Push to strengthen whistleblower protections after laws left to become ‘global embarrassment’

This article features Government Accountability Project’s Legal Director, Tom Devine, and was originally published here.

Australia’s whistleblower laws were once “an outstanding vision” when first introduced a decade ago but have been left to become a “global embarrassment”, one of the world’s leading whistleblower lawyers has warned.

Tom Devine, who has worked on reforming US whistleblower protections for decades, described Australia’s supposed shield for bureaucrats exposing potential wrongdoing as in dire need of fine-tuning.

The esteemed legal director’s comments follow the release of a new research report outlining the steps the federal government should take in order to bring the country’s whistleblowing protections in line with the US and the European Union.

The Albanese government is hoping to pass its federal anti-corruption body before the end of the year, promising to introduce a suite of updated measures to protect whistleblowers coming forward to the watchdog.

Mr Devine said while the intention of the laws were “unsurpassed globally”, the technical legal details meant it was more like “driving down a road with more potholes than pavement”.

“The Public Interest Disclosure Act, when originally passed was an outstanding vision in terms of checking the boxes and endorsing the necessary principles for whistleblower protection,” he said.

“But in terms of results, it’s a global embarrassment and that’s because the details are devilish.”

Attorney-General Mark Dreyfus last week pledged to introduce immediate improvements to the act, which would be in place by the time the anti-corruption watchdog is operational by around mid-2023.

It’s expected a broader review being undertaken by the Attorney-General’s Department with further recommendations will be handed to Mr Dreyfus before Christmas and could be publicly released in the coming months.

Mr Dreyfus first introduced the act while he was in the role in 2013 but has long said the rules were no longer fit for purpose.

The first law officer is under pressure by integrity experts and lawyers to drop two high-profile cases against Army whistleblower David McBride and former tax office employee Richard Boyle.

He has continued to decline intervening in the two matters despite earlier stepping in over the prosecution of ACT lawyer Bernard Collaery.

The whistleblower protections roadmap, co-authored by Human Rights Law Centre lawyer Kieran Pender and transparency expert Professor AJ Brown, offers a 12-step “checklist” based on landmark research and reviews.

Among the recommendations is a push to establish a whistleblower protection authority to oversee and enforce safeguards and ensure easier, consistent access to remedies.

“The government’s commitment to initial Public Interest Disclosure Act reform is a positive first step, but as our roadmap shows there is much more to be done,” Mr Pender said.

“Improving the law and providing practical support for whistleblowers must be top priorities for the government in the months ahead.”

Research undertaken last year revealed more than half of public interest whistleblowers experienced personal and professional detriment after coming forward, including stress, isolation or ostracism from colleagues and harassment or intimidation from colleagues or managers.

Mr Devine said it was essential strong whistleblower laws were in place to instil confidence in would-be disclosers.

“Most people are pretty courageous – they’re willing to fight and die to defend their country,” he said.

“But if the only thing that’s gonna happen when you beat your head against the bureaucratic wall is that you crack your own skull, then you’re going to need to have a martyr complex to blow the whistle.”

Mr Devine said it would also improve public trust in the upcoming anti-corruption commission.

“Get some results, some early successes and results that convince would-be whistleblowers who are on the fence that this is worth the risk,” he said.