or Andrew Wilkie for that matter) are willing to talk about improving private sector protections, but the Greens are. We have amendments ready to move next week to the Fair Work Act which covers 80% of public and private sector employees in Australia. The amendments will protect those who make a public interest disclosure from an adverse action taken against them by their employer, fellow employees or contractors. We intend to make whistleblowing a workplace right under our industrial relations legislation.

The Greens are also committed to improving the inadequate single clause in the Corporations Act so that employees, agents and contractors with the private sector will to be able to make protected disclosures. Following the collapse of Enron in the US, their Congress enacted the Sarbanes-Oxley Act to protect whistleblowers in the private sector. Due to the depth and breadth of the provisions, it resulted in a dramatic increase in whistleblowing activity. We should do the same here.

Example 1: It was just reported this week that Twiggy Forrest's Fortescue Metals Group commissioned archaeologist firms to inspect the cultural artefacts and connections of the Traditional Owners in the Pilbara. When Fortescue didn't like the results, they ordered sections be taken out and they withheld payment until they did. This scourge affects environmental assessments and native title applications too. One firm wrote to the WA Department after they made the requested changes, the other refused and had to forego $70,000. In the private sector, whistleblowing protections should extend to contractual rights to payment as well as subsequent adverse treatment against contractors if they make a protected disclosure.

Example 2: The HIH collapse could have been avoided if such proposals were in place. The external actuaries and auditors of HIH relied so heavily on their business that they did nothing when the HIH board refused to heed its recommendations and deferred to the board's authority in fear of upsetting the business relationship and regular work.

 

In the absence of Government action the Greens will move to ensure public and private sector employees are protected when they speak out against corruption and maladministration.

Conclusion

The Greens stand shoulder to shoulder with whistleblowers.

In this current parliament, we alone have pursued the RBA note bribing scandal that would not have happened without those three brave whistleblowers.

We alone have pursued Dave Reid's claim against ANSTO. Despite all the smearing and character attacks, he was eventually vindicated after he exposed the poor safety controls at the Lucas Heights Nuclear Reactor.

 

We alone have advocated for the civil and political rights of Julian Assange and Wikileaks.

Finally, the Greens successfully amended shield laws that cover whistleblowers and journalists to ensure it protects citizen-journalists, bloggers and independent media.

But this is not enough.

Corruption protects itself and does not need any assistance, but every month that passes without a comprehensive whistleblower law and a National Integrity Commission, the Parliament through its failure to act is actually helping to protect corruption and maladministration.

We, as a national parliament, and with your assistance must implement both these changes early next year.

Thank you.

 

 

 

 

Please also see the Greens amendment to the Fair Work Act to include the protection of whistleblowers 

http://greensmps.org.au/content/motions/protection-whistleblowers 

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