Australia has one of the world’s better whistleblower protection frameworks, but much of the G20 have failed to implement a commitment to better protect people exposing wrongdoing, a major new international survey has found.
The Whistleblower Protection Laws in G20 Countries: Priorities for Action report has been assembled by researchers from Blueprint for Free Speech, the University of Melbourne, Griffith University and Transparency International Australia. It looks at whistleblower laws across the G20 in the wake of the G20’s 2010 commitment, reiterated in 2012, to:
“… enact and implement whistleblower protection rules, drawing on the principles developed in the [Anti-Corruption] Working Group … to ensure that those reporting on corruption, including journalists, can exercise their function without fear of any harassment or threat or of private or government legal action for reporting in good faith.”
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The report, using 14 criteria to assess laws relating to whistleblowers across the world, shows the whistleblower protection legislation in Australia (considerably strengthened by Labor’s Mark Dreyfus through the Public Interest Disclosure Act 2013) are, along with those of the United States, the best in the G20 when it comes to public sector whistleblowers. Canada and South Korea also have strong legislative frameworks. Saudi Arabia, Mexico and Russia all score worst, with Italy the worst of Western countries.
A persistent problem across most jurisdictions relates to the lack of mechanisms for public sector whistleblowers to make disclosures anonymously, with 15 of the G20 countries scoring the lowest possible score for that. Most countries also failed on measures to ensure transparency and accountability for whistleblower mechanisms, such as annual reporting and the ability to override confidentiality agreements in settlements.
“The two countries that rank best in protection for public sector whistleblowers, the United States and Australia, are both currently engaged in a ferocious war on intelligence whistleblowers …”
But while Australia scored well on public sector mechanisms, like most countries, we perform poorly on measures to protect private sector whistleblowers, and lag economies like Japan, the UK, France, South Africa and even China. In Australia’s private sector protections, the report notes, “the scope of wrongdoing covered is ill-defined, anonymous complaints are not protected, there are no requirements for internal company procedures, compensation rights are ill-defined, and there is no oversight agency responsible for whistleblower protection”. We also partly rely on the inept and underfunded Australian Securities and Investments Commission to protect private sector whistleblowers under the Corporations Act. The report also noted the differences between the federal public sector protections and those at the state level, and a lack of protection afforded to intelligence whistleblowers in Australia.
Indeed, the two countries that rank best in protection for public sector whistleblowers, the United States and Australia, are both currently engaged in a ferocious war on intelligence whistleblowers, over-prosecuting and seeking to jail former intelligence officials who have revealed corruption, large-scale incompetence and unethical behaviour in agencies that are subject to no public oversight. The Abbott government is currently seeking to prosecute both an intelligence whistleblower and his lawyer who revealed the efforts of the Australian Security Intelligence Service to bug the East Timorese cabinet in an effort to benefit an Australian resources company, while the Obama administration has launched a series of legal attacks on whistleblowers and journalists, frequently using espionage charges, over national security scandals such as the CIA’s torture program.
“It is a great irony that despite the US and Australia scoring so well in respect of almost all areas that they fall short in protecting national security whistleblowers,” Simon Wolfe, head of research at the NGO Blueprint for Free Speech, told Crikey. “This is despite the fact that the national security sector is, in public life, one of the most secretive and powerful. Corruption can happen in all areas of government, including in the national security sector. In many countries, the US and Australia included, there is a gap between the legislative regime and the implementation of same.”
Wolfe argues that legislative frameworks for whistleblower protection need to be coupled with effective implementation. “The UK, for example, has strong whistleblower protection rights, but it is expensive to enforce them. This is down to the legislative regime not reflecting the imbalance between the person seeking to enforce those rights [the whistleblower] and those seeking to limit fallout from harassment claims [the employer]. As is the case in any civil litigation, incentives exist for the better funded party to draw out the claim.”
The report argues the lack of whistleblower protections create a significant economic cost by perpetuating “government and corporate misconduct, leading to wasted taxpayer money, unsafe consumer products, public health threats, environmental crimes and human rights violations”.