Urgent Reform is needed for Australia’s inadequate whistleblower protections

The increasing complexity of legal understanding needed to blow the whistle on corrupt conduct is likely beyond the comprehension of regular employees, and possibly even those with a law degree.

The patchwork of legal provisions encompassing multiple legislative instruments lead to an unrealistic level of sophistication required on the part of whistleblowers.

Despite many campaigns and official Parliamentary reports, the situation hasn’t changed. This has led to one of Australia’s highest profile whistleblowers, Jeff Morris, who exposed rampant misconduct inside the Commonwealth Bank’s financial planning division to say:

‘don’t put your faith in any of the whistleblower protections. The best thing you can do would be to send documents to an investigative journalist anonymously and walk away.’

It’s a sad state of affairs indeed if this is situation in which Australia now finds itself.

So how did we get here?

The current whistleblower protection regime is covered by multiple pieces of legislation, including but not only:

• The Commonwealth Public Interest Disclosures Act (PID)
• The National Security Amendment Act (No 1)
• The Fair Work (Registered Organisations) Act
• The National Disability Insurance Scheme Act
• The Corporations Act
• The Aged Care Act
• Various Taxation Administration legislation
• State legislation like State PID Acts.

The need for a comprehensive, sector agnostic and harmonised legislative regime is clearly of vital need and has been for some time. Back in 2017, Labor Senator Deborah O’Neill wrote in the Parliamentary Joint Committee on Corporations and Financial Services Report ‘Whistleblower Protections’:

‘Currently, whistleblower protections are simply not working. They’re inadequate and are rarely used, especially in the corporate sector. Whistleblowers are not coming forward, and that is because we have failed to protect them.

Back then, Senator O’Neill urged the former government to support greater consistency and harmonisation across both public and private sector whistleblower legislation, including the establishment of a whistleblower protection authority as an ‘essential ingredient’ of an effective whistleblower protection system.

The last major change to private sector protections was during the 2019 update of the Corporations Act. Public sector protections via the Commonwealth PID Act are still mostly from 2013, with a minor amendment last year in 2022.

Multiple Acts, all amended at different times, mostly with different protections. Not ideal.

The Federal Government missed an opportunity during the creation of the 2022 National Anti-Corruption Commission (NACC), shirking from creating better whistleblower protections, choosing instead to legislate those minor amendments to the existing PID Act, while committing to a further review of the Act due late in 2023.

This was despite a whistleblowing authority being requested and included in a crossbench amendment during the debate to establish the NACC.

At the time, prominent whistleblower advocate and senior lawyer at the Human Rights Law Centre Kieran Pender said:

‘The NACC will be ineffective without whistleblowers,

…

If those who witness corruption do not feel confident to speak up, how will the National Anti-Corruption Commission do its job effectively and robustly? Whistleblowers are the lifeblood of integrity bodies, but the Commission lacks a robust whistleblowing framework and a dedicated whistleblower protection office or commissioner.’

It was a missed opportunity that continues to the real-world consequences of the status quo.

Currently, there are two prominent whistleblowers on trial. Former Defence lawyer David McBride for his role in the ABC’s landmark Afghan Files reporting, and former public servant Richard Boyle for disclosing protected information from the ATO.

Both cases are incredibly sensitive for the Federal Government, and the results could be a significant landmark for what happens next.

So, what needs to be done?

Lucky for us, this question has been answered. Griffith University’s Centre for Governance and Public Policy, the Human Rights Law Centre and Transparency International have jointly published a new report, Protecting Australia’s Whistleblowers: The Federal Roadmap.

The report outlines 12 steps that the government must take in the months ahead to ensure Australia’s whistleblowers are able to tell the truth about wrongdoing without fear of retaliation.

The report includes recommendations for:

• The establishment of a whistleblower protection authority to oversee and enforce federal whistleblowing laws and provide practical assistance to whistleblowers
• A comprehensive law covering all private sector whistleblowers
• A positive duty for employers to protect whistleblowers
• Improved remedies for whistleblowers who suffer detriment
• Streamlined provisions for when internal disclosures fail, and a whistleblower needs to go public via a journalist or member of parliament.

Most of these recommendations are not new.

The ALP went to the 2019 Federal election stating that if elected, they would introduce a single Whistleblower Act, a Whistleblower Protection Authority, and consider implementing rewards for whistleblowers.

An independent whistleblower protection body was called for by a parliamentary committee back in both 1991 and 1994, then again by a bipartisan parliamentary committee report in 2017.

We at the Governance Institute have also advocated for these reforms for many years, something we recently reaffirmed in a submission to the Parliamentary Joint Committee on Corporations and Financial Services.

In our submission, we recommended:

• A stand-alone, general whistleblower protection regime in its own Act, applicable to the private sector, and
• The establishment of a whistleblower protection authority to undertake the whistleblower protection role and implement the new scheme.

Sound familiar?

To their credit, the Federal Government has indicated that significant reforms will be considered to the PID Act, and there is a golden opportunity during the review of the Corporations Act happening next year.

But it remains disappointing that despite the Federal Government stating publicly that they see this as an issue that needs addressing, nothing of significance has been resolved and whistleblowers remain burdened – and in danger – by the status quo of an uncoordinated legislative patchwork.

Hopefully, the Government can heed their own words and create proper reform that protects whistleblowers and that doesn’t require a legal expert to decipher.

Governance Institute will continue to advocate for this important reform as proper and clear protections for whistleblowers is critical to help identify and stop corporate misconduct.