Whistleblowers need protection
OPINION | Democratic Freedoms
Whistleblowers are vital actors in our democracy, upholding our right to know. Without them – and the public interest journalism they make possible – corruption and human rights abuses go unaddressed. In recent weeks, Senator David Pocock and members of parliament Zoe Daniel and Andrew Wilkie have all given voice to whistleblowers.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
Pocock highlighted that an oil spill at a Santos facility in Western Australia had killed dolphins, and that the gas giant covered it up. Daniel told parliament that she had been contacted by whistleblowers working at a youth detention centre in Victoria, where children were allegedly being kept in solitary confinement for up to 22 hours a day. And last week Wilkie, a former whistleblower himself, tabled reams of documents that he said showed fraud and other unlawful conduct at megachurch Hillsong.
Pocock, Daniel and Wilkie were able to make these disturbing claims public because they and their sources were protected by parliamentary privilege, a doctrine dating back centuries that protects the proceedings of parliament. Immediately the disclosures sparked calls for accountability – Santos has commissioned an independent investigation into “Dolphingate”; the charities regulator has said it is investigating Hillsong.
Without whistleblowers, and willing crossbenchers, we might never have heard these allegations of environmental wrongdoing, mistreatment of children or money laundering by a charity.
But whistleblowers shouldn’t have to turn to politicians for accountability when they witness suspected wrongdoing. Parliamentary privilege should be a safeguard of last resort. Whistleblowers should instead be empowered to make public interest disclosures under strong laws that protect them from losing their jobs or being sued for speaking up. Unfortunately, our laws offer little such protection.
Even when whistleblowers turn to politicians, they do so cautiously. Daniel spoke about the “concerns about retaliation” among the whistleblowers who came to her. Troy Stolz, who blew the whistle on potential unlawful conduct at clubs and pubs, was sued by ClubsNSW for giving documents to Wilkie (and the media) – his case only recently settled, after years of stress and hundreds of thousands of dollars in legal fees, and following the intervention of parliament’s privileges committee.
How many whistleblowers are not coming forward? What wrongdoing remains in the shadows because our laws are not serving us? The crossbench can give voice to only so many. Without robust reform and new institutional structures, Australia’s whistleblowers will continue to be punished rather than protected. When we fail to empower these courageous truth-tellers, our democracy suffers. When whistleblowers stay silent in the face of wrongdoing, we all suffer.
Another recent story only underscores the importance of whistleblowing: the robo-debt royal commission. If more public servants had felt protected and empowered to speak up, or those in positions of authority had listened to the few brave staff who did object to the unlawful scheme, taxpayers may have been saved more than a billion dollars. More importantly, a number of suicides and the distress of thousands of people may have been prevented. There would be no need for a royal commission had robo-debt been stopped when the alarm bells first rang; we prevent the next robo-debt by helping people speak up and listening when they do.
“Without robust reform and new institutional structures, Australia’s whistleblowers will continue to be punished rather than protected.”
The good news is that reform is on the horizon. The first tranche of amendments to federal public sector whistleblowing law, the Public Interest Disclosure Act (PID Act), is currently before parliament; a senate committee inquiry into the bill was published this week. It should pass with minor tweaks in the weeks or months ahead.
In 2019, a Federal Court judge blasted the PID Act as “technical, obtuse and intractable”. That needs to change. The bill is a good start – but not much more than that.
For Attorney-General Mark Dreyfus, who oversaw the enactment of the PID Act in 2013, the hard work now begins. We need more ambitious, sweeping reform to bring the PID Act in line with international best practice.
The new laws need several features to be a success: a “no wrong doors” model that helps whistleblowers no matter where they turn, or which point of entry they attempt in telling the truth; stronger protections and accessible remedies for whistleblowers who face retaliation; an enforceable positive duty on government agencies to protect whistleblowers; clearer channels for lawfully blowing the whistle to the media; and greater practical support for whistleblowers.
PID Act reform should be made in lock step with changes to the private sector whistleblowing scheme in the Corporations Act. This covers the vast majority of Australian workers – including anyone who works for a company. These protections are better than the PID Act, and they were last updated in 2019. But a major reason for Australia’s frail, inconsistent whistleblower protections framework is that reform efforts have treated each scheme in isolation, despite significant overlap. It would be far better to fix all federal whistleblower laws at once, and bring all private, non-profit and union sector protections into a single scheme. Consistency and uniformity should be key objectives.
Institutional innovation is essential. At the moment, Australia’s whistleblowers lack any centralised avenue for support. If you witnessed wrongdoing at work, where would you turn? There are few lawyers who specialise in the area (although at the Human Rights Law Centre, we are in the process of establishing a dedicated legal service for whistleblowers). Victims of wage theft or workplace exploitation can go to the Fair Work Ombudsman; the Australian Human Rights Commission and a number of specialised services support those who have been sexually harassed at work. For now, whistleblowers have no one in their corner.
That can be fixed with the establishment of a whistleblower protection authority. Such a body was a central aspect of the crossbench’s legislation to establish a federal anti-corruption commission. But despite Dreyfus’s promise that the National Anti-Corruption Commission (NACC) would be extremely similar to the crossbench design, a whistleblower body was not included in the legislation that passed parliament in November. The government has instead promised a discussion paper on the need for a whistleblower authority – even though it committed to such a body before the 2019 election.
I have recently been in the United States, meeting with two equivalent American bodies. The US Office of Special Counsel is a centralised hub for public sector whistleblowers; it oversees agencies as they investigate wrongdoing alleged by whistleblowers, investigates allegations of reprisals against whistleblowers and takes enforcement action, manages alternative dispute resolution for whistleblower complaints and intervenes in important whistleblower cases. We need an Australian equivalent, ideally one that also has jurisdiction over the private sector (in the US this function is split across several regulators).
I also met with the Office of Whistleblower Ombuds in the house of representatives, an independent body that helps congresspeople and committees in their dealings with whistleblowers. Given the important role played by MPs and senators in giving voice to Australian whistleblowers, an equivalent in Australia would add vital institutional support.
Through a combination of ambitious law reform and innovative institutional changes, the unfulfilled promise of Australia’s whistleblower framework can become reality.
Unfortunately, Labor has continued to oversee the prosecution of whistleblowers that began under the Coalition. Despite ending the prosecution of Bernard Collaery, Labor continues to oversee cases against tax office whistleblower Richard Boyle and defence whistleblower David McBride.
These cases are entirely contrary to the public interest. Boyle spoke up about unethical debt recovery practices at the tax office; McBride blew the whistle on alleged war crimes committed by Australian forces in Afghanistan. Each thought they were doing the right thing, speaking up internally, then to oversight bodies, and only to the media as a last resort. They should be protected by the PID Act; instead, they are on trial.
Dreyfus could end these cases with the stroke of a pen. Boyle is awaiting judgement in his defence under the PID Act; if he loses, he will face trial in October. McBride’s PID Act defence was withdrawn at the last moment after an extraordinary national security intervention by the government. He will face trial later this year. McBride remains the only person charged to date in relation to the war crimes allegedly committed by Australian forces in Afghanistan. Not the perpetrators, but the truth-teller.
If Boyle or McBride are ultimately found guilty, and imprisoned, it will be on Labor’s watch. These cases send a chilling message to other whistleblowers about the risks of speaking up. They undermine the otherwise good work being done by this government.
Prosecutions aside, the Albanese government’s commitment to substantial whistleblower reform is admirable. Dreyfus has a strong track record, dating all the way back to his time as a backbencher chairing the committee that recommended the PID Act. But words are only the start. In the months ahead, all Australians need to see concrete action on whistleblower reform. We need ambition to truly protect and empower those who speak up about wrongdoing, and ensure their calls are heeded.
The commencement of the National Anti-Corruption Commission in the months ahead will be a landmark moment for accountability in Australia, but the NACC will be ineffective without whistleblowers. If those who witness corruption do not feel confident to speak up, how will the NACC do its job?
With ambitious reform and the establishment of a protection authority, 2023 could be the year of the whistleblower. That would be a fitting tribute to the courage shown by these brave Australians.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.