Virtually every whistleblower faces retaliation, no matter whether they are in the public or private sector, or NGOs, and regardless of their position. Retaliation is the reflexive response of systems of power to those who embarrass or threaten them. A public profile is no protection. As the example of Brittany Higgins shows, a public profile may in fact dramatically widen the scope for retaliation, with partisan media companies deploying their capacity for public smearing and humiliation.
And public sector bodies can retaliate even more savagely than corporations or NGOs. As the case of Bernard Collaery demonstrated, the security and political establishment pursued vexatious prosecution seeking to jail him, abandoned the Commonwealth’s model litigant obligation and overrode the most basic principles of criminal justice to retaliate against him.
Addressing the balance of power between whistleblowers and those who use institutional power to punish them is thus a key feature of any effective set of whistleblower laws. As it turns out, Australia’s laws don’t effectively do that, the Human Rights Law Centre (HRLC) says in a new report.
It’s just over a decade since the first Commonwealth whistleblower laws were passed, in June 2013, under the guidance of then-attorney-general Mark Dreyfus, who as a backbencher in the Rudd government had chaired a parliamentary committee that recommended whistleblower laws. The laws remained essentially untouched under the Coalition, though to her great credit, Kelly O’Dwyer introduced substantial reforms to better protect private sector whistleblowers in 2017.
Dreyfus, now once again attorney-general, has already legislated one set of amendments to the Public Interest Disclosure Act 2013, and is preparing a second round, including a discussion paper on establishing a Commonwealth whistleblower protection body.
The laws definitely need reform. According to the HRLC’s research, there has not been a single completely successful case relating to whistleblowers under either Commonwealth or state whistleblower protection laws. Of the 70 cases examined, just seven led to “substantive, merits-based judgments in relation to whistleblower protections”.
Getting a read on the application of the laws is difficult as most cases end up being discontinued or settled, but the HRLC says dealing with retaliation is the biggest problem:
The most common barrier to a successful claim for whistleblower protection was a failure by the whistleblower to prove the retaliation. Particularly, whistleblowers struggled to establish the causal element between the alleged reprisal action and the relevant public interest disclosure that was made (i.e. that the fact that the public interest disclosure was made must be linked to why the employer undertook the relevant reprisal action). This is a recurring challenge in the global whistleblower protection experience, with unrealistic expectations on what whistleblowers can prove given the power asymmetry between employer and employee.
A whistleblower protection commissioner or body would partly address this, bringing greater resources to the whistleblower seeking to prove retaliation. But as we saw during the Coalition years, independent commissioners and ombudsmen intended to act as a watchdog on the executive can be starved of funding, not appointed at all, or misled by bureaucrats trying to cover up misconduct.
The HRLC wants amendments to the current legislation to make it easier for whistleblowers to pursue their victimisers in court. Under the O’Dwyer corporate whistleblower legislation, victims don’t need to prove that the crime of victimising them has been carried out before they seek compensation; HRLC wants either “a reverse onus provision” like that, “or by providing for an enforceable duty on the employer to prevent detrimental acts or omissions”.
In addition to that change and an independent body, it also recommends a support fund for whistleblowers, a US-style rewards scheme in which whistleblowers can share in some of the penalties levied on offenders, and what are called “qui tam” laws, under which a whistleblower can commence a prosecution on behalf of the government.
These have been shown to be effective against corporate wrongdoing. But altering the power imbalance between whistleblowers and state institutions that can wield far more legal firepower than any corporation is also crucial. Delivering more effective and user-friendly laws on that front would make Dreyfus, already the patron saint of whistleblower laws in Australia, a true champion.
the Human Rights Law Centre (HRLC) report that Keane’s article cites, with a link, includes this:
Naive, surely? It is far more believable that these laws, which have provided no protection to any whistleblower, are working exactly as intended by the governments that made them.
As many pointed out at the time, all Dreyfus’ p1ss-weak Bill, the laughably named Public Interest Disclosure Protection Act, did was put at bulls-eye on the forehed of anyone following, as did Richard Boyle (ATO) & David McBride (ADF), the requirement that those with concerns should, in the first instance, notify their senior officer in the chain of command..
It is axiomatic and long established that those up the food chain are usually well aware of, if not complicit, in the bad behaviour causing concern.
In both cases, Boyle & McBride, the organisations moved to end the practice/s rightly indentifed yet still persecuted…sorry, prosecuted theose with the temerity to point out the failings.
So, yes, working as planned.
So long as McBride and Boyle are being pursued without protection, Dreyfus is no patron saint of whistleblower laws. He has shown himself to be a legal milquetoast.
Yes, a bit like requiring a child being abused to first notify the abuser before being taken seriously by anyone else.
Agree with the previous comment. It has to be acknowledged that we don’t have human rights legislation in Australia. What we need now as I have been saying for years is a Bill of Rights. Something that whistleblowers can point to for protection. Knowing Dreyfuss and his mob as I do this would be a weak-as-water Bill that you can drive the Titanic through. We will always now and forever face corruption and various malpractices by government agencies, departments and private corporations. Things have been getting worse not better people! And I remember when it was only bent NSW cops that were on the take. Them and the bottom-of-the-harbour businesses of the 1970s. Now corruption has taken on a broader concept and practice. Sickening isn’t it?!
Alternatively, you just suspend it when it’s inconvenient, QLD showing the way how it’s done.
As Sam Goldwyn pointed out re verbal contracts, a BoR isn’t wirth the paper it is written on without the will of those in power to obey the stipulations.
This can’t come fast enough. We already have Boyle and McBride facing prosecutions where they should be witnesses in cases against the ATO and Defence. It’s not a huge ask. How about it, Labor? Time to actually do something for which we voted you in.
There is an ever-growing list of things for which we voted them in only to find they do nothing.
Legislation described as providing protection should not require that a person be victimised before it takes effect. The object should clearly be to prevent the victimisation in the first place.
Likewise being required to first take your suspicions or accusations to your immediate superior in the first instance defies all logic since the superior person is almost certain to be complicit in what is being complained about.
Drefus’s actions in this issue defy all logic.
Were whistle-blowing, in the form of positive criticism, encouraged and rewarded we’d be in danger of creating the perfect society. And we can’t have that. So bury your whistle and then forget where you buried it.