The federal government will consider whether whistleblowers should be protected for gathering evidence before disclosing possible wrongdoing, amid criticisms existing laws are not doing enough.
The need for a standalone whistleblower protection authority, and a financial reward system for those coming forward, are also issues up for consideration shortly before Christmas.
The attorney general, Mark Dreyfus, released a promised consultation paper on the issue on Thursday as the government moves towards releasing a second stage of reforms to improve public sector whistleblowing protections.
The consultation paper said whistleblowers shouldn’t conduct their own investigations in preparing to make wrongdoing disclosures but added safeguards could be considered for certain cases.
“It is therefore important to consider to what extent, if at all, preparatory acts should be covered by immunities, any risks associated with potential PID protections for preparatory acts, and what safeguards may be appropriate in relation to preparatory conduct to address those risks,” the consultation paper said.
“Possible safeguards could also extend to limiting preparatory actions to those that involve information to which a public official has lawful access, or where the dealing is no greater than necessary to make a disclosure.”
Earlier this year, the South Australian district court rejected tax office whistleblower Richard Boyle’s attempt to use the Public Interest Disclosure Act to protect himself from prosecution for his alleged actions in the lead-up to blowing the whistle.
“The PID Act does not expressly prohibit or endorse the recording of information by a public official to help formulate a public interest disclosure,” the court found. “The PID Act is silent on this aspect.”
At the time, Boyle’s lawyers argued that if whistleblowers were not protected while collecting evidence and investigating potential wrongdoing, it would both discourage them from speaking out and compromise the ability of authorities to properly investigate their disclosures.
The senior lawyer for the Human Rights Law Centre Kieran Pender said the protections are “broken”, adding “whistleblowers are being punished and prosecuted rather than protected”.
The paper also canvasses the suggestion of an independent whistleblower protection commission – which crossbenchers have been urging for since before the National Anti-Corruption Commission’s establishment.
The Greens senator David Shoebridge said there needed to be “a clear statement” providing such an authority with the necessary resources and scale.
“Whistleblowers desperately need a well-resourced and independent agency in their corner to speak truth to power, and a standalone commissioner without those resources is a recipe for failure,” he said.
Indi MP Helen Haines, who has also discussed the need for a protection authority with Dreyfus, said the need for one was long overdue.
“A robust whistleblower protection commission that provides practical support to whistleblowers and offers them protection and empowerment is an essential component of our federal integrity landscape,” Haines said.
New polling released on Thursday shows considerable levels of public support for greater intervention by the government to protect whistleblowers.
The polling, conducted by RedBridge Group using a sample of 1,205 Australians, shows 74% of voters supported the government intervening to protect whistleblowers who are facing prosecution.
About three-quarters of voters also supported stronger whistleblower protections and 62% disagreed with the prosecution of whistleblowers.
The founder of Whistleblower Justice Fund and former independent senator, Rex Patrick, said Australians would have little to no trust in institutions without the work of whistleblowers.
“It is clear that the majority of people expect the federal Labor government to step up, stop ongoing prosecution of whistleblowers, and fix the law so whistleblowers are protected,” he said.
