Amid all the recent chicanery at Parliament House, it would have been easy to overlook an important development for whistleblowers with the passage of laws to protect those who speak out on private-sector wrongdoing. Likewise in Brussels, with all eyes on Brexit, the agreement of landmark, European Union-wide whistleblower protections went largely unremarked.
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But these dual developments represent the continuation of an important shift in the treatment of whistleblowers. Long derided as snitches – to quote a former police commissioner from the 1990s: "nobody in Australia much likes whistleblowers" – societies across the globe are recognising the crucial public function served by those who expose corruption and misfeasance.
The new Australian laws are the outcome of a protracted process that began with a joint parliamentary committee report published in September 2017. That document recognised the wholesale inadequacies of extant protections for private-sector whistleblowers in the Corporations Act and recommended ambitious reforms. These were ultimately watered down as parliamentary machinations took their toll, with leading Australian authority Professor A. J. Brown describing the amendments at one point as "more a sideways than a forward step on key issues".
Nevertheless, the changes are significant. After the laws were finally passed in February this year, even Brown hailed the "breakthrough" for whistleblowers. The laws expand the range of subject matters for protected disclosures, permit anonymous whistleblowing and require large companies to introduce mandatory whistleblowing policies. Crucially, they also reverse the onus of proof in cases where a whistleblower seeks compensation after suffering reprisals.
Meanwhile, the EU's three law-making bodies – the European Commission, European Parliament and European Council – agreed in March on the terms of a directive that will require all EU member states to implement harmonised whistleblower-protection laws within two years. While the minutiae is unimportant for this column's purposes, the directive is broadly in line with international best practice and will see the EU become a world leader after decades of lagging behind.
These developments should be heartily welcomed, despite some shortcomings. We have long championed the cause of whistleblowers and the need for law reform in this area. But the recent Australian reforms left one group behind: federal public servants.
Notwithstanding the sentiments of the police commissioner mentioned above, Australia was once an early adopter of whistleblower protections for public servants. South Australia passed its Whistleblower Protection Act in 1993; for context, Britain's laws – the first in the EU – did not come into being until 1998. Over the next two decades, every Australian state and territory passed laws to protect public-sector whistleblowers, culminating in 2013 with the Public Interest Disclosure Act at the federal level.
But the positive effect of that long-awaited law has been limited. An independent review of the statute by Philip Moss in mid-2016 noted: "The experience of whistleblowers under the PID Act is not a happy one ... The experience of agencies is that the PID Act is hard to apply." In other words, the law is not working. At the coalface, as advisers to public-sector whistleblowers, we have had similar experiences.
Which is why the government's failure to implement Moss's extensive list of recommendations is disappointing. The act was left untouched by the recently passed amendments, despite the joint parliamentary inquiry stressing the need for harmonisation and recommending it be "redrafted in parallel with the [new] private sector act". At the time of writing, there have been no hints from Parliament that revisions to the public-sector protections are forthcoming.
Reform is needed. As Moss articulated in 33 recommendations across a 71-page report, the Public Interest Disclosure Act has significant shortcomings. Public-sector whistleblowing is arguably the most important form of whistleblowing, given the importance of democratic accountability and efficient public administration to the lives of all Australians.
As the government passed draconian changes last year to official secrecy laws, functioning whistleblowing channels and protections are more urgent than ever. As we wrote at the time, those reforms put "the cart before the horse ... Cracking down on unauthorised disclosure before a robust and effective program for authorised disclosure of official information is illogical at best, and shows a barely disguised contempt for whistleblowers at worst". Tax Office whistleblower Richard Boyle now faces 161 years in jail for disclosing what he saw as unfair debt collection practices to the media.
There is some light on the horizon. In February, Bill Shorten pledged further whistleblower law reform if Labor is elected. "Whistleblowers should be treated the same, regardless of the type of workplace they're in," the opposition leader said. "But, right now, our whistleblower laws are opaque and inconsistent."
The proof of the pudding, as ever, will be in the eating. Labor has also proposed financially incentivising whistleblowers, an approach hailed for its effectiveness in the United States but which has detractors elsewhere. Without further details about how such a scheme would work, it is premature to judge it.
Recent developments in Australia and Europe bode well for would-be whistleblowers. But the lack of sophisticated protections for Australia's federal public servants is a troubling gap. Whichever government takes power after the next election, public-sector whistleblower law reform should be at the top of the agenda.
John Wilson is the managing legal director of BAL Lawyers and an accredited specialist in industrial relations and employment law. Kieran Pender is a visiting fellow at the ANU's Centre for international and public law. These views are their own.
