Australia’s whistleblower laws protect the state, not the truth

From Bernard Collaery to David McBride, the evidence shows Australia’s whistleblower framework penalizes whistleblowing while preserving executive power, writes Nigel Carney.

The assumption that spoils everything

Reflecting on his own prosecution and making an indirect reference The trial of Witness K, Bernard Collaery He made a point that got to the heart of Australia’s whistleblowing dilemma.

Australian courts operate on a fundamental assumption: that the executive arm of government will always act legally, ethically, morally and in the public interest. This assumption is not merely philosophical; It promotes judicial deference, legal interpretation, confidentiality regimes, and limits on what can be tested in open court.

This assumption becomes untenable when it is the executive branch itself that is at fault.

In the case of East Timor espionage, the Australian government authorized covert actions that violated the sovereignty and foreign rights of a newly independent nation while also benefiting corporate interests. Later, when these actions were revealed, it was not the decision makers who were placed in the dock, but those who exposed them.

This is the dilemma at the heart of Australia’s whistleblowing framework. Laws designed to protect disclosure presuppose a well-intentioned state. Courts assume a lawful administrator. Oversight mechanisms assume ethical governance. But where the executive is influenced by corporate power, foreign interests, or strategic interests, these assumptions break down, and with them the protections.

In such cases, legality becomes executive, ethics becomes contingent, and whatever the executive says becomes the public good. Those who report are not protected by the system; they are processed by him.

This is not a failure of drafting. This is a failure of assumption.

As Collaery warned class of 2022:

“There is no greater danger to the rule of law than the executive branch acting unlawfully and then using secrecy to shield itself from scrutiny.”

His prosecution and the pressure surrounding it make clear how fragile legal safeguards become when the state seeks to protect itself rather than be held accountable.

Evidence

David McBrideformer army lawyer imprisoned for leaking classified material exposing alleged war crimes he said clearly:

“We have whistleblower protection laws, but they are scams. They don’t work… whistleblowers like me… go to jail as if we were criminals.”

Richard BoyleExposing unethical debt collection at the Australian Taxation Office, said Walkley Awards audience:

“I am personally broken physically, mentally and financially.”

These are not anomalies. These are the predictable consequences of a system designed to process whistleblowers rather than protect them. The question is not whether these cases are typical or not, but whether the system works. The evidence shows that it is not.

The incentive gap: Economics and ethics

Australia’s reporting framework is fragmented, technical and unforgiving. The question is whether the system can be said to realistically work as designed.

The contrast with the United States is instructive; Not because the US system is morally superior, but because it operates on completely different premises.

Under the U.S. Securities and Exchange Commission (SEC) Whistleblowing ProgramIndividuals whose information leads to sanctions exceeding US$1 million (AU$1.4 million) may receive between 10 and 30 percent of the amount collected. SEC in fiscal year 2024 rewarded More than US$255 million (AU$366.8 million) to 47 whistleblowers.

Since the program’s inception in 2011, more than US$2.2 billion (AU$3.17 billion) has been paid to 444 people.

These are transactional payments. The SEC views whistleblowers as providers of information in a regulatory marketplace. Data is available because incentives are tied to implementation results. The program produces measurable outputs: notices received, cases filed, sanctions imposed, and awards paid.

False Claims Act It works with similar logic. Private individuals may submit requests on behalf of the U.S. Government. qui tam lawsuits. If successful, they receive 15 to 30 percent of the recovery. Record 979 in fiscal year 2024 qui tam lawsuits were filed. Settlements and judgments from cases resolved that year exceeded US$2.4 billion (AU$3.4 billion); whistleblowers received more than US$400 million (AU$575.6 million). Since then qui tam provisions were modernized in 1986, with total recoveries exceeding US$78 billion (AU$112 billion).

This does not reward infidelity. This is outsourcing control to insiders in places where the state lacks visibility.

The U.S. Department of Justice has launched a new whistleblower reward initiative targeting corporate crimes in 2024. Incentive-based whistleblowing is becoming widespread. US regulators view the rewards as a practical enforcement tool, not an ethical compromise.

Australia has openly considered and rejected financial incentives for whistleblowers. Parliamentary committee materials acknowledge US-style reward systems but frame objections around ethical concerns and fears of vexatious allegations.

The unresolved issue is that if incentives are rejected, an alternative mechanism must still exist that produces disclosure, protects whistleblowers, enables enforcement, and produces usable data.

Australia did not create this alternative.

data illusion

It is no coincidence that reliable, end-to-end data on whistleblower outcomes is lacking in Australia. It is structural.

Nongovernmental organizations play a vital role in advocacy and support, but they do not control employer disclosure channels, regulatory intake points, or conciliation processes. Much of the whistleblowing activity is lost in confidential agreements protected by nondisclosure agreements. There is no comprehensive picture of what happens to whistleblowers after they come forward.

The system is designed to make the results invisible. Public records usually end with the application, not the outcome. Harm, retaliation, and deterrence effects are not captured statistically.

Australia has reports, but they are isolated. The Commonwealth Ombudsman publishes annual reports on the federal public interest disclosure plan. Australian Securities and Investments Commission (ASIC) investigates major companies over whistleblower disclosures. What is missing is longitudinal analysis of cross-regime consolidation, outcome tracking, and whistleblower welfare or retaliation.

While the US SEC can report exactly how many notices it received, how many led to enforcement actions, what sanctions were lifted and what awards were paid, Australia cannot. The public cannot evaluate whether existing protections deter retaliation, whether regulatory interventions are timely, or whether whistleblowers who follow designated pathways are actually better off than those who do not.

This lack of data hinders accountability. It hinders evaluation. It blocks reforms based on evidence rather than anecdote.

Invisibility is a feature, not a bug. Agreements with confidentiality clauses protect organizations, not whistleblowers. Fragmented reporting allows each regulator to claim modest success without anyone providing the full picture of systemic failure.

Reform without solution

Whistleblower Protection Power Bill It represented an admission that the system had failed. Introduced by MP in February 2025 Andrew WilkieWith a parallel Senate version of senators David Pocock And Jacqui LambieThe bills proposed an independent statutory body with a whistleblower protection commissioner to support whistleblowers, investigate retaliation, provide legal assistance, and exercise jurisdiction over all federal whistleblower protection laws.

The Senate referred the bill to the committee for review. The committee, consisting mostly of government and Coalition members, recommended that the Senate not pass the bill on 31 August 2025. committee chairman jana stewart He stated that it would be prudent to allow the government to complete phase 2 Public Interest Disclosure Act reforms Before considering structural changes.

Greens Senator David Shobridgeopponent pointed out The imprisonment of David McBride and the prosecution of Richard Boyle, Witness K and Bernard Collaery are proof that the system needs radical reform:

You shouldn’t risk your job, your family, your freedom, or your mental health just because you tell the truth.

The imprisonment of David McBride and the prosecution of Richard Boyle, Witness X and Bernard Collaery underscore exactly why we need both a whistleblower commission and wider legal reform.

The Committee’s refusal to support the Bill reveals a similar pattern: a recognition that the system has failed and a failure to translate this recognition into lasting institutional reform.