Whistleblower protection must not be an afterthought – it is the main game of integrity

<span>Photograph: Mick Tsikas/AAP</span>
Photograph: Mick Tsikas/AAP

It has been a momentous week for integrity in Australia.

On Monday, Iraq war whistleblower Andrew Wilkie used parliamentary privilege to reveal allegations of fraudulent coal testing by Australian companies, tabling documents provided to his office by an industry whistleblower. Wilkie claimed coal exporters had been “lying for years about the quality of our coal,” with major implications for emissions reduction and Australia’s contribution to the climate crisis.

On Tuesday, the attorney general, Mark Dreyfus, introduced amendments to the government’s national anti-corruption commission bill that will better protect journalists and whistleblowers. The draft law is expected to pass next week, in what will be a seismic step towards improving public integrity in Australia.

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These developments underscore the importance of those who speak up in the public interest. In the public and private sectors, whistleblowers are a central part in bringing wrongdoing to light.

All Australians rely on those who witness wrongdoing to blow the whistle – whether it be alleged war crimes in Afghanistan, misconduct inside the big banks, espionage against Timor-Leste or a misogynist culture at Parliament House. Without transparency, there can be no accountability. Without whistleblowers, there can be no justice.

But this week’s developments must be the beginning, not the end, of a changed approach to whistleblowing under the new Labor government. Australia’s patchwork quilt of whistleblower protection laws has many holes. Avenues for blowing the whistle are complex, protections have proven frail in practice and whistleblowers lack support. A survey of more than 500 whistleblowers found that more than half experienced serious detriment for speaking out; barely a handful subsequently received compensation.

Laws that were enacted to protect and empower whistleblowers are no longer fit for purpose – too often they actively hinder Australians trying to speak up.

This morning, the 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 was launched by Senator David Pocock and independent MP Dr Helen Haines at Parliament House, who were joined by political representatives from across the spectrum to demonstrate that whistleblower protections are a bipartisan issue.

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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. These include 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; and streamlined provisions for when internal disclosures fail and a whistleblower needs to go public via a journalist or member of parliament.

These reforms are drawn from past reviews, inquiries and independent experts. It’s a check list, not a wishlist. Australia once led the world in protecting whistleblowers, becoming only the second nation after the US to introduce these laws in the early 1990s. But through inaction from past governments, we have rapidly fallen behind. The damage was compounded by raids on Australian journalists and the prosecution of whistleblowers – two prosecutions remain ongoing.

As and when these reforms are implemented and the prosecutions dropped, Australia can again lead the world in protecting whistleblowers and upholding integrity.

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The road to reform begins next week, when the attorney general is expected to introduce minor technical changes to the Public Interest Disclosure Act, the law that protects federal public sector whistleblowers. These changes are long overdue: an independent review in 2016 found the experience of whistleblowers under the law was “not a happy one” and recommended a range of reforms. The past government sat on the proposed reforms for six years – Dreyfus is to be commended for acting.

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But the reform agenda must continue with urgency. New and amended laws are needed to fix loopholes and unintended consequences. Institutional change must follow, including what we see as the most consequential recommendation in our roadmap: the establishment of the whistleblower protection authority (an idea recommended by a bipartisan parliamentary committee in 2017 and which Labor took to the 2019 election). And, critically, there must be cultural change in agencies, regulators and government, to recognise whistleblowers for the valuable contribution they make to society.

This week’s developments foreshadow what is to come in the months ahead. If the national anti-corruption commission is to be effective, it will need to give whistleblowers the confidence to expose wrongdoing – just as the brave coal industry whistleblower felt empowered speaking up to Wilkie, thanks to the protection of parliamentary privilege. When it comes to integrity, whistleblowers’ protections must not be an afterthought – they are the main game.

No one should suffer for telling the truth. Whistleblowers matter – and we cannot delay on better protections.

  • Kieran Pender is a senior lawyer at the Human Rights Law Centre and co-author of the new report