Are the government’s whistleblowing laws unconstitutional?

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Are the government’s whistleblowing laws unconstitutional?

Jonathan Crowe and Danielle Ireland-Piper

Recent debates over the treatment of asylum seekers on Manus Island and Nauru have drawn attention to the difficulty of gaining accurate information about conditions in offshore detention centres. This is partly due to legal restrictions on government employees or contractors sharing or reporting such information.

A whistleblower is someone (typically an insider) who brings attention to wrongdoing in a public organisation. Whistleblowers play an important role in ensuring accountability of public bodies. They can act as a safeguard against the tendency of powerful organisations to close ranks against outsiders.

We argue in a recent article that the Australian Constitution requires a minimum level of protection for whistleblowers. Current legal restrictions on whistleblowing contravene the constitutional freedom of political communication by unreasonably limiting discussions of government policy and performance.  

The current legislation

The legal position of whistleblowers depends on several pieces of legislation. The Crimes Act makes it a serious offence for a Commonwealth officer to disclose information obtained in an official capacity. The main exception is found in the Public Interest Disclosure Act (PIDA), which protects ‘public interest disclosures’

A disclosure is deemed to be in the public interest if, among other things, it reveals conduct that is illegal or unreasonably endangers health and safety. Importantly, however, the PIDA does not protect disclosures pertaining to intelligence operations or that are deemed ‘on balance, contrary to the public interest’.

The protections of the PIDA are further restricted by other legislation. The ASIO Act prohibits disclosures relating to ‘special intelligence operations’. This term is defined extremely broadly to include, among other things, anything done ‘for a purpose relevant’ to ‘purposes relevant to security’.

The Border Force Act similarly makes it an offence to disclose ‘Immigration and Border Protection information’. This term is also defined extremely broadly. It includes, among other things, any information that could reasonably be expected to prejudice Australia’s security, defence or international relations.

The prohibition in the Border Force Act, unlike that in the ASIO Act, is potentially subject to the public interest exception in the PIDA. However, as mentioned above, the PIDA doesn’t protect intelligence operations and its overall scope remains limited. At the least, the legislation can be expected to have a significant chilling effect on information relating to border control and asylum seekers.

Is it constitutional?

The implied freedom of political communication was established by the High Court in two 1992 cases: Nationwide News v Wills and Australian Capital Television v Commonwealth. The freedom is derived from the constitutional requirement that members of parliament must be ‘directly chosen’ by the people.

The High Court reasoned that these provisions were intended to create a system of representative government. This system, in turn, requires freedom to discuss government policy and performance. However, this freedom is not absolute. It is subject to proportionate restrictions.

The government has consistently argued that whistleblowing restrictions are necessary to promote law enforcement, intelligence gathering and national security. However, the blanket exclusion of intelligence operations from the PIDA, along with the lack of a clear public interest exception in the ASIO Act and the Border Force Act, arguably exceeds what is necessary to promote these objectives. 

An obvious alternative would be to make both statutes subject to the whistleblowing protection in the PIDA and remove the blanket exclusion of intelligence operations from this provision. Even this, however, may not strike the constitutionally required balance with freedom of speech, unless the exception is broadened to cover legitimate discussion of government policy or performance.

Where to from here?

The courts should read down the laws mentioned above to protect disclosures that hold significant public interest for discussion and debate over government policy or performance, where disclosing this information does not impede a compelling security interest or compromise human life or safety. This would be consistent with the High Court’s decisions on freedom of political communication. 

A better outcome, however, would be for parliament to amend the legislation to protect whistleblowers in the above circumstances without exceptions relating to intelligence and national security operations. An amendment of this kind would remove the need for the issue to be resolved through the courts. 

It would also be consistent with Australia’s system of representative and responsible government, which depends on the free flow of information between the executive, the legislature and the people. Current whistleblowing laws place political expediency above this important constitutional value. 

Jonathan Crowe is Professor of Law at Bond University and a member of the Advisory Board of the Ngara Institute. Danielle Ireland-Piper is an Associate Professor in the Faculty of Law at Bond University. This article draws on Danielle Ireland-Piper and Jonathan Crowe, ‘Whistleblowing, National Security and the Constitutional Freedom of Political Communication’ (2018) 46 Federal Law Review 341.