With the release of its new annual report, Australia’s Ombudsman continues to be among the world’s most transparent whistleblower offices. Still, certain gaps reveal room for improvement, particularly with regard to information on the outcome of retaliation cases.
Formally known as the Commonwealth Ombudsman, the office says it received 685 reports from employees and citizens during the year ending June 30, according to its report released last month. Of these, 257 were considered as whistleblower reports under Australia’s Public Interest Disclosure Act.
Passed in 2013, the law covers violations by public officials and seeks to protect officials who report misconduct from retaliation. It also intends to ensure all reports are properly investigated and followed up. Unlike most such laws around the world, Australia’s law does not apply to private companies and their employees.
The 257 whistleblower reports include 739 allegations. Similar to previous years, most of the reports deal with law violations, maladministration, health and safety risks, and official misconduct. Only 6 percent of the reports were about corruption, though this jumped from 2 percent in 2020-21, the Ombudsman’s report said.
After the Ombudsman referred the reports to other public authorities, 176 investigations were completed during the year. Of these, 39 reports were substantiated and 130 investigations resulted in recommendations. The most common responses were monitoring compliance systems, reviewing recruitment procedures, training staff and contractors, and referring cases for further investigation.
Three cases were referred to the police because there were reasonable grounds a crime was committed, according to the Ombudsman’s report. No details of these cases were provided.
Like the previous year, the Department of Defence received the most reports (98) and conducted the most investigations (56). Most reports dealt with law violations, maladministration and official misconduct. Only one report was about corruption and three were about wasting public funds.
Public authorities declined to investigate 339 reports – including 230 allegations in one report – for a range of reasons, including that they were being investigated under a different law, and witnesses did not assist in investigations.
In one positive finding, the Ombudsman found 81 percent of the reports came from current or former public officials. This suggests a high level of awareness among public employees.
Information Lacking on Retaliation Protection
On the downside, the Ombudsman’s report includes scant information about protecting public employees and other witnesses from retaliation. The very low rate of retaliation claims that have been substantiated also is noteworthy.
Various public agencies in Australia received 148 retaliation complaints in the five years spanning 2017-18 to 2021-22. Only six of these – 4 percent – were substantiated. During the past year, none of the 52 complaints were upheld. The most common types of complaints were bullying, harassment, “disadvantage to employment” and “unreasonable management action.”
The Ombudsman provided no information on the outcome of the six substantiated claims – for example, whether employees were successfully protected from retaliation, or whether dismissed employees were reinstated and compensated for damages. Under the whistleblower law, retaliation victims seeking reinstatement or compensation must file a lawsuit in federal court. No information on any such cases was included in the report.
In 2017-18, three of the 16 retaliation complaints were substantiated and referred to the police or a “Code of Conduct investigation.” In Australia, whistleblower retaliation or threatened retaliation is a crime punishable by up to two years in prison. Disclosing the identity of a whistleblower is punishable by up to six months in prison. No information on any police follow-up was included in the report.
While the Ombudsman’s office “has a key role in overseeing” Australia’s whistleblower system, “we cannot investigate the reprisal allegations themselves” and “cannot investigate employment matters,” an agency spokesperson explained in an e-mail to WNN. Further, the agency does not receive details of retaliation investigations, nor does it know the outcomes of cases that victimized whistleblowers have brought before courts and government commissions, the spokesperson said.
The Ombudsman limits itself to general issues such as whether an employer “took reasonable steps” and has “a plan in place to manage the risk of reprisal.” The spokesperson would communicate with WNN only via e-mail: “The Office is not inclined to participate in an interview at this time.”
Theo Nyreröd, an anti-corruption and whistleblower expert affiliated with Brunel Law School in London, identified several shortcomings. Australia’s system “generates fewer retaliation complaints than what surveys of whistleblowers suggest is the real prevalence of it,” he said. In particular, Australia’s numbers lag behind the UK and US, Nyreröd said.
The low rate of success in retaliation cases in Australia “could suggest low-value nuisance claims, or that whistleblowers’ burden of proof in retaliation cases is too stringent,” Nyreröd said. Greater transparency on the outcomes of retaliation complaints, he said, “would aid in better designing whistleblower laws.”
Last November, Assistant Attorney General Amanda Stoker announced a plan to reform the system. She called the current law “inaccessible and overly complex” and said it suffers from “structural and technical flaws which make its provisions difficult to navigate and interpret.”
Though not directly related to the whistleblower law, public outcry followed the June 2019 police raids on the Australian Broadcasting Corporation, which reported alleged war crimes by Australian special forces in Afghanistan, and the home of Herald-Sun political editor Annika Smethurs, who exposed a government proposal to surveil e-mails, bank records and text messages of citizens.