Kicking at the cornerstone of democracy The State of Press Freedom in Australia 2012
WHISTLEBLOWER PROTECTION “The message [Toni Hoffman] constantly gets is ‘we do not want you in our organisation’. They have treated her abysmally even though she… saved lives.” Peter Koutsoukis, solicitor, Maurice Blackburn, quoted in The Australian, December 16, 2011.34 When she blew the whistle about her concerns over rogue surgeon Jayant Patel in 2005, nurse Toni Hoffman was hailed as a heroine – a poster girl for public interest disclosures. Facing the opposition of management after her repeated attempts to stop the man they called “Doctor Death” from operating, she took her concerns to award-winning reporter Hedley Thomas. Only after Thomas aired Hoffman’s concerns in The Australian did Patel’s record come to light and an investigation launched. He was subsequently convicted of three counts of manslaughter and sentenced to seven years in prison. Seven years on, Hoffman is again a poster girl, this time for the downside of whistleblowing. She has complained of workplace discrimination, “performance management” and says that letters to the then premier of Queensland and the then Queensland Health director-general, Mick Reid, went unanswered.35 She was even refused a request to take paid leave during Patel’s trial and was forced to use her annual leave on days where she was not giving evidence. Hoffman’s plight highlights the continuing need for adequate laws to protect public interest disclosures – such as hers – and provide compensation for those who risk their careers and health to bring serious misconduct and other matters of public interest to light. Despite promises made by the federal Labor government from their days in opposition, from their election to power in 2007 and repeatedly since (most recently in November 2011), the promised reform has stalled and most observers now believe the current administration has not got the political will to bring effective whistleblower protection to the statute books.
Background In October 2007, flanked by Joe Ludwig – his shadow attorney-general, then Labor leader Kevin Rudd promised that a Labor victory in the forthcoming election would usher in a new era of openness and accountability in Australia.36 Among other election pledges, Rudd promised to provide “best-practice legislation and expansion of protection for public interest disclosure whistleblowers, protecting them from retribution”. The move was largely prompted by the experience of former Customs officer Allan Kessing, who had been identified as the source of a leak about lax security in Australia’s airports and was convicted of breaching section 70 of the Commonwealth Crimes Act (which the Alliance has repeatedly said should be repealed).
The Dreyfus report Following the release of the draft report of the “Whistle while they work” project led by Professor A.J. Brown in 2008, the then Cabinet secretary, Senator John Faulkner, announced that the federal government had asked the House of Representatives Standing Committee on Legal and Constitutional Affairs, led by Mark Dreyfus QC, to consider and report by February 28, 2009, on a preferred model for legislation to protect public interest disclosures within the Australian government public sector. The Dreyfus report, Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector, recommended that the federal government introduce legislation to enable public interest disclosures and strengthen whistleblower protection within the Commonwealth public sector. “The Commonwealth is the only Australian jurisdiction that does not have legislation to encourage public interest disclosures,” Dreyfus said in a statement. “While some limited protections are available to whistleblowers employed by Australian Public Service (APS) agencies, evidence to the inquiry indicates that those protections are grossly inadequate. “The current legal framework and organisational culture discourages public servants from speaking out against what they consider to be illegal or improper conduct in the workplace. People who raise allegations of misconduct could be exposed to serious criminal or civil liability.” 37 However the Dreyfus report stopped short of recommending protection for whistleblowers who took their complaints to the media, except in cases of an immediate threat to public health or safety. Dreyfus’s recommendations came in for a good deal of criticism. Laurie Oakes, whose Gold Walkley Award in 2011 was earned with his handling of leaks of sensitive political material,