Experts say Senator Nick Xenophon’s deal for more whistleblower protections was long overdue, labeling Australia’s current laws as “hopeless”.
In exchange for voting to create the Registered Organisations Commission, the Xenophon Team and Senator Derryn Hinch secured, very early on Tuesday morning, amendments that will protect workers who report union misconduct.
As part of the deal, the government promised to establish a parliamentary inquiry, and create an expert advisory committee, to investigate extending these protections to all whistleblowers.
“If passed, we will see Australia go from some of the worst whistleblower protection laws in the world to arguably the best,” Mr Xenophon said.
‘Registered organisations’ are unions and employer associations registered with the Fair Work Commission. The government says the Registered Organisations Commission will “stamp out union thuggery”.
‘Existing whistleblower laws are hopeless’
Josh Bornstein, at leading class action law firm Maurice Blackburn, said current whistleblower laws have failed.
“The laws are hopeless and have been in place for 12 years. They’re not used and they are ineffective. For example, they wouldn’t protect a 7-Eleven whistleblower. There is a fundamental major flaw here. Our culture is one where we don’t reward a whistleblower, we punish them,” Mr Bornstein told The New Daily.
“Whistleblowers invariably lose their careers, sometimes marriages collapse, they lose their homes, they are vilified and often it is a David and Goliath situation.”
Under federal law, current and former public servants are protected by the Public Interest Disclosure Act 2013 – but not for disclosures relating to politicians, political staffers and judges.
Protections for public sector workers contained in the Corporations Act 2001 are “ill-defined”, anonymity is not guaranteed, and they only cover disclosures of breaches of corporations law, according to Maurice Blackburn.
The law firm wants Australia to follow the example of the US, where whistleblowers can remain anonymous and continue to work for their employer while providing information to a government regulator.
For more information, seek legal advice.
‘Crucial to expose wrongdoing in the public sector’
Sydney-based barrister Vera Culkoff, who has more than 20 years’ experience in class actions, said any increase in protections is a step forward, because whistleblowers are crucial to correcting wrongs in the corporate world.
“It is the force of legislation that will bring about an evolution for change in society. At the moment, the corporate mentality is not, ‘Wow, this is a brave and honest whistleblower and we would love to have them on our team’. Rather, it’s ‘why would we expose our organisation to that risk?’,” Ms Culkoff told The New Daily.
“If you are labelled a whistleblower, your prospects for future work are jeopardised. We need the legislation to become part of our normal work culture; this will have a critical role.”
Whistleblower Australia president Cynthia Kardell said Senator Xenophon and his team acted because the current laws do not work.
“We have pushed for change, and we are critical of existing system. The net effect is to fine and constrict the whistleblower and bring about compliance, rather than keeping them safe in jobs.”
But if the changes in 2017 do not protect the identity of whistleblowers, they will be in vain, Ms Kardell said.
“The only way a whistleblower can get a good result and keep their employment and stay safe is to remain anonymous.”
The Law Council of Australia praised the deal, while the ACTU attacked the creation of the Registered Organisations Commission as an attempt to hobble the union movement.