Renewed Calls to Protect Whistleblowers

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Senator Nick Xenophon wants to get rid of laws that make it a criminal offence for public sector employees to leak information that is embarrassing to the government.

The laws

Section 70 of the Crimes Act 1914 (Cth) (‘the Act’) currently prohibits Commonwealth employees from communicating or publishing information obtained by virtue of their position, regardless of whether it reveals abuses of power. The maximum penalty is two years’ imprisonment.

Section 79 of the Act additionally makes it an offence for ‘entrusted persons’ – including government employees, officers and even contractors – to disclose information given to them in confidence. The maximum penalty ranges from six months to seven years’ imprisonment, depending on the nature of the disclosure.

Mr Xenophon argues that these laws “…are currently about protecting government from embarrassment, rather than from the public being informed of maladministration or malfeasance in government”.

He believes the current Centrelink debt recovery scandal highlights the importance of protecting those who reveal information in the public interest.

The scandal

Since July 2016, more than 232,000 letters have been sent to Centrelink recipients under its automated debt recovery scheme, seeking to extract an extra $4.5 billion.

It has been reported that a Centrelink compliance officer has leaked information that staff members were instructed to pursue alleged debts regardless of the veracity of the allegations, and not to correct errors until and unless they were identified by the customer.

The whistleblower also reportedly advised that incorrect debts were being generated by the inclusion of non-assessable income, or by considering payments never actually made by Centrelink, or through a fault in the system that doubled income from the same employer.

“I see these reviews everyday and I am horrified at what I am being directed to do,” the officer wrote.

The whitewash

An internal memorandum from Centrelink’s general manager of people services, Adrian Hudson was recently leaked, which cautioned staff to only make disclosures “through the proper channel.”

The email, headed “Public interest disclosures and ‘leaking’ are not the same”, warns staff that “there are very limited circumstances where you can make a disclosure externally”.

“You’ll be protected if you make a disclosure through the proper channel — in the first instance to the department,” it said. “Outside of the [Public Interest Disclosure Act 2013], an employee who makes a disclosure externally will not be protected and may in fact be committing a criminal offence and be in breach of the APS Code of Conduct.”

The Community and Public Sector Union (CPSU) responded by saying that Centrelink was “monstering” its employees. “DHS staff work hard to help ordinary Australians and are frustrated that the agency has been run into the ground and that service standards are totally unacceptable,” said CPSU Deputy National President Lisa Newman.

The Union has released an open letter to welfare recipients and its members stating, “We know that the automated debt notices are unfair, unjust and callous… We acknowledge that, in a great many cases, they are not your debts.”

Public opinion

Last week’s Essential Poll asked 1,015 Australians about their thoughts on Centrelink’s debt recovery system, with respondents being told that the system involves “welfare recipients being automatically sent notifications regarding possible overpayments.”

48% of those surveyed disapproved of the automated system, 36% approved and 16% held no opinion.

When asked which issue they felt more concerned about, 8% said overpayment to welfare recipients, 46% said politicians’ travel expenses and 40% said both issues concerned them equally.

Political response

The controversial debt recovery program is set to be scrutinised by the Commonwealth Auditor-General.

It was also be subjected to parliamentary scrutiny with Labor, the Greens and Nick Xenaphon likely to form a majority in the Senate to establish an inquiry.

Prime Minister Malcolm Turnbull dismissed calls for an inquiry, claiming that Centrelink had been acting appropriately. “Centrelink has a responsibility where it identifies the discrepancy between what the recipient has reported and what the employer has reported to seek an explanation and that is being done,” Turnbull said.

Paul Shetler, the former digital transformation office head, criticised the government’s response, calling the 20% error rate in Centrelink’s data-matching process “so unfathomably high that it would send a commercial enterprise out of business”.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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