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.
