A blunder at the home affairs department has revealed the identity of a whistleblower and sensitive details of their disclosure, a mistake that could constitute a criminal offence punishable by six months’ imprisonment.
The error occurred on 12 June, when staff handling a whistleblower’s complaint mixed up his email address with that of another, unrelated complainant.
Home affairs staff mistakenly sent the wrong recipient an email naming the whistleblower and attaching a document detailing the substance of his complaint and the final report of a confidential home affairs investigation.
Disclosing the identity of a whistleblower without consent is generally considered an offence under Australia’s public interest disclosure laws.
The recipient, upon realising the error, alerted the commonwealth ombudsman’s office to the department’s actions, complaining that they amounted to a crime.
The ombudsman’s office alerted the department to its mistake on 29 June, and the department then attempted to retract the email without success, before contacting the mistaken recipient to ask it be deleted.
Home affairs then contacted the whistleblower, using the right email, and sent on the investigation report. It is not clear whether the department advised the individual about its mistake.
The error is now the subject of an internal investigation. When approached by the Guardian, the department acknowledged the error and its gravity.
“The Department recognises the seriousness of this matter and makes every endeavour to protect disclosers who make an allegation,” it said in a statement. “The Department has amended its procedures to prevent any recurrence.”
The substance of the outed whistleblower’s complaint is not known by the Guardian and the investigation report detailing his disclosure has not been seen by the Guardian.
Questions remain about the way the department responded to the bungle.
The investigation into the mistake is not being conducted by an independent agency. Instead, the department is investigating its own actions, despite the fact they may rise to the level of a criminal offence.
The mistaken recipient had deliberately asked the ombudsman to look into the matter to preserve the independence of any investigation.
But the ombudsman refused to investigate and instead passed it back to home affairs.
That prompted the wrongful recipient to complain to the ombudsman.
“Why would you seek to allocate my disclosure to those very same people?” the recipient wrote. “Isn’t there an inherent problem with someone investigating their own behaviour (including because there’s an unavoidable conflict of interest?)”
The ombudsman replied that home affairs was “better placed” to handle the matter.
“It is our view that agencies where suspected disclosable conduct has occurred are generally better placed to handle disclosures given they have full access to the records and personnel involved,” the ombudsman said. “Agencies are also in a better position to conduct an assessment of possible reprisal against disclosers from their own agency, and to act in response to allegations of reprisal action.”
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The Guardian approached the ombudsman for comment. It said it could not speak about the case due to the secrecy provisions of Australian whistleblowing laws.
But, in a statement, the ombudsman’s office said: “It is not unusual for agencies to investigate the actions, or alleged actions, of their own staff.”
Prof AJ Brown, an expert on whistleblowing laws with Griffith University and Transparency International board member, said the case raised serious concerns about how well federal agencies were administering their obligations under the PID Act.
Brown said it confirmed what was already known about the system: that it was clunky and focused on “paper-pushing” rather than the actual protection of whistleblowers.
“It seems to be a matter of pure luck that the person to whom the report was sent was not another complainant, witness or subject with any motive to publish the information or undertake detrimental action against the whistleblower,” he said.
“This real risk makes any breach like this a very serious matter, going to the heart of the real quality of protection under the scheme.”
He said the only explanation for the error was an “extremely rudimentary case management system, without any basic checks and balances, administered without due care”. That made it important that the department upgrade the system, Brown said, and that this was thoroughly and independently verified by the ombudsman.
“This is especially important if there is to be assurance that other agencies are not operating with similarly weak systems, which could be just as prone to error,” he said.
The ombudsman should also investigate whether any damage had resulted from the error.
The attorney general, Christian Porter, has previously proposed significant changes to whistleblowing laws. The former integrity commissioner Philip Moss reviewed the public interest disclosure regime in 2016, finding the scheme was complex, difficult to apply and did not properly address the concerns of whistleblowers.
In an address to the press club last year, Porter said his government wanted to go further than the recommendations made by Moss.
A spokesman for Porter told the Guardian that reforms were still being considered and the response to the 2016 Moss review would be released “at an appropriate time”.
“Obviously it was not long after the attorney general’s address that the government’s focus shifted to keeping Australians safe from the Covid-19 pandemic and managing the economic impacts of the pandemic,” he said.
Brown said the home affairs case highlighted the inadequacy of the protections available to whistleblowers.
If damage was done by the department’s mistake, the whistleblower would not be entitled to compensation or legal remedies, because the department’s actions were not a knowing or deliberate reprisal against the individual over his decision to blow the whistle.
“This is despite the wealth of research evidence that negligence and failures in proper support and protection, and not simply direct reprisals, are the source of serious detrimental outcomes for whistleblowers in the vast majority of cases,” he said.
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