Real Australians understand the value of whistleblowers, but when it comes to the crunch, our leaders are slow on reform (2024)

Whether by accident or design, in the same week the government made submissions to its whistleblower reform inquiry public, World Press Freedom Day reminded everyone of the importance of free, fair and informed societies — something whistleblowers play a huge role in.

In updated rankings published by Reporters Without Borders on Friday, Australia ranked 39th in the world for press freedom — dropping 12 places in just 12 months.

That was last week.

This week opens with ex-military lawyer David McBride's sentencing after he pleaded guilty in November to leaking sensitive classified military information to the ABC that formed the basis of the Afghan Files because, he said, the law as it stood for whistleblowers left him with no other choice.

The next whistleblower to stand trial is Australian Tax Office (ATO) whistleblower Richard Boyle in September, after he exposed a disturbing culture within the organisation in 2017, which led to a series of reforms.

Both men have spent years waiting for judgment day, unable to work and having to battle financial issues, including funding the legal battles being waged by the Commonwealth.

Reform promises starting to look a little hollow

Against this backdrop and a growing public interest in whistleblower protections, the government promised to make whistleblower reforms a priority.

In November last year, the same week McBride pleaded guilty, Attorney-General Mark Dreyfus released a consultation paper on whistleblower reform, specifically on how to improve the effectiveness of the Public Interest Disclosure Act for reporting potential wrongdoing, as well as whether there was a was a need to establish a separate Whistleblower Protection Authority or appoint a dedicated whistleblower commissioner.

But that priority is starting to look a little hollow and there's a chance it might not happen until after the next election — unless the government quickens its pace.

While governments like to be seen to be supporters of whistleblowers, including holding inquiries, issuing press releases and making promises ahead of elections, when it comes to the crunch, perception and reality are two different things and tough talk often becomes hostage to excruciating long delays or watered down reforms.

For instance, a proposal to set up a Whistleblower Protection Authority was first raised by the Greens in the early 1990s at a Senate committee into whistleblowing. It resurfaced in 2017 at another parliamentary inquiry into whistleblowing and again in 2019 when Labor promised that if it was elected it would establish such an authority and also set up a whistleblower rewards scheme.

"Labor doesn't want to see good people punished for doing the right thing," the then-shadow attorney-general Mark Dreyfus said in the 2019 press release.

Five years on, a whistleblower authority and commissioner is once again being discussed.

We got a National Anti-Corruption Commission, but is it enough?

The overriding theme of some of the submissions released last week is that our whistleblowing protection laws are not fit for purpose and need updating. Some call for a separate independent agency to help fill the gaps and encourage more whistleblowing.

Australians have had a gutful of corruption in the public and private sector and understand the crucial role of whistleblowers. Sports rorts, Robodebt … the list goes on.

It is why they backed a federal anti-corruption agency at the last election, something both sides of politics had resisted in one way or another for years.

The new National Anti-Corruption Commission (NACC) was born in late 2022, but it didn't include a whistleblower protection commissioner — something crossbenchers had pushed for in their anti-corruption bills introduced in 2018 and 2020.

While the NACC includes some protections of whistleblowers, its latest submission highlights some glaring shortcomings.

Released last week, the NACC says: "[It] makes this submission given the importance of whistleblowers in combating corruption, and thus our interest in ensuring that anyone who reports suspected corrupt conduct to the Commission or elsewhere has appropriate protection from liability and reprisals. Such protections facilitate, support and encourage the reporting of corrupt conduct by those most likely to have information about it."

It says to date, 77 per cent of referrals received by the NACC have been assessed as not raising a corruption issue. "This raises a question whether a referral to the commission which does not in fact raise a corruption issue attracts the protections," it says.

"As such, it is uncertain whether Part 4 of the NACC Act provides protection to persons who make referrals which do not in fact meet the threshold in the definition of 'corruption issue' in the Act. This could mean that a disclosure which does not in fact raise a corruption issue may not attract the protections," the submission says.

It says the NACC Act doesn't provide protection for communications a whistleblower may have had with professional advisers, either before, during or after making a disclosure, for advice or support.

"The commission recommends that the NACC Act be amended so that disclosures to professional advisers are protected provided there is a relationship of confidentiality between the discloser and the adviser, and the disclosure is made under that relationship for the purpose of obtaining advice or assistance in connection with the disclosure or the disclosure process."

There are other gaps that need to be addressed.

Real Australians understand the value of whistleblowers, but when it comes to the crunch, our leaders are slow on reform (1)

And when it comes to the elephant in the room of addressing proper whistleblower reforms, such as introducing a rewards scheme for whistleblowers and a standalone whistleblower protection agency, the NACC squibs.

On rewards, it says it is "disinclined to be supportive of a rewards scheme".

And as far as a separate protection agency is concerned, while it concedes a separate agency could serve as a "first port of call" for potential whistleblowers given "the current fragmented legislative approach to protected reporting at the Commonwealth level", it then backtracks and says it "sees force" in a recent review of Queensland's Public interest Disclosure Act, which was not "persuaded of the efficacy of a standalone body, and accepted the need for caution against a new body in an already crowded integrity landscape — an observation that applies equally to the Commonwealth".

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Like the Queensland review, the NACC says it has concerns about "potential conflicts of interest in housing all the relevant functions, including provision of advice and support, in one agency, and questions whether the number of cases justifies the requisite resourcing to establish such an agency".

It believes similar benefits could be gained by offering more support for whistleblowers.

It's an attitude that will provide a comfortable fig leaf to those politicians and bureaucrats who want to be seen backing whistleblower protections, but not too much.

For potential whistleblowers and those who work with whistleblowers, or have been advocating for change, it is a disappointing stance from an entity formed to investigate corruption, part of which would never come to light without whistleblowers coming forward.

As Kieran Pender, from the Human Rights Law Centre posted on X on Friday:

"Today is World Press Freedom Day. It is a reminder of the importance of journalism to our democracy. But journalists cannot do their job without whistleblowers … Prosecuting whistleblowers who expose government wrongdoing is undemocratic and undermines press freedom. The Albanese government should stop prosecuting whistleblowers and instead get on with fixing whistleblowing laws and establishing a whistleblower protection authority."

Real Australians understand the value of whistleblowers, but when it comes to the crunch, our leaders are slow on reform (2024)
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