Australia’s federal whistleblowing laws have not successfully protected a single person since their inception, an analysis of available court records suggests.
The Human Rights Law Centre (HRLC) released a report on Tuesday examining 78 court rulings in 70 separate cases in which whistleblowers sought protection under federal and state whistleblowing regimes.
The report found there had “not been a single successful case … brought by a whistleblower” under different federal laws designed to protect public or private sector employees who speak out about wrongdoing.
The report found just 15 cases at a state or territory level where a whistleblower or a party acting for a whistleblower had been successful – a rate of about one in five.
One of those successful cases saw a whistleblower awarded just $5,000 for suffering reprisals following a disclosure. Four involved success in preventing the disclosure of a whistleblower’s identity, and two related to the ability of whistleblowers to seek access to documents or information.
The unsuccessful cases showed cases often failed due to an inability to causally link an act of reprisal to a whistleblower’s decision to speak out. Whistleblowers were also self-represented in 21 of the unsuccessful cases, which suggests “access to justice is an acute issue”.
The report only searched available judgments on legal databases, meaning it cannot be considered exhaustive and could not take into account negotiated settlements, the details of which are usually confidential.
But author Kieran Pender* said despite the limitations the findings clearly revealed the practical problems faced by whistleblowers relying on the protections available at a federal and state level.
“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,” Pender said in the report.
“Australia’s whistleblower protections are too often paper shields. That must change.”
The Labor government is currently pursuing reforms to its Public Interest Disclosure Act, which is designed to protect government employees. The act commenced in 2014.
The first tranche of Labor’s reforms passed in June and further reforms are pending.
The HRLC, which last week launched its own whistleblower legal support service, has made a series of recommendations to improve whistleblowing laws across the country, including by introducing a reverse onus on employers to prevent detrimental acts against a whistleblower, something which already exists in federal corporate whistleblowing protections.
“All Australian whistleblowing laws should contain these provisions, drafted in a consistent, user-friendly way,” the report says.
The report also recommends that whistleblowing laws be enforced by dedicated regulatory bodies and calls for whistleblower protection authorities to be established in each jurisdiction to advise and protect individuals.
“Such a body would oversee agencies as they investigate wrongdoing alleged by whistleblowers, investigate allegations of reprisals or other detrimental treatment of whistleblowers, take enforcement action in cases of suspected breaches of whistleblowing law, manage alternative dispute resolution for whistleblower complaints, and intervene in important whistleblower cases,” the report said.
The federal government is planning to consult on the establishment of such a body and has previously promised to release a discussion paper to kickstart a reform process. The discussion paper has not yet been released.
The HRLC also wants a dedicated whistleblowing office that sits within federal parliament, which would train MPs and senators in dealing with whistleblowers. Such a body already exists in the United States.
It recommends creating a public funding scheme to enable whistleblowers to be properly represented in legal proceedings, a reward scheme to incentivise public interest whistleblowing, and laws allowing whistleblowers who are aware of fraud in government contracting to commence proceedings on behalf of the government. The latter two proposals are modelled on schemes already operating in the US.
Independent senator David Pocock, who had to use parliamentary privilege to make public a Santos whistleblower’s complaint about dolphin kills earlier this year, said the report was damning.
“When whistleblowers speak up, we all benefit,” Pocock said. “Yet our laws are not encouraging people to speak up when they see corruption, misconduct and maladministration.
“Whistleblowers have approached me to seek the protection of my office in raising concerns on a range of issues. This tells me that the system is broken. Parliamentary privilege should be a last resort, and yet my colleagues and I are dealing with people who feel unable to call out bad behaviour through the usual legal channels.”
The attorney general, Mark Dreyfus, was approached for a response.
*Kieran Pender is a freelance writer for Guardian Australia
