Interesting issues were raised in the weekend media about confidential information and what makes someone a whistleblower.

The NBN Situation

Dr Ziggy Switkowski , the chair of the National Broadband Network published an opinion piece in The Age on 28 May 2016, analysed that day by Matthew Knott.

– Ziggy Switkowski: NBN leakers were thieves, not whistleblowers
– Switkowski: NBN makes no apologies for police report
– Election 2016: news, analysis and video

“Australian Federal Police officers last week raided the Melbourne office of former communications minister Stephen Conroy and the home of a Labor staffer as part of an investigation into the alleged leaking of confidential NBN documents,” Matthew Knott recounts. “Opposition Leader Bill Shorten accused the Turnbull government – through the NBN – of muzzling whistleblowers and limiting the public’s right to know about the progress of one of the biggest infrastructure projects in Australian history.”

Dr Switkowski says the leaks are theft not whistleblowing.

Mr Knott quoted Dr Switkowski on the following points that are salient when drawing parallels with the situation of Victorian public sector (VPS) employees:

– When dozens of confidential company documents are stolen, this is theft
– NBN has a well established process for responding to information from whistleblowers with a notification process managed by an independent third party. None of the matters in the stolen documents have been raised through this channel.
– If an employee has strong personal conviction unsupportive of a company’s strategy, they can argue their case with management or resign.
– They cannot give voice to their preferred ideology by passing on stolen documents … internal NBN documents marked “commercial in confidence”.

What rules apply to Victorian public sector employees?

Just like at NBN, if a Victorian public sector (VPS) employee has strong personal concerns about their organisation’s strategy or government policy, the courses of action open to them include discussing the matter with management or resigning. Other channels sometimes suggested as appropriate for raising particular concerns include the Ombudsman, Victorian Public Sector Commission, Victorian Auditor General’s Office, Victoria Police, the Department of Premier and Cabinet and IBAC.

If a personal view precludes a VPS employee from carrying out management directions or their public service duties, this may raise employment contract or Code of Conduct issues.

VPS employees are required by the Constitution Act 1975, Public Administration Act 2004 and Codes of Conduct to remain apolitical and avoid involvement in political activities at all times. Breach of these obligations could lead to disciplinary action or a finding of misconduct.

The VPS Code of Conduct requires VPS employees to “respect the confidentiality of ministerial and government considerations leading to a decision, and decline to provide personal views or judgements on government policy or policy options of the Victorian or other governments.”

Documents marked “confidential” should be kept secret by VPS employees i.e. only shared with others who are properly entitled to access the information.

If a VPS employee were to leak “commercial-in-confidence” information to the media, this may constitute a breach of the VPS Code of Conduct leading to disciplinary action and could also potentially be a crime.

If a VPS employee received payment in exchange for providing confidential government information, this could amount to corruption.

On the other hand, VPS employees are encouraged to report corrupt or improper conduct by a public officer or body, and will receive whistleblower protection in relation to “protected disclosures”.

To be a whistleblower – using that word in the sense of a person with a statutory entitlement to whistleblower protection rather than in the general sense of someone exposing information arguably in the public interest – VPS employees must follow the applicable protected disclosure process. The IBAC website says:

If you become a protected discloser

You can’t tell anyone the details of your complaint. Exceptions include:

– A lawyer
– An interpreter
– (if you are under 18) a parent or guardian.

The Protected Disclosure Act 2012 (Vic) establishes a regime for making a complaint in a confidential and protected manner. IBAC has published guidance about making a protected disclosure and provides advice on the process for doing this.