Shooting the Messenger: The Need for Greater Whistleblower Protections

By Katie Cooper, a student of Law and Environmental Policy & Management and a volunteer at Rights Resource Network (SA) with a passion for social justice.

‘Australia’s whistleblowers are suffering. They are losing their jobs, being mistreated and, in some cases, even face jail for doing the right thing. What don’t we know because too many Australians are afraid of the consequences of speaking up?’, says Kieran Pender, Senior Lawyer at the Human Rights Law Centre.

Whistleblowers are demonstrably a crucial catalyst for reform; whose protection is vital for safeguarding the integrity of institutions and for promoting the public interest. This is reflected in national sentiment, with 75% of Australians stating that whistleblowers make Australia a better place, according to research by the Australia Institute and the Human Rights Law Centre. However, our nation has a tense relationship with those who blow the whistle as evidenced by the tribulations of David McBride, Witness K, and Bernard Collaery on the national stage. Now, the stage has shifted to the District Court of South Australia whereby the trial of former tax officer, Richard Boyle, is set to begin on 4 October 2022.

The Current State of Whistleblower Protections

Whistleblowers are afforded certain protections under legislation, which is neatly provided by the Corporations Act 2001 (Cth) for the private sector and both the Federal and State Public Interest Disclosure Acts for the public sector. These statutory protections vary from the right of confidentiality to the right to not be terminated from employment, and most saliently, the right to be shielded against prosecution for speaking out. However, these rights are not absolute. Despite the existence of legislative safeguards, 80% of whistleblowers in Australia suffered personal reprisals due to ineffective legal protection and insufficient support. Additionally, no whistleblower has ever been successful in their claim for protection under the Public Interest Disclosure Act 2013 (Cth) since its assent nearly one decade ago. This is significant in light of a 194% increase in whistleblowing reports since 2019 as published by ASIC.

These failures did not go unnoticed in the World Report 2020 by the Human Rights Watch, which documented that ‘broadly drafted national security laws’ are an infringement on the rights owed to whistleblowers. The right referred to by the Human Rights Watch is Article 19 of the Universal Declaration of Human Rights (‘UDHR’) which enshrines the right of ‘freedom of opinion and expression’. This is further preserved in Article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’), of which Australia has ratified. Together, they form the core provision in international human rights law which protects the rights of whistleblowers. In a General Comment by the Human Rights Committee on the ICCPR, this right was deemed to ‘constitute the foundation stone for every free and democratic society’ where ‘restrictions must not be overbroad’.

It is here that the right to freedom of expression and the protection of national security meet in one big, busy intersection which repeatedly falls short of delivering human rights to the general public.

The Story of Richard Boyle

Richard Boyle was a public servant working in the Adelaide branch of the Australian Taxation Office who witnessed unethical tax collection practices which put the health and safety of the community at risk. Boyle, having followed the procedure outlined in the Public Interest Disclosure Act 2013 (Cth), went to the media as a last resort after there was no outcome from his previous disclosures, both internally and with the Ombudsman.

His story highlights that that there is no safe course of action for whistleblowers, even for the ones who follow the legislated protocol. And, using the words of former Senator Rex Patrick, ‘it sends a very strong message to whistleblowers that you are at risk of being prosecuted should you call out misconduct.”

So, how can we ensure the right to freedom of expression is safeguarded for Australians?


A Solution?

The implementation of a Human Rights Framework in South Australia would allow for a paradigm which applies a rights-based lens to whistleblower protections, thereby consolidating the UDHR and ICCPR into legislation. Hence, it would ensure that whistleblowers are viewed as holders of human rights and that the right to freedom of expression is not hindered by rogue restrictions. It would also provide efficient legal pathways for constituents to address unfair or inadequate decision-making or treatment, as is so desperately needed for Richard Boyle. Moreover, it would integrate harmoniously with the work of existing NGOs, such as the Human Rights Law Centre who are in the process of establishing a Whistleblowers’ Legal Service. It is clear that Australians value whistleblowers, and a Human Rights Framework would cement this affirmation into our legal identity.

“Whistleblowers show great courage and strength of character to expose government misconduct and wrongdoing,” said Bill Browne, Senior Researcher at the Australia Institute’s Democracy & Accountability Program.

This should not be forgotten.