Exposing wrongdoing not as easy as blowing the whistle
Australians looking to expose abuse must navigate a complex legal minefield, with major developments changing the way people report.
Whistleblowers can use information revealed in legal discovery, when both parties to a case disclose confidential documents to the other as evidence in a lawsuit, to make public interest disclosures in the latest legal precedent set in 2025.
A public interest whistleblower is a protected complaint under whistleblower laws, which protect one from defamation, violation of nondisclosure agreements, retaliation, or criminal prosecution.
The Human Rights Law Center’s intervention in an ABC whistleblower’s court fight with the public broadcaster determined that whistleblower immunities should be extended to confidential court documents when making a public interest statement to expose wrongdoing.
The centre’s acting senior solicitor, Anneliese Cooper, welcomed the result as a positive step.
“But this new and technical decision demonstrates the challenges whistleblowers face in navigating the complex whistleblowing laws in Australia,” he said.
“Many whistleblowers in Australia face reprisals due to loopholes, exceptions and mandatory requirements in Australia’s whistleblowing laws.”
He called on the federal government to strengthen whistleblower protections, including an independent whistleblower protection authority.
“Whistleblowers are key to accountability and transparency in our institutions. They should be protected, not punished, for doing the right thing and speaking out in the public interest,” the senior lawyer said.
This follows a separate legal ruling that found whistleblowers who collect evidence ahead of a public interest statement are not protected by immunity clauses in the law.
Essentially, immunities do not kick in until an explanation is made, and therefore individuals can be prosecuted for the actions that gave rise to their complaints.
Transparency advocates argued that the decision in the Richard Boyle case had a chilling effect on whistleblowing because it prevented people from gathering evidence to support their allegations of wrongdoing.
Mr Boyle pleaded guilty to charges of disclosing protected information, recording protected information and recording private conversations following a protracted court battle following the Australian Taxation Office’s revelations of predatory collection practices.
He was spared from prison after making a deal with prosecutors.
The attorney general outlined a second tranche of whistleblower protection reforms, including proposals to establish an independent ombudsman to support complainants and expand support networks; so people can now legally disclose information to lawyers, doctors, psychologists and unions without breaking the law.
The ombudsman’s powers and scope fall short of the special whistleblower protection authority demanded by transparency advocates.
