This was one of two short pieces written for my Communication Law and Ethics unit. They aren’t anything particularly special, with only 750 words to try explain some current issues in media law, whether the current laws are effective, and the prospects for reform. Still thought it worth sharing given the drought of content on this site recently. This piece discusses whistleblower protection legislation. As a side note, with Labor in power, and Mark Dreyfus’ comments, the Witness K and Bernard Collaery case may see a quick and positive resolution – it will be damning if they neglect it.
The Oxford Dictionary defines a whistleblower as “A source who makes public information about alleged wrongdoing, typically by or within the organization in which they are employed.” All Federal, State and Territory governments have laws designed to protect people who blow the whistle on alleged misconduct or illegal activity within their organisation, whether that is within the public service or the private sector. These laws protect whistleblowers “provided the disclosure is made in ‘good faith’”, preventing them from “being sued for defamation, breach of confidence under their employment contract or for breach of their common law fiduciary duty.” (McLaren et. al., 2019). The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 was passed in 2019, reforming “private sector whistleblower rights, remedies and immunities that originally had been introduced in 2004.” (Chaikin, 2020).
Currently, there are a number of high-profile cases in Australia where whistleblowers are being charged and prosecuted for revealing misconduct or illegal activity they believed ought to be disclosed for the public interest. One is the case involving Witness K and his lawyer Bernard Collaery. It was revealed that in 2004 the Australia Secret Intelligence Service (ASIS) had illegally bugged the offices of officials in Timor-Leste. This activity granted the Howard government the upper hand against one of the poorest nations in the world in negotiations over trade relating to gas and oil projects in the Timor Sea, where there was (at the time) no set maritime border. Witness K plead guilty and received a 3-month suspended sentence, while Collaery proceeded to fight the charges. A trial date had been set for October, but that may shift with a change of government. (Byrne, 2022).
There have been calls for these extremely secretive proceedings to be dropped and for further reform to be implemented to properly defend whistle blowers, particularly those disclosing information related to “national security” agencies. These agencies are protected in a manner other agencies and the private sector are not through section 41 of the Public Interest Disclosure Act 2013, stating “protection can never be given to someone who revealed “intelligence information” to the public.” (Brown, 2019). There is no distinction between information that may be harmful to “national security” or not, with sections 121 and 122 of the Criminal Code referring to “any information with security classification, or, like the PID act, any record “obtained by, or made by or on behalf of” an intelligence agency.” (Brown, 2019).
Another major area for reform is by creating a whistleblower protection authority (WPA). Whether such a body were to be a part of a Federal Independent Commission Against Corruption (ICAC) or elsewhere, the functions of a WPA would “include providing legal advice and assistance to whistleblowers, supporting and protecting whistleblowers through law enforcement investigatory powers, and formally representing whistleblowers in non-criminal matters before courts and tribunals.” (Brown et. al., 2019; Chaikin, 2020). Some benefits of this independent body would be to avoid “potential conflicts of interest”, allow other regulatory bodies to “focus on investigating the underlying misconduct alleged by the whistleblower”, act as “a repository of knowledge and intelligence” for whistleblowers seeking legal protection, and to weed out “vexatious and weak whistleblower claims.” (Chaikin, 2020).
Another potential reform is the introduction of a rewards scheme for whistleblowers, whereby financial incentives are offered for people to disclose misconduct in corporate and financial settings. Such incentive systems operate in the United States. In a Transparency International Australia report, Brown et. al. (2019) put this forward as one of their recommendations for reform to protect whistleblowers and ensure financial benefits. However, others have cautioned against such an approach. A lot of the critiques of such a policy is related more the cultural values in Australia, where whistleblowing is seen as a “public good which is not to be associated with personal gain or private interests.” (Lewis, quoted in Chaikin, 2020). A more concerning argument against rewards schemes is the potential for people to abuse it. With the potential for financial gain, it is feared some may make false or questionable claims, something that practice in the US gives hopeful but uncertain evidence on. (Chaikin, 2020).
References
Brown, A. J. (2019, August 3). From Richard Boyle and Witness K to media raids: it’s time whistleblowers had better protection. The Conversation. https://theconversation.com/from-richard-boyle-and-witness-k-to-media-raids-its-time-whistleblowers-had-better-protection-121555.
Brown, A. J., Ankamah, S., Coghill, K., Graycar, A., Kelly, K., Prenzler, T. & Ransley, J. (2019). Governing for integrity: A blueprint for reform. Transparency International Australia. https://transparency.org.au/governing-for-integrity/.
Byrne, E. (2022, May 26). Bernard Collaery’s trial date set for October, against his wishes, as dispute with federal government drags on. ABC. https://www.abc.net.au/news/2022-05-26/bernard-collaery-to-face-trial-in-october-against-his-wishes/101101332.
Chaikin, D. (2020). Reforming Private Whistleblower Protections – What Next in Australia?. Australian Business Law Review, 48(1), 50-66.
McLaren, K., Kendall, W. & Rook, L. (2019). Would the Singaporean Approach to Whistleblower Protection Laws Work in Australia? Australasian accounting, business & finance journal, 13(1), 90-108.
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