Whistleblowing: Australian case raises questions over level of protection

Joanne HarrisTuesday 12 December 2023

In mid-November, former military lawyer David McBride pleaded guilty before a court in the Australian Capital Territory of three charges of stealing and passing classified information to journalists. McBride’s leaks in 2015 revealed allegations of Australian war crimes in Afghanistan and sparked an inquiry, which found ‘credible evidence’ behind allegations that Australian soldiers had unlawfully killed 39 Afghan civilians and prisoners.

But the way McBride’s case has unfolded has caused dismay among human rights advocates, who say he’s being punished for blowing the whistle – and that the case has exposed the lack of protection in Australia for whistleblowers more generally. ‘The mistreatment of whistleblowers raises fundamental human rights issues, imperilling freedom of expression and having a chilling effect on whistleblowers exposing other forms of human rights abuse,’ says Kieran Pender, a senior lawyer at the Human Rights Law Centre. ‘In recent years in Australia, we have seen numerous whistleblowers prosecuted for blowing the whistle on government wrongdoing. These cases raise real democratic concerns and underscore that Australia’s whistleblowing laws are not working.’

The spokesperson for the Attorney General’s Department highlights, however, that in mid-November, the government released a consultation paper inviting submissions on a second stage of reforms to address the underlying complexity of the whistleblowing framework and steps to provide effective and accessible protections for public sector whistleblowers. ‘This includes consideration of whether there is a need to establish a Whistleblower Protection Authority or Commissioner,’ says the spokesperson.

Robert Wyld, Member of the IBA Anti-Corruption Committee Advisory Board and a consultant at Johnson Winter Slattery in Sydney, believes Australian culture may be playing a part in how whistleblowing is handled in the country. ‘The Australian Government still has a difficulty, as perhaps does much of Australian society, of properly respecting and protecting whistleblowers. The old “don’t dob in a mate” [ie, ‘don’t report a friend’s wrongdoing’] culture still pervades society,’ he says. Wyld adds that the rule of law should ‘apply to all, fairly and impartially, yet it is so often turned to criticise and attack those who voluntarily disclose misconduct.’

Australia isn’t alone in lacking whistleblowing protection, especially in the public sector. ‘In Switzerland, generally speaking, we have an issue with the whistleblowing concept because we don’t have any legislation in this respect,’ says Sonja Maeder Morvant, Member of the IBA Business Crime Committee Advisory Board and a partner at Reiser Avocats in Geneva.

Maeder Morvant explains that Swiss labour law affords limited protection to employees, but someone blowing the whistle on wrongdoings by Swiss authorities would – as with McBride in Australia – have no protection.

In contrast, the EU adopted the Whistleblower Protection Directive in 2019, which covers both the public and private sectors and recognises the strong public and human rights interest in ensuring people are able to speak out. Member States were required to transpose the Directive’s measures by late 2021. In February, the European Commission referred Czechia, Estonia, Germany, Hungary, Italy, Luxembourg, Poland and Spain to the Court of Justice of the EU for failure to transpose the law.

Italy did enact a legislative decree in July, which requires corporations to establish whistleblowing channels and protects whistleblowers from being sacked or even having their identity disclosed. Whistleblowers can also report to the national authority for anti-corruption or express their concerns through social or traditional media – with the law making it hard for organisations to then sue for defamation.

Riccardo Lucev, Treasurer of the IBA Criminal Law Committee and Founder of Studio Lucev in Milan, says a balance has been struck between protecting national security interests and human rights. The legislation covers violations of EU law – for example fraud and corruption – but not national security issues. ‘The way our legislation has balanced this conflict of interest is to set rigid standards regarding what can be reported through whistleblowing. Within these boundaries the protection of human rights of the whistleblower must be granted,’ explains Lucev.

However, culture could still limit the effectiveness of the legislation. Lucev highlights that at least initially, Italians are less likely to want to blow the whistle than people living in jurisdictions where whistleblowing has a stronger tradition. He won’t be surprised if there aren’t many reports in the new legislation’s first year of application.

‘It’s important that the rule of law should be respected, but this may mean that the whistleblower should be prosecuted,’ says Maeder Morvant, highlighting that absolute protection from prosecution could mean those involved in atrocities could expose them and then escape punishment for their part in events.

But this makes legislation even more important, she adds. ‘It’s fundamental precisely to give more comfort to those people who decide to blow the whistle that they get an understanding that they may go to prison if they do that, but they can benefit from some sort of framework,’ she says.

According to Wyld, the McBride case and others before it have raised troubling questions about the application of the rule of law, and the Australian government has been more supportive of private sector whistleblowers than public servants.

While the Australian government has committed to reform, this will come too late for McBride and several other whistleblowers who have faced prosecution. ‘We have seen increasing public awareness and concern in Australia about the mistreatment of whistleblowers,’ Pender says. ‘Australians increasingly value the democratic role played by whistleblowers, and want stronger protections and an end to the prosecution of whistleblowers.’

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