How to protect whistleblowers
OPINION | Democratic Freedoms
What would we not know were it but for brave whistleblowers speaking up? And what do we not know right now because the cost of courage in Australia is too high? These are the questions that keep me awake at night, and they are the reasons the Human Rights Law Centre is this week launching the Whistleblower Project, a new initiative to protect and empower Australian whistleblowers.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
What would we not know were it but for brave whistleblowers speaking up? And what do we not know right now because the cost of courage in Australia is too high? These are the questions that keep me awake at night, and they are the reasons the Human Rights Law Centre is this week launching the Whistleblower Project, a new initiative to protect and empower Australian whistleblowers.
Whistleblowers make Australia a better place. Workers who call out wrongdoing are the wellspring of public accountability, regulatory action and public-interest journalism. Think of the scandals that have rocked this nation in recent years: robodebt, war crimes in Afghanistan, misogyny at the highest levels in our public institutions, abuse in offshore detention, industrial-scale money laundering in casinos, widespread wrongdoing in the banking sector, mistreatment of children in youth detention, environmental devastation and climate inaction.
We know about this litany of wrongdoing because the witnesses to it – the whistleblowers – spoke up. Whistleblowers speak truth to power and, in doing so, empower all of us to demand justice. By exercising their right to free speech, whistleblowers protect the human rights of us all.
But right now in Australia, courage costs too much. Two whistleblowers, David McBride and Richard Boyle, are on trial. In November, McBride will be the first person on trial in relation to war crimes committed by Australian forces in Afghanistan – the whistleblower, not a war criminal. Boyle faces trial next year for exposing unethical debt recovery practices at the Australian Tax Office. Both have been vindicated by independent inquiries; both face jail time for telling the truth about government wrongdoing.
McBride and Boyle are the most high-profile current examples, but they are only the tip of the iceberg. Research shows most whistleblowers suffer workplace retaliation for speaking up. Some are sacked by their employers, others sued into submission. The psychological toll of speaking up can be enormous, and the financial cost – in lost earnings and legal fees – can be crippling.
Right now, wrongs are being committed in Australia that would make front pages, spark royal commissions, and lead to regulatory investigations. But they remain hidden because, faced with the prospect of jail time, lawsuits or being sacked, witnesses are staying silent.
Laws that are intended to protect and empower those who expose wrongdoing are not working. Research by the Human Rights Law Centre, to be published next week, has not identified a single successful case brought by a whistleblower under the relevant primary public and private sector regimes. Across all Australian whistleblowing laws, since the first ones were introduced in the early 1990s, there has only been one case of a whistleblower receiving court-ordered compensation for suffering workplace retaliation. They received a measly $5000.
The Albanese government has refused to drop the prosecutions of McBride and Boyle. It has been slow to act on substantive whistleblowing law reform. And it has walked back on a prior commitment, made ahead of the 2019 election, to establish a protection authority to oversee and enforce whistleblowing laws. Instead, the current government has only promised a discussion paper to consider the idea, and only then for public sector whistleblowers.
The mistreatment of whistleblowers means prospective truth-tellers stay silent. Right now, wrongs are being committed in Australia that would make front pages, spark royal commissions, and lead to regulatory investigations. But they remain hidden because, faced with the prospect of jail time, lawsuits or being sacked, witnesses are staying silent. That is damaging for our society. It degrades our democracy. When darkness prevails over light, wrongdoing goes unchecked. When whistleblowers suffer, we all suffer.
That is why, this week, the Human Rights Law Centre launched an Australia-first initiative to help whistleblowers. Thanks to support from philanthropic and funding partners and pro bono assistance from some of Australia’s leading law firms and barristers, we will help truth-tellers speak up safely and lawfully. The Whistleblower Project will ensure their testimony has impact, by working closely with journalists, civil society partners and politicians. And if the whistleblowers we assist face unlawful reprisals, we will explore legal action to vindicate their rights.
The concept of whistleblowing is as old as society itself. The ancient Greeks had a word for it: parrhesia, or fearless speech. The first whistleblowing laws came about in medieval England, when rulers incentivised subjects to speak up if others committed the heinous crime of working on the Sabbath. Abraham Lincoln adopted a similar approach during the American Civil War, enacting a law to help expose fraud and corruption that is still in use today. But it was not until the 1970s and ’80s that the modern concept emerged, first in the United States through dedicated laws, and then around the world.
Australia was once a world leader in whistleblower protections. Queensland was the first in the country to enact them in 1990, following the Fitzgerald inquiry into police and political misconduct in the sunshine state – and as such it’s fitting that Tony Fitzgerald, KC, formally launched our project on Wednesday. South Australia followed, before every state and territory enacted whistleblowing laws, with more at the federal level. But while these laws look good on paper, they do not work in practice. The laws are complex – one federal judge called them “technical, obtuse and intractable” – and whistleblowers have limited access to support.
In other countries, a critical aspect of the relative success of whistleblowing laws has been no-cost or low-cost access to legal support through civil society. Our project builds on the success of similar initiatives in England, Ireland, the United States, Serbia, France, Italy, Guatemala and, through La Plateforme de Protection des Lanceurs d’Alerte en Afrique, across Africa.
Thanks to the global peak body, Whistleblowing International Network, we have been able to learn from our counterparts about what works and what doesn’t, and we have developed our own model adapted to the Australian context. Some of our counterparts have been successfully assisting whistleblowers for decades now. We hope our project might become an enduring part of the transparency and accountability landscape in this country.
Our work is strictly nonpartisan – wrongdoing is not unique to any political party. As a community legal centre with limited resourcing, we may not be able to help everyone. We cannot help national security and intelligence-related whistleblowers – the law makes that much clear. But in the months and years ahead, we hope to play our part in helping Australians expose wrongdoing in a lawful manner, maximising the impact of their disclosures while minimising the risk.
One focus of our work will be whistleblowing on climate and environmental-related wrongdoing. The climate crisis is the accountability and human rights issue of our time; we need truth and transparency around emissions reductions, new and existing oil and gas projects, carbon offsets, illegal logging, biodiversity loss, the destruction of First Peoples’ sacred sites and more. We can help those who work for fossil-fuel companies, for lethargic regulators or for public-sector departments that aren’t taking global warming seriously when they witness wrongdoing.
We will do all of this alongside our ongoing law reform and advocacy work, aiming to improve the legal framework in which whistleblowers speak up and urging an end to the prosecution of truth-tellers. We will continue to call on the attorney-general, Mark Dreyfus, KC, to overhaul related laws and establish a whistleblower protection authority – moves that cannot come soon enough.
No one sets out to become a whistleblower. I have been fortunate to work with dozens during my career, in all different sectors, in Australia and abroad. Universally they have told me they did not self-identify with that label. They merely thought they were doing the right thing in speaking up. It was only later, when things went sour, when they lost their job, when they were sued, when they were facing jail time, that they realised they had blown the whistle.
It should not be that way. As a society that values accountability and justice, respect for human rights, good government and good governance, we should applaud those who speak up. They should be heroes, not villains. Australia will be a better place when whistleblowers are protected and empowered, not punished and prosecuted. Too often they feel isolated and alone.
Some still speak up, despite the risks. Some have called out the scandals of our time, ensuring we knew about robodebt, war crimes, abuse, harassment, corruption, fraud and human rights violations. But I keep coming back to those questions: what if they hadn’t spoken up? And what don’t we know, because so many stay silent? We urgently need laws, institutions, structures and support to ensure that courage is less costly. I hope the Whistleblower Project is a step in the right direction.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.