Joanna Connolly looks at the possible legal consequences of the Whitehouse Institute affair.

Earlier this month, the SRC passed a ‘motion of solidarity’ in support of Freya Newman – the UTS student at the center of the Whitehouse scholarship controversy (and now criminal investigation), and even spoke of offering the 20-year-old monetary assistance in the event of a trial. It remains to be seen whether the SRC’s Legal Service would actually contribute to Newman’s defence. But it does beg the question – what exactly would her defence be?

To recap, in June it was revealed that the Prime Minister’s daughter had been awarded a $60,000 scholarship to Whitehouse Institute of Design – unadvertised by the school, undeclared by the Prime Minister, and (deliciously) in spite of the broad acknowledgment of Frances’ rather limp artistic talent.

Recently, NSW police chose to charge Newman for her involvement in the affair – nabbing her with section 308H of the NSW Crimes Act. This prohibits “unauthorized access to restricted data held in a computer” (i.e. hacking). Police alleged that while working as a part-time night librarian at the Whitehouse Institute, Newman accessed the files of Frances Abbott and more than 500 other students. The offense carries a maximum of two years in jail.

The most immediate question to ask is: wasn’t Newman doing some sort of whistleblowing? Exposing an allegedly unadvertised, undeclared and unearned scholarship given to the daughter of a Prime Minister by a close family friend seems like it should fit the bill. It’s not exactly money in a brown paper bag, but it certainly stinks.

Whistleblowing itself is not a technical term and does not have a common legal definition. In its simplest form it’s about the disclosure of illegal or illegitimate practices in the public interest. In January of this year, a new whistleblowing bill came into effect in Australia. The Public Interest Disclosures Act gives legal immunity to Commonwealth public sector officials who give confidential information to an internal government ombudsman and also provides some limited immunity for leaks to the media.

It was promised as a comprehensive reform of whistleblowing laws in Australia. Yet the bill only applies to those who work for the government or in companies that contract to the government. Neither it nor any other scheme for that matter provides protection to a whistleblower from within the private sector. Given Whitehouse is a private educational institution it seems unlikely Newman will be covered by any whistleblower provisions operating in Australia at the moment.

Newman could pursue a common law defense. She might argue that her disclosure was in the public interest. Yet the defense is rare and difficult to establish. There isn’t much jurisprudence around whistleblowers in Australia, and with so little guidance from previous cases, it is hard to predict any outcome. Moreover Newman’s case involves the release of private information, not public, upon which the law looks much less fondly. It gets even more complicated once you factor in the other 500 students whose data Newman also allegedly accessed.

Without more facts it’s hard to say much about the merits of Newman’s case. Yet regardless of specifics, the Whitehouse incident helps to highlight a hole within Australia’s existing whistleblower law. The United Kingdom has a single, comprehensive protection law that applies to both the pubic and private sector. United States’ legislation and case law goes even further. Yet Australia lags behind and no one seems to mind. For conduct that is so vital to maintaining the integrity of public institutions, and that carries such personal risk for those contemplating it, the protections we currently afford are too narrow and far too unpredictable.