RECENT POHOT - IMG_6847BY DANIELLE IRELAND-PIPER

Albert Einstein is reported to have observed that ‘the world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.’ Einstein reminds us of the importance and courage of those who are roused to action. Within organisations, those who speak and act out against inappropriate or unlawful behaviour are known as ‘whistleblowers’, or more recently, persons making ‘public interest disclosures’. In any organisation, it is the employees and other people ‘on the ground’ who will often be the first to become aware of unlawful, inappropriate or unsafe conduct. If encouraged, and offered legal protection, in disclosing legitimate concerns about such conduct whistleblowers are an important tool in fighting corruption and maintaining good governance. Their role is thus fundamental to the accountable operation of governments and other organisations.

In this way, then, there is a relationship between whistleblowing, political speech and representative accountability. Government, on the one hand, is the ultimate power in its environment, but on the other, is beholden to the democratic will of the electorate. A public-sector whistleblower can serve as a conduit between government and those whom it is intended to represent. In a modern liberal democratic state, the role of the whistleblower is one that ought to be afforded protection. As observed by three Ombudspersons – John McMillan, Bruce Barbour, and David Bevan – in a 2006 report:

Whistleblowing, or the preparedness of officials and employees to make public interest disclosures about wrongdoing within their organisations, is vitally important to ensuring integrity and accountability in the public sector. It will not happen unless there is a sound legislative structure to facilitate and protect public interest disclosures.

In that context, this post develops an argument that the implied freedom of political communication accommodates a minimum implied constitutional protection for public-sector whistleblowers, or, alternatively, that such a minimum protection is a separate implication in its own right. In either case, this post suggests that the current Commonwealth regime of public interest disclosure protection impermissibly erodes this protection.

An overview of the Commonwealth regime of public interest disclosure

Section 70 of the Crimes Act 1914 (Cth) currently criminalises the disclosure of information by those working for the Commonwealth government:

Disclosure of information by Commonwealth officers

(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

The effect of the Crimes Act on public interest disclosures has been ameliorated by the Public Interest Disclosure Act 2013 (Cth) (the PIDA). The PIDA was described by the then Attorney-General Mark Dreyfus QC as establishing ‘a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and those who report it’. Section 10 of the PIDA provides that if an individual makes a ‘public interest disclosure’, then he or she is ‘not subject to any civil, criminal or administrative liability (including disciplinary action) for making’, that disclosure, and nor may any ‘contractual or other remedy … be enforced, and no contractual or other right may be exercised, against the individual’ on that basis. Further, the individual will also have ‘absolute privilege in proceedings for defamation in respect of the public interest disclosure’. Prima facie, this establishes a legal framework offering protections to whistleblowers. By way of background, disclosures considered under the PIDA to be in the ‘public interest’ may relate to, for example, ‘suspected or probably illegal conduct or other wrongdoing’ or a ‘substantial and imminent danger to health or safety’.

There are, however, significant gaps in the protections afforded to Commonwealth whistleblowers such as to call into question the genuine nature of whistleblower protections in the public sector. The ‘public interest’ protections afforded to whistleblowers under the PIDA for these types of disclosures, however, are expressed not to apply to intelligence operations. The wider legislative context makes plain the further gaps in the protective framework. For example, section 35P of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) makes it an offence to disclose information that relates to a special intelligence operation. By way of further example, Part 6 of the Australian Border Force Act 2015 (Cth) (the Border Force Act), entitled ‘Secrecy and Disclosure Provisions’, provides that an ‘entrusted person’ must not make a record of or disclose protected information unless certain circumstances exist. In effect, under sections 7 and 42 of the Border Force Act, doctors and social workers seeking to report concerns about the welfare of asylum seekers in offshore detention centres may be subject to criminal penalties. While it is possible that the government would not seek prosecution of such persons, the laws still serve as a deterrent to a free and open debate about controversial aspects of Australian policy and as a disincentive for whistleblowers to act. For this reason, such legislation, and the blanket exclusion of intelligence operations under the PIDA, gives cause to consider the relationship between whistleblowing and the implied freedom of political communication.

The implied freedom of political communication

Whistleblowing in the public sector is inherently political and relates to issues such as suitability of office and the manner in which public funds are expended. For this reason, there is a relationship between whistleblowing, representative government and the implied freedom of political communication. The implied freedom drawn from ss 7 and 24 of the Constitution was described in Nationwide News Pty Ltd v Wills by Deane and Toohey JJ as follows:

Inherent in the Constitution’s doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate information, opinions and ideas about all aspects of the government of the Commonwealth, including the qualifications, conduct and performance of those entrusted … with the exercise of any part of legislative, executive or judicial powers of government which are ultimately derived from the people themselves.

The method subsequently employed by courts to determine whether the implied freedom has been breached is commonly referred to as the ‘Lange’ test. More recently, the High Court in McCloy v New South Wales, explained that three questions are to be asked in order to determine whether an impugned law breaches the implied freedom of political communication under the Lange test. These questions can be summarised as follows:

  1. Does the law effectively burden the freedom in its terms, operation or effect?

  2. Are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? As French CJ, Kiefel, Bell and Keane JJ have held, ‘the answer to that question will be in the affirmative if the purpose of the law and the means adopted … do not adversely impinge upon the functioning of the system of representative government’.

  3. Is the law reasonably appropriate and adapted to advance that legitimate object?

How, then, does the current public interest disclosure regime in Australia measure against these three limbs?

Burden on communication that is political

In essence, the first limb of the test is concerned with whether communication that is ‘political’ in nature is burdened. Whistleblowing by federal public servants about government conduct is inherently political. This can be seen in the definition of public interest disclosures in the PIDA, which are concerned purely with the conduct of government agencies, public officials and contractors delivering on Commonwealth contracts. It goes directly to questions of fitness for public office and the means by which public funds are spent and administered. Given principles of ministerial responsibility, the conduct of public officials and agencies then becomes a question directly relating to representative democracy. Support for such a proposition can be found in a number of High Court authorities, including Coleman v Power, where McHugh J contemplated the role of ‘public evaluation of the performance of Federal Ministers’ as being part of political communication, and Gummow and Hayne JJ noted, although declining to find on the matter at the time, that there is ‘evident strength in the proposition that an allegation that a … [public officer] is corrupt might concern a government or political matter that affects the people of Australia’. This is significant because, as the High Court held in Wotton v Queensland, there is a distinction between laws that incidentally restrict political communication, and those that prohibit communications that are inherently political or are a ‘necessary ingredient of political communication’.

For a purpose compatible with representative government

The subsequent limbs of the test, however, will nonetheless permit of such a burden if it is for a purpose compatible with representative government, and if the legislation in question is reasonably appropriate and adapted to that purpose. In this scenario, the Commonwealth would likely argue that the relevant purpose behind the exclusion of intelligence operations from the whistleblowing protections provided by the PIDA, and the purposes behind the enactment of s 42 of the Border Force Act and s 35P of the ASIO Act, relate to national security and the efficacy of law enforcement. For example, the explanation given for the secrecy provisions in the Border Force Act was that its purpose was to avoid, ‘disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence, security intelligence or the integrity of law enforcement agencies’. National security and efficacy of law enforcement are undoubtedly legitimate government objectives, and areas in which federal courts have previously shown a deal of judicial deference to policy determinations and priorities of the government and legislature. The crux of the constitutional analysis, however, lies in whether the means used to achieve such purposes are reasonably appropriate and adapted. Put another way: are the limitations on the Commonwealth whistleblowing regime proportional?

Proportionality

To answer this third question, French CJ, Kiefel, Bell and Keane JJ explained in McCloy that a structured proportionality test ought to be adopted using the following steps:

suitable – as having a rational connection to the purpose of the provision;

necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If it is accepted that federal public-sector whistleblowers, or public interest disclosures, might be protected under ss 7 and 24 of the Constitution, any attempt to establish a limited framework for public-sector whistleblowing would have to pass this proportionality test and be ‘suitable’, ‘necessary’, and ‘balanced’. In this case, the pivotal issue is one of necessity. In 2014, although the Parliamentary Joint Committee on Intelligence and Security accepted ‘the necessity of offences for unauthorised handling and communication of information held by intelligence agencies’, the Committee did express concern that disclosure offence provisions, ‘could have unintended consequences relating to the legitimate disclosure of information’. Taken in that context, the impediment for legitimate whistleblowers is that in not legislating for a public interest exception to such secrecy provisions as in the ASIO Act and the Border Force Act, and in excluding intelligence operations from the protection of the PIDA, the Commonwealth may have exceeded what is necessary for national security and efficacy of law enforcement.

In the specific context of s 35P of the ASIO Act, for example, the intelligence operation need not be compromised or even likely to be compromised by a disclosure for an offence to occur. Instead, the disclosure must simply ‘relate to’ a special intelligence operation and no exception exists for disclosures in the public interest. While it might be argued that the existence of prosecutorial discretion, for example, provides the necessary balance, the exercise of prosecutorial discretion is not the same as independent judicial scrutiny that a disclosure is in the public interest.

Neither the ASIO Act nor the Border Force Act provides an exception for the protection for public interest disclosures, and therefore neither is likely to be ‘adequate in its balance’. It could certainly be argued that s 35P of the ASIO Act and the Border Force Act could have been enacted by way of ‘less drastic’ means and that the ‘obvious and compelling alternative’ is to include protections for disclosures that are in the public interest. This is a ‘reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom’, a dimension identified by a majority of the Court in McCloy.

The question of the legislation being adequate in its balance requires, as conceded by the High Court, something of a ‘value judgement’. As noted earlier, however, legislation that directly burdens political communication is more likely to be unconstitutional than legislation that indirectly does so. In that context, the fundamental nature of representative government in the Australian Constitution requires a degree of legislative restraint, as can be seen, for example, in the decisions in Roach v Electoral Commissioner and in Rowe v Electoral Commissioner. In the case of public-sector whistleblowing protections, the importance of accountability in government requires that any value judgement favour the centrality of representative government and require at least a minimum protection for disclosures in the public interest. Therefore, it would appear that because public sector whistleblowing is inherently political, a disproportionate burden on such communications, or the outright exclusion of whistleblowing on intelligence operations, is a breach of the Commonwealth’s obligation to protect whistleblowers making public interest disclosures.

A separate constitutional implication?

I have argued, then, that the implied freedom of political communication includes a minimum protection of public-sector whistleblowers. There is an alternative argument, however, that such an implication exists in its own right. If the latter is true, and such an implication exists, it derives from the principles of representative democracy inherent in ss 7 and 24 of the Australian Constitution. The High Court in Australian Capital Television Pty Limited v Commonwealth affirmed representative parliamentary democracy as being a fundamental part of the Constitution. For example, Mason CJ confirmed that the Constitution provides for representative government, and therefore, ‘the sovereign power which resides in the people is exercised on their behalf by their representatives’. Consequently, in the exercise of that power, such representatives ‘are accountable to the people for what they do’ and ‘must explain and account for their decisions and actions in government’. Public-sector whistleblowing can be seen as fundamental to such accountability and in ensuring elected representatives are accountable for their actions.

On the matter of constitutional implications, it was also held in Australian Capital Television Pty Limited v Commonwealth that where ‘a freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system’. The Court in McGinty v Western Australia cast doubt on the proposition that constitutional implications could be drawn generally from the principles of representative government and instead favoured a restricted approach whereby implications are to be drawn from text and structure only.

Even constrained by such a narrow approach, however, a constitutional protection of public-sector whistleblowing might still be drawn. Public-sector whistleblowing serves to directly facilitate the constitutionally mandated ‘choice’ in ss 7 and 24 of the Constitution by allowing accountability and scrutiny of the conduct of elected representatives. Whistleblowing by federal public servants about government conduct is inherently political. Whistleblowing that discloses conduct of government agencies, public officials and government contractors goes directly to questions of fitness for public office and the means by which public funds are spent and administered. Given principles of ministerial responsibility, the conduct of public officials and agencies then becomes a question directly relating to representative democracy.

Once it is accepted that some constitutional protection for public-sector whistleblowing is essential for the proper functioning of representative government prescribed in ss 7 and 24, it may also follow that it is beyond the competence of the Commonwealth to legislate in a way that would impermissibly burden public-sector whistleblowers. Any federal legislative regime that purports to erode whistleblower protections in a way that is not reasonably appropriate and adapted may be potentially unconstitutional. This may raise constitutional questions about provisions that criminalise public-sector whistleblowing activity without appropriate defences. In this way, a constitutional protection would operate in a similar way to the constitutional protection afforded to communication about government and political figures. In the cases culminating in Lange v Australian Broadcasting Corporation, the Court has held that such communication may not be impermissibly burdened by either the common law or statutory defamation regimes.

The Commonwealth may legislate to create a regime for the protection of whistleblowing, as it has done in the PIDA, and it may even ‘interfere’ with some whistleblowing protections in the interests of national security, as an end ‘consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’. In so doing, however, it must maintain a regime that is appropriate and adapted to that end.

Conclusions

I have argued in this post that the implied freedom of political communication accommodates a minimum protection for public interest disclosures. Alternatively, it is also possible that a minimum constitutionally derived protection for public-sector whistleblowers exists by way of a more direct implication – related – but independent – of the implied freedom. The formulation – and more recent reformulation – of the Lange test makes it clear that the implied freedom is generally conceived as creating a limitation on legislative power. That is, the implied freedom is often understood as a ‘shield’ against government interference rather than as a ‘sword’ wielded to enforce a personal right. Nonetheless, implicit in the implied freedom of political communication, or even as an implication in its own right, is a minimum constitutional protection of whistleblowers in the public service. In this way, a negative right gives rise to a positive duty on the Commonwealth not to derogate from such a protection

My analysis of the current level of protections provided by the PIDA and the further derogation of protections for public-sector whistleblowers by s 35P of the Crimes Act and Part 6 of the Border Force Act reveal serious concerns that the Commonwealth has breached either of these constitutional protections, and at the very least, points to a legislative ‘blindspot’.

Danielle Ireland-Piper is an Associate Professor at Bond University.

Suggested citation: Danielle Ireland-Piper, ‘Public-Sector Whistleblowing and the Implied Freedom of Political Communication’ on AUSPUBLAW (13 April 2016) <https://auspublaw.org/2016/04/public-sector-whistleblowing/>