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Senior lawyer at the Human Rights Law Centre of Australia and contributor to The Saturday Paper Kieran Pender on how we can help the people who expose wrongdoing.

Why speaking up in Australia is punished

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Speaking up when you see something wrong is too hard in Australia.

People who’ve spoken up about corporate fraud and dodgy government deals, and even those who’ve exposed war crimes, have faced life-altering consequences.

Now, for the first time, there’s a service dedicated to whistleblowers, to offer them support as they bring the truth to light for the rest of us.

Today, senior lawyer at the Human Rights Law Centre of Australia and contributor to The Saturday Paper Kieran Pender on how we can help the people who expose wrongdoing.

 

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Guest:  Senior lawyer at the Human Rights Law Centre, Kieran Pender.

Read Transcript
[Theme music starts]
 
##ANGE:
From Schwartz Media. I’m Ange McCormack. This is *7am*.
 
Speaking up when you see something wrong is too hard in Australia. People who’ve spoken up about corporate fraud, dodgy government deals and even people who’ve exposed war crimes have faced life-altering consequences. But now, for the first time, there’s a place dedicated to whistleblowers that can offer them support to bring the truth to light for the rest of us.
 
Today, Lawyer at the Human Rights Law Centre of Australia and contributor to *The Saturday Paper* Kieran Pender on how we can help the people who expose wrongdoing.
 
It’s Monday, September 11.
 
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##ANGE:
Kieran, when we think about whistleblowers, people probably think of, you know, high profile, sensational cases that get a lot of media attention. But most of the time when someone blows the whistle, it's not really that at all, is it? 
 
##KIERAN:
I think people do gravitate in their mind to those high profile cases, the Edward Snowden's of the world. And right now in Australia we have two whistleblowers on trial for telling the truth about government wrongdoing. David McBride, the defence whistleblower. Richard Boyle, the Tax Office whistleblower. But they are just the tip of the iceberg. So, you know, at any time someone could be at work, you know, someone listening to this podcast might go into work today and see something wrong and want to speak up about it. No one really sets out to become a whistleblower. You know, I've dealt with hundreds of whistleblowers in my time, and they think they're doing the right thing by speaking up and they might speak up to their boss or another manager. You know, if things are really wrong, maybe they go to a regulator and then if nothing happens is a worst case scenario, maybe they go public. 
 
##Audio Excerpt – Laura Tingle:
“Whistleblowers have been responsible for some huge stories in Australia in recent years. Dubious debt collection practices in the tax office, the Afghanistan files, the bugging of East Timor's government and dodgy sales of banknote technology owned by the Reserve Bank of Australia.” 
 
##KIERAN:
Now in theory we have laws that are supposed to protect whistleblowers that prevent all of those negative consequences. Unfortunately, we know that's not working and in reality too many of our whistleblowers in Australia are suffering as a result. The laws aren't working to protect them. Are suffering as a result, and as a result, people are staying silent. 
 
##ANGE:
Yeah. And what kind of consequences are people facing when they blow the whistle? What kind of suffering are you referring to? 
 
##KIERAN:
The cost of courage can be huge. We know there's empirical studies that show as many as six or seven or even eight in ten whistleblowers suffer some form of detriment at work after they speak up. We see that in the data, in the numbers, but then we also see it in the really human cases. So someone like Troy Stoltz, who blew the whistle on a failure to take action on money laundering at Clubs New South Wales. 
 
##Audio Excerpt – Reporter:
“Troy Stolz worked for Clubs New South Wales as a compliance auditor and claims drug syndicates deposit large amounts into poker machines, then cashed their money out soon after.” 
 
##Audio Excerpt – Troy Stolz:
“This is quite alarming the amount of money that is being laundered through clubs and pubs in Australia, let alone in New South Wales.”
 
##KIERAN:
He blew the whistle to journalists and to Andrew Wilkie MP. Clubs New South Wales sued him and he faced hundreds of thousands of dollars in legal fees. He was on the edge of bankruptcy, all the while fighting cancer. Ultimately, that case settled.
 
##Audio Excerpt – Reporter:
“Having paid over $1,000,000 in legal fees, which cost him his house. Last month, Troy Stolz settled with Clubs New South Wales. Since then, he's stopped criticising his former employer.”
 
##KIERAN:
That's a really grim example of someone who called out wrongdoing. And yet the person who told us that Clubs New South Wales knew about the wrongdoing and didn't take action. He was on the hook for hundreds of thousands of dollars in Clubs’, legal fees. You know, I've had the fortune of working with many whistleblowers and it can be really devastating to hear from these people, really heart wrenching to see people who thought they were doing the right thing. And despite thinking that the law was on their side, that the public interest was on their side. They're the ones suffering as a result. So as a result of all of that, at the Human Rights Law Centre, we did some research. We looked at this whistleblowing framework. We've had these laws in place for decades now that was supposed to protect whistleblowers, supposed to empower them to speak up. You know, the whole idea of these laws where if people suffer as a result of their whistleblowing, they can get their compensation, they can get their job back, they can get an apology. Across all of the whistleblowing laws. You know, we looked at over 20 different laws across more than three decades, only one successful case, and then that whistleblower only got $5,000, which doesn't seem like much. 
 
##ANGE:
Yeah, right. And so there are laws, obviously, as we've been talking about. And how are they meant to work? Because I assume, you know, they have some kind of framework that says you can't punish someone for exposing wrongdoing or, you know, a wrong in the workplace. Right. So why are they actually failing in this way? 
 
##KIERAN:
Yeah, So the laws are really clear on paper that if you speak up about wrongdoing in the right channels, then it's illegal to take action against you for doing that. And if you do face action, not only is it a crime to take detrimental action against whistleblowers, in many circumstances, the whistleblower can seek legal action to get compensation, to get other remedies. And all of the evidence shows that most recently this review of all the cases we've done, the fact that we've got whistleblowers on trial for telling the truth, they're too technical, they're too complex, they have all these loopholes and inconsistencies and whistleblowers can't get access to the support they need. There is not a dedicated body to protect and empower whistleblowers. There's very little legal support, psychological support available to these people. And as a result, they're suffering. And to me, I thought the contrast was really stark. Just recently we saw an example in the United States where whistleblowers spoke up about wrongdoing at a consultancy firm that was ripping off the US government in the defence sector. 
 
##Audio Excerpt – Reporter:
“That’s when Feinberg says she began a campaign to convince her bosses to put a stop to it…”
 
##Audio Excerpt – Sarah Feinberg:
“It made me very upset as a taxpayer. It made me very upset as a marine officer. And I saw how limited our resources were.”
 
##KIERAN:
That firm ultimately settled with the government in the US for almost $400 million US. And the whistleblower got a cut of that. 
 
##Audio Excerpt – Reporter:
“Feinberg's $40 million share landed in her family's bank account a few weeks ago.” 
 
##KIERAN:
The US has really led the world here in terms of schemes to encourage whistleblowers to speak up a recognition that even compensation schemes are not enough because too often whistleblowers can never work in their chosen sector again. And so these reward schemes in the US, these schemes that allow whistleblowers to take legal action on behalf of the government. It's created a whole ecosystem of lawyers in the US that are effectively corruption fighters seeking out fraud against the taxpayer and bringing lawsuits on behalf of whistleblowers to crack down. The US government has recovered billions of dollars through that that they might not otherwise have done because brave whistleblowers and lawyers worked to get that money back for the taxpayer. I think if we look around now, we see all of these great initiatives in other countries. We realise that Australia is falling behind when not protecting whistleblowers. And that's really bad for our democracy. 
 
##ANGE:
After the break - Will the government act on whistleblower protection?
 
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##ANGE:
Kieran, you mentioned that when it comes to protecting people who speak out against the employers and expose things like corruption in the workplace, there's countries that do it better than Australia. You know, the U.S. is one example that you mentioned. What other overseas examples are worth learning from? 
 
##KIERAN:
We've also seen in other countries, in places like Ireland, in places like Serbia, civil society has really come to the aid of whistleblowers. We've got really well-established legal services in those countries I mentioned and in places like France and across Africa, there's a really fantastic NGO that just a lot of work in a number of different African jurisdictions, providing no cost or low cost legal support to whistleblowers. What we have known from all of this global experience is the laws only work in practice, not just on paper, when people can get access to the support they need, they need lawyers in their corner. Because we think about the power imbalance here. You know, a whistleblower is taking on the might of a company, a might of a government. They need people in their corner, on their side, providing them with the support. And unless there's ways for that support to be offered low cost or no cost. Whistleblowers find themselves alone. So that's a huge gap in Australia that at the Human Rights Law Centre we've been working to fix and we recently launched our whistleblower project to do just that. 
 
##ANGE:
Yeah, and can you explain more about what that project is and what you're hoping to achieve? 
 
##KIERAN:
We just launched our whistleblower project in the last few weeks to provide legal advice and representation to whistleblowers in Australia. In addition to continuing our proud history of law reform and advocacy to ensure that the climate is better for whistleblowers who speak up, we want to help people bring wrongdoing into the public domain so we can have accountability and we can have justice. And already we've been helping a number of people and we've been inundated with inquiries since we launched, which is both exciting and kind of terrifying. The level of wrongdoing that is out there that's currently going unaddressed because people don't have the support to speak up. 
 
##ANGE:
I'm wondering what some of the people that have come to you in the, you know, since the launch of the project, wanting to blow the whistle or have blown the whistle, what are they telling you? What kind of reservations do they have about coming forward? How do they grapple with the task on their shoulders, which is exposing something and bringing something to light? 
 
##KIERAN:
I'd say watch this space. We'll have more. You know, hopefully we can help people bring this information into the public domain. And obviously, I can't say too much, but I think what's coming through and what we've heard so far is this real need for support and both legal support and then sort of a broader form of support, support, you know, at a psychological level, at a career level, we had a launch event for our project in Sydney, and Jeff Morris, the CommBank whistleblower who sparked the royal commission into banking, he said he hears from whistleblowers all the time. He doesn't sugarcoat his advice to them. He talks to them about the impact it's had on his life, the toll it took. And he says, you know, at the end of that process, maybe one in a hundred speak up and imagine what we don't know. Because only one in 100 is speaking up. Imagine if we can change that and make it, you know, one in 50, one in ten. If we can normalise speaking up about wrongdoing and decrease, lower the cost of courage. Imagine the better Australia we'd be in where wrongdoing was addressed. There was accountability, there was justice, and there was change. 
 
##ANGE:
Kieran, the government is going ahead with the prosecution of whistleblowers. You know, we've mentioned the cases of David McBride and Richard Boyle. They're both facing jail time. Do you think this government and the attorney general will listen to what you're saying? Will they establish better protections at a legal level? 
 
##KIERAN:
I hope so. Those cases have a chilling effect on whistleblowing in Australia, and it's really important that they are ended in one way or another. Beyond that, the government talks good talk on whistleblowing reform. The Attorney-General Mark Dreyfus KC enacted the federal public sector whistleblowing law a decade ago. He said the right things. He intervened in the Bernard Collaery whistleblowing case last year. Those are all good steps, but now we need to see concrete action.  We're going to continue our work calling for reform, calling for comprehensive, robust reform that ensures these laws actually work in practice. And a key part of that reform agenda is the establishment of a whistleblower protection authority. So, unlike in other areas, you know, if you're being underpaid at work, you can go to the Fair Work Ombudsman. If you're being harassed or discriminated against at work, there are human rights commissions across state and federal level that, you know, oversee and enforce those laws. We have nothing like that in the whistleblowing space. I'm an optimist at heart, and I believe that we can have a better Australia where whistleblowers are protected and empowered, not punished and prosecuted. But it's going to need effort from all of us. We committed to playing our part through the whistleblower project and we hope the government steps up too. 
 
##ANGE:
Kieran, thanks so much for your time. 
 
##KIERAN:
Thanks. 
 
[Theme music starts]
 
##ANGE:
Also in the news today…
 
The worlds most powerful leaders met at the G20 summit in Delhi over the weekend. But with Ukraine on the agenda, Russian President Vladimir Putin and China’s president Xi Jinping skipped the meeting. A final statement from the meeting stopped short of condemning Russia — instead calling for the ‘upholding of territorial sovereignty and international law’
 
And…
 
A major earthquake in Morocco appears to have killed thousands, and damaged historic sites including the old city of Marrakech. 
 
I’m Ange McCormack, this is *7am*. We’ll be back again tomorrow. 
 
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Background Reading

opinion
August 26, 2023
How to protect whistleblowers