The Whistleblower Project launch - Hon. Tony Fitzgerald AC KC

Good evening ladies and gentlemen.

I begin by acknowledging the traditional owners and custodians of the land where we meet today and pay my respects to elders past, present and future.

Thank you, Caitlin, for that kind introduction. It is a privilege to be here to launch an important addition to Australia’s legal landscape: the Human Rights Law Centre’s new Whistleblower Project.

Fortunately, there are people who speak out when they know or suspect that laws are being broken, or superiors are behaving unethically or there are dangers to the community or consumers or stakeholders which are not being addressed. The Project being launched today is a new step in encouraging and supporting these whistleblowers. It is a major initiative in relation to a matter of considerable public importance. Without whistleblowers, much more misconduct would pass unnoticed. For example, it is now commonplace in inquiries and royal commissions and the work of integrity bodies for internal witnesses to be a vital source of information concerning wrongdoing.

The importance of whistleblowers is increasingly recognised today by laws which seek to remove or reduce legal risks for people who speak up. Such laws exist in most, if not all, Australian jurisdictions. The basic intention of parliament is clear, to encourage and facilitate disclosures by whistleblowers to proper authorities, or if appropriate or necessary to the public, to ensure misconduct is investigated and dealt with.

It is an obvious objective of good whistleblower laws that those who speak up do not suffer reprisals or other injustice for doing so. Unfortunately, that essential objective is not yet being fully achieved.

Many of you will be familiar with the research conducted over a number of years by Griffith University, together with partners from government and business. I am indebted to Professor A J Brown, AM, who has led that research for highlighting some of the details which make it clear that whistleblower protection laws are working imperfectly.

Griffith University's reports, and an important report which the University, the Human Rights Law Centre, and Transparency International Australia published late last year, called Protecting Australia's Whistleblowers: The Federal Roadmap, show that, even when only those whistleblowers who undoubtedly acted in the public interest are considered, close to 60 per cent experienced some detriment, including 29 per cent who experienced harassment, dismissal or other serious adverse consequences. Almost half received no legal or practical remedy to address unjust outcomes and only 6 per cent have received compensation.

The Human Rights Law Centre has now released another report, The Cost of Courage, which considers the success rates of whistleblower protection claims filed under current legislation and looks directly at the extent to which Australia's whistleblower protection laws are working. It tells a disappointing story. Out of 78 known judgements arrived at by courts applying whistleblower protection laws, only 7 — or less than 10 per cent — have resulted in a substantive, merits-based judgment in favour of the whistleblower. To the best of my knowledge, only one case has seen a whistleblower actually awarded compensation for victimisation suffered following a public interest disclosure. Even then, that compensation was only $5,000 for non-economic loss, with the financial or career impact of the retaliation not factored in. There seems to be a large gap between the role that legal protections are meant to play, in theory, and what is happening in practice.

Law reform is obviously essential. A starting point is recognition that, while most agree about the importance of protecting whistleblowers in theory, in practice protection is often subordinated to an instinctive political commitment to secrecy to avoid political damage or at least public criticism and embarrassment.

In Queensland, a major review of the state's whistleblowing law by the Honourable Alan Wilson KC was released only two weeks ago. Its detailed analysis of the failure of the current Queensland protections conforms to the national picture. The Queensland Government is yet to respond in detail, but has said it 'broadly supports the findings' so hopefully reform will be swift — including, on Alan Wilson's recommendation, not just piecemeal reform but a whole new Act.

At the Commonwealth level, the Attorney-General, Mark Dreyfus KC has committed the government to an update of the Public Interest Disclosure Act containing whistleblower protections for federal public servants.

Our federal whistleblowing laws suffer fundamental flaws. This problem will continue to exist until governments are prepared to recalibrate the relationship between self-interest and the public interest.

Consolidation and consistency in whistleblowing laws are desirable. In 2017, the federal Parliamentary Joint Committee on Corporations and Financial Services, in a wide-ranging inquiry, recommended a halt to the proliferation of different, potentially conflicting and certainly confusing standards for protection in different types of organisations. The Committee recommended that improved whistleblower protections for the private and not-for-profit sectors should be brought together in a single Act. Hopefully, the commonwealth parliament will take a long-term view and abandon the present piecemeal approach.

There is another key step, and that is the one now being taken, not by government but by the Human Rights Law Centre. And we don't need to wait any longer, as it is being taken today, with the launch of this new Whistleblower Project.

Currently, there is no dedicated legal service, specialising in whistleblower protection, operating on a not-for-profit basis, and applying public interest criteria in order to offer free legal support to whistleblowers who need and deserve it. From today, thanks to the Human Rights Law Centre and its supporters from inside and outside the legal profession that gap will be filled. By its present initiative, the Centre will provide an Australia-first pro bono legal service to support whistleblowers, through advice and representation, law reform and policy work, and advocacy.

The importance of this step is obvious. Ordinary people cannot effectively access the protections which theoretically exist without professional legal support. Moreover, it is not just a matter of ensuring that legal services are available to give citizens fair access to justice in defence of their own rights. Affording legal protection to whistleblowers is not just about protecting individual rights. It is also about protecting the interests of the community.

I am very pleased to be here today to commend Caitlin, and the Human Rights Law Centre, and of course Kieran Pender, on the establishment of this project. I will leave them to fill you in, in more detail, on the strong support that has made this new service possible, which includes a great deal of pro-bono support from across the legal profession as well as support from the philanthropic sector.

And I emphasise that, even though it is being called a "project", what is now being introduced is a long-term, permanent if necessary, addition to Australia's community-based legal services to ensure that public interest whistleblowing has the support required to play its invaluable role in our public life.

It is plainly important that citizens speak up when things go wrong, especially perhaps but not only in the public sector. Those who confront that need should not have to suffer repercussions or setbacks to their lives or careers or financial exposure for doing so. The new Human Rights Law Centre Whistleblower Project is a major step in making Australia a more open and just society in the interests of all of us.

Congratulations to all those associated with this initiative and thank you for the opportunity to support you.