Available court records suggest that Australia’s federal whistleblowing laws have not successfully safeguarded a single person since their establishment.
The Human Rights Law Centre (HRLC) recently published a report examining 78 court decisions involving 70 distinct cases, wherein whistleblowers sought protection under federal and state whistleblowing frameworks.
According to the report, there has been “no successful case” brought forward by a whistleblower under various federal laws designed to shield both public and private sector employees who expose misconduct.
The report identified merely 15 cases at the state or territorial level where either a whistleblower or their representative achieved success—constituting a success rate of approximately one in five cases.
Out of these successful instances, one saw a whistleblower receive a modest $5,000 for enduring reprisals subsequent to disclosure. Four cases focused on preventing the revelation of a whistleblower’s identity, while two centered on whistleblowers’ access to information or documents.
Failed cases often arose from an inability to establish a direct link between reprisal and a whistleblower’s decision to speak out. Furthermore, 21 of the unsuccessful cases involved self-represented whistleblowers, highlighting challenges related to “access to justice.”
It’s important to note that the report’s scope was confined to publicly accessible judgments, rendering it non-exhaustive and unable to encompass confidential negotiated settlements.
Despite these limitations, author Kieran Pender asserted that the findings underscored the tangible challenges confronting whistleblowers relying on protections offered at both federal and state levels.
Pender stated, “The research shows that Australian whistleblowing laws are not working as intended – protections that look good on paper have not translated into practically accessible, enforceable rights in practice.”
Australia’s whistleblower protections often amount to mere symbolic gestures, according to Pender.
Currently, the Labor government is pursuing reforms to its Public Interest Disclosure Act, which is designed to safeguard government employees and commenced in 2014. The first phase of these reforms was passed in June, with additional reforms pending.
The HRLC, having recently launched its own whistleblower legal support service, has proposed numerous recommendations for enhancing whistleblower laws nationwide. These include implementing a reverse onus on employers to prevent detrimental actions against whistleblowers, akin to federal corporate whistleblowing protections.
The report also advocates for the establishment of dedicated regulatory bodies to enforce whistleblowing laws and the creation of whistleblower protection authorities in each jurisdiction to advise and defend individuals.
Additionally, the HRLC suggests the establishment of a whistleblowing office within the federal parliament to train MPs and senators in handling whistleblowers, along with the creation of a public funding scheme to provide proper legal representation for whistleblowers. The report also calls for incentive-based reward schemes for whistleblowers who expose matters of public interest and for laws permitting whistleblowers to initiate proceedings on behalf of the government regarding fraud in government contracting. These two proposals are inspired by existing schemes in the United States.
Independent senator David Pocock criticized the current state of whistleblower protection in Australia, highlighting that current laws are not effectively encouraging individuals to expose corruption and misconduct.