NFP legal eagles build a stronger nest for whistleblowers

Individuals brave enough to speak out against wrongdoing are often left unsupported, alone and vilified.

Not-for-profit legal service the Human Rights Law Centre hopes to change all that with the launch of Australia’s first dedicated, specialist legal service for whistleblowers.

The Whistleblower Project provides free legal support to help people calling out dodgy behaviour, stressing that:

• they are protected under the law from reprisal
• the wrongdoing they disclose is dealt with promptly and fairly
• they have an advocate who will protect their rights.

The initiative follows several high-profile whistleblower cases in recent years, ranging from accusations of Australian soldiers committing war crimes in Afghanistan to misogynistic behaviour in Parliament House.

The Human Rights Law Centre helped advocate for Canberra lawyer and former ACT Attorney-General Bernard Collaery ­– a critic of Australia’s past activity in Timor-Leste – with the case dropped in July 2022.

The Centre has also advised to Richard Boyle, who spoke out about alleged misconduct in the Australian Taxation Office.

Centre CEO Caitlin Reiger described the launch of the Whistleblower Project as a landmark moment for whistleblower protections in Australia.

“While there is so much that Australians know thanks to the courage of individual whistleblowers, we need to be concerned about what we don’t know - and what stories may never be told - because people are too afraid and unsupported in speaking up,” she said.

“People who courageously speak up when they see something wrong are vital to ending cultures of impunity. They should be recognised as human rights defenders, not punished.”

Supported by the Victorian Legal Services Board’s Grants Program, Mannifera, the McKinnon Family Foundation and the ACME Foundation, the Whistleblower project was formally launched by renowned anti-corruption campaigner Tony Fitzgerald.

The former judge presided over the landmark 1989 inquiry into Queensland police corruption, which laid the groundwork for the introduction of Australia’s first whistleblower protections in 1990.

In a passionate speech, Mr Fitzgerald described the Whistleblower Project as an important addition to Australia’s legal landscape.

“Fortunately, there are people who speak out when they know or suspect that laws are being broken, or superiors are behaving unethically or there are dangers to the community or consumers or stakeholders which are not being addressed,” he said.

“The Project being launched today is a new step in encouraging and supporting these whistleblowers.”

Mr Fitzgerald said without whistleblowers, much more misconduct would pass unnoticed.

“For example, it is now commonplace in inquiries and royal commissions and the work of integrity bodies for internal witnesses to be a vital source of information concerning wrongdoing.”

Mr Fitzgerald said the importance of whistleblowers is increasingly recognised by laws which seek to remove or reduce legal risks for people who speak up.

Multiple research efforts have confirmed however that taking a stand against wrongdoing is not for the feint hearted, with those that do often subsequently let down by imperfect laws.

A Griffith University report titled Protecting Australia's Whistleblowers: The Federal Roadmap, revealed that 29% of whistleblowers acting in the public interest experienced harassment, dismissal, or other serious adverse consequences.

Almost half received no legal or practical remedy to address unjust outcomes and only 6% received compensation.

A separate report The Cost of Courage by the Human Rights Law Centre, looked at the success rate of whistleblower protection claims filed under current legislation.

It revealed that out of 78 known judgements arrived at by courts applying whistleblower protection laws, less than 10 per cent have resulted in a substantive, merits-based judgment in favour of the whistleblower.

“Law reform is obviously essential,” said Mr Fitzgerald.

He nominated the following actions that were still needed:

• Recognition that while most agree about the importance of protecting whistleblowers in theory, in practice protection was often subordinated to political secrecy.
• There should be consolidation of conflicting and often confusing whistleblower protection laws across the country.

He said the importance of establishing the whistleblower legal service could not be overstated. He lauded the value of whistleblower protection, operated on a not-for-profit basis, and employing public interest criteria to offer free legal support to whistleblowers.

“Ordinary people cannot effectively access the protections which theoretically exist, without professional legal support,” Mr Fitzgerald said.

“Affording legal protection to whistleblowers is not just about protecting individual rights. It is also about protecting the interests of the community.”

Mr Fitzgerald said there were positive signs whistleblower protection was being taken seriously, citing a commitment by federal Attorney-General, Mark Dreyfus to update the Public Interest Disclosure Act which contains whistleblower protections for federal public servants.

Despite that, Australia’s federal whistleblowing laws still had “fundamental flaws”, he said.

“This problem will continue to exist until governments are prepared to recalibrate the relationship between self-interest and the public interest,” said Mr Fitzgerald.

“The new Human Rights Law Centre Whistleblower Project is a major step in making Australia a more open and just society in the interests of all of us.”

More information:

Human Rights Law Centre

Changes to whistleblower laws: what NFPs need to know

Download free Whistleblower Policy template

Whistleblower protections for not-for-profit organisations - ASIC