The moment for truth

“Without robust reform and new institutional structures, Australia’s whistleblowers will continue to be punished rather than protected. When we fail to empower these courageous truth-tellers, our democracy suffers. When whistleblowers stay silent in the face of wrongdoing , we all suffer.”

Whistleblowers are vital actors in our democracy, upholding our right to know. Without them – and the public interest journalism they make possible – corruption and human rights abuses go unaddressed. In recent weeks, Senator David Pocock and members of parliament Zoe Daniel and Andrew Wilkie have all given voice to whistleblowers.

Pocock highlighted that an oil spill at a Santos facility in Western Australia had killed dolphins, and that the gas giant covered it up. Daniel told parliament that she had been contacted by whistleblowers working at a youth detention centre in Victoria, where children were allegedly being kept in solitary confinement for up to 22 hours a day. And last week Wilkie, a former whistleblower himself, tabled reams of documents that he said showed fraud and other unlawful conduct at megachurch Hillsong.

Pocock, Daniel and Wilkie were able to make these disturbing claims public because they and their sources were protected by parliamentary privilege, a doctrine dating back centuries that protects the proceedings of parliament. Immediately the disclosures sparked calls for accountability – Santos has commissioned an independent investigation into “Dolphingate”; the charities regulator has said it is investigating Hillsong.

Without whistleblowers, and willing crossbenchers, we might never have heard these allegations of environmental wrongdoing, mistreatment of children or money laundering by a charity.

But whistleblowers shouldn’t have to turn to politicians for accountability when they witness suspected wrongdoing. Parliamentary privilege should be a safeguard of last resort. Whistleblowers should instead be empowered to make public interest disclosures under strong laws that protect them from losing their jobs or being sued for speaking up. Unfortunately, our laws offer little such protection.

Even when whistleblowers turn to politicians, they do so cautiously. Daniel spoke about the “concerns about retaliation” among the whistleblowers who came to her. Troy Stolz, who blew the whistle on potential unlawful conduct at clubs and pubs, was sued by Clubsnsw for giving documents to Wilkie (and the media) – his case only recently settled, after years of stress and hundreds of thousands of dollars in legal fees, and following the intervention of parliament’s privileges committee.

How many whistleblowers are not coming forward? What wrongdoing remains in the shadows because our laws are not serving us? The crossbench can give voice to only so many. Without robust reform and new institutional structures, Australia’s whistleblowers will continue to be punished rather than protected. When we fail to empower these courageous truth-tellers, our democracy suffers. When whistleblowers stay silent in the face of wrongdoing, we all suffer.

Another recent story only underscores the importance of whistleblowing: the robo-debt royal commission. If more public servants had felt protected and empowered to speak up, or those in positions of authority had listened to the few brave staff who did object to the unlawful scheme, taxpayers may have been saved more than a billion dollars. More importantly, a number of suicides and the distress of thousands of people may have been prevented. There would be no need for a royal commission had robo-debt been stopped when the alarm bells first rang; we prevent the next robo-debt by helping people speak up and listening when they do.

The good news is that reform is on the horizon. The first tranche of amendments to federal public sector whistleblowing law, the Public Interest Disclosure Act (PID Act), is currently before parliament; a senate committee inquiry into the bill was published this week. It should pass with minor tweaks in the weeks or months ahead.

In 2019, a Federal Court judge blasted the PID Act as “technical, obtuse and intractable”. That needs to change. The bill is a good start – but not much more than that.

For Attorney-general Mark Dreyfus, who oversaw the enactment of the PID Act in 2013, the hard work now begins. We need more ambitious, sweeping reform to bring the PID Act in line with international best practice.

The new laws need several features to be a success: a “no wrong doors” model that helps whistleblowers no matter where they turn, or which point of entry they attempt in telling the truth; stronger protections and accessible remedies for whistleblowers who face retaliation; an enforceable positive duty on government agencies to protect whistleblowers; clearer channels for lawfully blowing the whistle to the media; and greater practical support for whistleblowers.

PID Act reform should be made in lock step with changes to the private sector whistleblowing scheme in the Corporations Act. This covers the vast majority of Australian workers – including anyone who works for a company. These protections are better than the PID Act, and they were last updated in 2019. But a major reason for Australia’s frail, inconsistent whistleblower protections framework is that reform efforts have treated each scheme in isolation, despite significant overlap. It would be far better to fix all federal whistleblower laws at once, and bring all private, non-profit and union sector protections into a single scheme. Consistency and uniformity should be key objectives.

Institutional innovation is essential. At the moment, Australia’s whistleblowers lack any centralised avenue for support. If you witnessed wrongdoing at work, where would you turn? There are few lawyers who specialise in the area (although at the Human Rights Law Centre, we are in the process of establishing a dedicated legal service for whistleblowers). Victims of wage theft or workplace exploitation can go to the Fair Work Ombudsman; the Australian Human Rights Commission and a number of specialised services support those who have been sexually harassed at work. For now, whistleblowers have no one in their corner.

That can be fixed with the establishment of a whistleblower protection authority. Such a body was a central aspect of the crossbench’s legislation to establish a federal anti-corruption commission. But despite Dreyfus’s promise that the National Anti-corruption Commission (NACC) would be extremely similar to the crossbench design, a whistleblower body was not included in the legislation that passed parliament in November. The government has instead promised a discussion paper on the need for a whistleblower authority – even though it committed to such a body before the 2019 election.

I have recently been in the United

States, meeting with two equivalent

American bodies. The US Office of Special Counsel is a centralised hub for public sector whistleblowers; it oversees agencies as they investigate wrongdoing alleged by whistleblowers, investigates allegations of reprisals against whistleblowers and takes enforcement action, manages alternative dispute resolution for whistleblower complaints and intervenes in important whistleblower cases. We need an Australian equivalent, ideally one that also has jurisdiction over the private sector (in the US this function is split across several regulators).

I also met with the Office of Whistleblower Ombuds in the house of representatives, an independent body that helps congresspeople and committees in their dealings with whistleblowers. Given the important role played by MPS and senators in giving voice to Australian whistleblowers, an equivalent in Australia would add vital institutional support.

Through a combination of ambitious law reform and innovative institutional changes, the unfulfilled promise of Australia’s whistleblower framework can become reality.

Unfortunately, Labor has continued to oversee the prosecution of whistleblowers that began under the Coalition. Despite ending the prosecution of Bernard Collaery, Labor continues to oversee cases against tax office whistleblower Richard Boyle and defence whistleblower David Mcbride.

These cases are entirely contrary to the public interest. Boyle spoke up about unethical debt recovery practices at the tax office; Mcbride blew the whistle on alleged war crimes committed by Australian forces in Afghanistan. Each thought they were doing the right thing, speaking up internally, then to oversight bodies, and only to the media as a last resort. They should be protected by the PID Act; instead, they are on trial.

Dreyfus could end these cases with the stroke of a pen. Boyle is awaiting judgement in his defence under the PID Act; if he loses, he will face trial in October. Mcbride’s PID Act defence was withdrawn at the last moment after an extraordinary national security intervention by the government. He will face trial later this year. Mcbride remains the only person charged to date in relation to the war crimes allegedly committed by Australian forces in Afghanistan. Not the perpetrators, but the truth-teller.

If Boyle or Mcbride are ultimately found guilty, and imprisoned, it will be on Labor’s watch. These cases send a chilling message to other whistleblowers about the risks of speaking up. They undermine the otherwise good work being done by this government.

Prosecutions aside, the Albanese government’s commitment to substantial whistleblower reform is admirable. Dreyfus has a strong track record, dating all the way back to his time as a backbencher chairing the committee that recommended the PID Act. But words are only the start. In the months ahead, all Australians need to see concrete action on whistleblower reform. We need ambition to truly protect and empower those who speak up about wrongdoing, and ensure their calls are heeded.

The commencement of the National Anti-corruption Commission in the months ahead will be a landmark moment for accountability in Australia, but the NACC will be ineffective without whistleblowers. If those who witness corruption do not feel confident to speak up, how will the NACC do its job?

With ambitious reform and the establishment of a protection authority, 2023 could be the year of the whistleblower. That would be a fitting tribute to the courage shown by these brave Australians.

“Tanya Plibersek is the most prominent Labor figure to have taken the portfolio this century. Although Labor’s vote of 46 per cent in 1987 has fallen to 33 per cent in 2022, she has a head start in that most Australians are now roaring for action to protect the environment.”

Tanya Plibersek is well placed to be one of Australia’s best ministers for the Environment, but she has to stand up to powerful rivals in cabinet who are so far pushing the agenda in favour of fossil fuels and environmental destruction. Specifically, she needs to stand up to Resources Minister Madeleine King and Climate Change Minister Chris Bowen, who are intent on ignoring the public demand for action on climate change – instead favouring the donors and polluters who have held the country hostage for more than a decade. How much Prime Minister Anthony Albanese backs her will be key to deciding the future. It is a test for him as much as it is for Plibersek.

The model for Plibersek comes from what might seem like an odd place: former minister Graham Richardson, who, despite questionable actions elsewhere in his career, became the most effective minister for the Environment that Australia has seen.

In 1987, standing outside the Australian Heritage Commission in Canberra, Richardson put his hand behind his ear and told those in front of him “I can’t hear the crowd roaring!” As Bob Hawke’s new Environment minister, he was calling on the assembled campaigners to create the public uproar that would be necessary for him to silence his pro-logging and pro-mining colleagues in cabinet.

Richardson took on experienced environmentalists as advisers and to liaise with Hawke. His access to Hawke was critical to enlarging the Tasmanian Wilderness

World Heritage Area, expanding Kakadu and saving the Daintree Wet Tropics rainforests. Richardson won over a razor-thin majority of cabinet to block the polluting pulp mill proposed for Wesley Vale in Tasmania and, in 1988, alerted cabinet to the issue of global warming. His actions helped save a swath of Labor seats in 1990.

Fast-forward 35 years and Tanya Plibersek is the most prominent Labor figure to have taken the portfolio this century. Although Labor’s vote of 46 per cent in 1987 has fallen to 33 per cent in 2022, she has a head start in that most Australians are now roaring for action to protect the environment.

Plibersek’s press club speech, a month after she became minister, showed she was well acquainted with the task ahead. It was a sobering checklist of the problems she must solve: “marine heatwaves have caused mass coral bleaching in the Great Barrier Reef … Australia has lost more mammal species to extinction than any other continent … is one of the world’s deforestation hot spots … now has more foreign plant species than native ones … a plague of marine plastics … those bushfires were an ecological bomb…”

Plibersek nailed climate change as an overarching threat to life on Earth. “Global warming multiplies environmental pressure everywhere. It heats our oceans. It deepens drought. It intensifies disease. It destroys habitats.”

And she had read the Australian electorate. “They voted for action on climate change. They voted for their children and their grandchildren and every generation of Australians who will follow us. When you change the government – you change the country. After a lost decade, after a decade of going backwards, we can’t waste another minute.”

King was sworn in to the ministry the same day as Plibersek and got the jump by announcing, that day, the government’s go-ahead for Woodside’s $16.5 billion Scarborough gas project in Western Australia, a massive greenhouse gas emitter. Next day, Albanese backed King. Plibersek was sidelined.

When Plibersek did turn her eyes to WA, her first big decision was an enormous blow to green admirers. She approved the state Labor government’s plan to ram its Bunbury bypass through the tiny Gelorup Corridor woodlands, which are full of rare and endangered creatures, although routes going around the woodlands, south of Perth, were available.

As distressed local residents took to the barricades, the bulldozers moved in. Six critically endangered western ringtail possums died in the first week, including two babies that were euthanised, before Plibersek called a three-month halt – but only until their breeding season was over. In April, the bulldozers will head back in the Gelorup woodlands, which are also habitat for three species of threatened black cockatoo, a native fish, orchids and perhaps the two largest mistletoe trees on Earth. She can – and should – stop them.

The Albanese government should also end native forest logging. A New

Zealand Labour government did it in 2001, and Albanese’s whole approach to climate change revolves around giving carbon credits to people who promise not to chop down trees. Why not simply end the subsidised destruction of some of the world’s most carbon-dense forests by a decrepit industry that has already shed most of its workers?

For a growing list of threatened birds, insects and mammals – including koalas, for which Plibersek has an obvious soft spot – the consequences of destroying more forests are as appalling as they are unpopular. A poll from The Australia Institute shows that 68 per cent of Coalition voters, 78 per cent of Labor voters and 91 per cent of Greens voters back an end to native forest logging. Compared with Hawke’s saving of the Franklin, here is an easy gift to Albanese and Plibersek, if they want those swinging green votes.

And what of the coalmines, gas wells and other fossil fuel projects that will require Plibersek’s approval? Curiously, Albanese gave the Climate Change portfolio to Chris Bowen, who favours new coalmines and gas wells. Plibersek should take him on for this.

Last month Plibersek went on Twitter to announce she had blocked Clive Palmer’s proposed coalmine in Central Queensland. It was a promising move, but she then approved Santos’s vast gas project, also in Queensland, leaving that announcement until late on a Friday. She knew that decision was a stinker.

Bowen’s safeguard mechanism to tackle climate change is a dressed-up version of

Scott Morrison’s sham policy. The proposed restrictions are so weak that absolute emissions may even rise because the new policy fails to stop new fossil fuel projects and does not oblige existing polluters to reduce their emissions. The bill’s unlimited offer of “carbon offsets” is a licence to pollute.

Like Bowen, Albanese has ignored the United Nations’ call for a ban on new coal and gas projects. The Greens and some teals are seeking other restraints, such as limits on offsets and the abolition of fossil fuel subsidies. Greens senator Sarah HansonYoung has introduced a bill for a “climate trigger” that would give Plibersek the power to overrule King and Bowen, but the government won’t wear it.

Plibersek told the National Press

Club that “global warming multiplies environmental pressure everywhere” yet, when asked about new export coalmines and gas fields, she ducked the question and said “we are responsible for the carbon pollution that we emit here in Australia”. With shades of Stuart Robert’s line on cabinet solidarity, she seems trapped by Albanese’s pro-coal brigade and their climate myopia.

Before Christmas, the minister released her Nature Repair Market bill to promote the protection and restoration of nature. It endorses the Alice in Wonderland idea of “offsets” in which the destruction of critical habitat is excused by setting aside other land to resettle the displaced creatures. It is a step towards her dream that “one day Australia will house its own Green Wall Street: a trusted global financial hub, where the world comes to invest in environmental protection and restoration”. This is a far cry from the direct government action needed to protect nature.

Plibersek says she will replace the Environment Protection and Biodiversity Conservation Act 1999 with more effective laws, including a strong environment protection agency, but the Nature Repair Market bill is a woeful start.

The rubbery rules in the EPBC Act are no excuse for the ministers who have been charged with protecting Australia’s environment. Had they read the act properly, and chosen not to use the weasel words for cover, they could have stopped such outrages as Gelorup, the Adani coalmine in Queensland, the vastly destructive Mcarthur River Mine in the Northern Territory, and Whitehaven’s tragic disintegration of the Leard State Forest near Narrabri with its failed “offsets” but no penalties.

Making a stand against naturedestroying projects, including coal and gas, will test Plibersek’s mettle. A good start would be to intervene, even at this late stage, to save Gelorup.

She must also decide whether to protect Tasmania’s takayna/tarkine rainforest and its threatened masked owls from state-owned Chinese company MMG’S bid for a licence to dump acid wastes there. There are other options for the waste dump, but not for the owls. Hundreds of people are ready to defend the rainforest owls if they have to.

Plibersek should also stave off the proposed invasions of World Heritage Areas with private tourism resorts, halt mining through Aboriginal heritage sites and stem the multinational rush to rob Antarctica’s whales and penguins of their krill fisheries.

To take on cabinet, including King and Bowen, she needs top environmental advisers, a better budget and the prime minister on her side.

As Hawke did for Richardson, Albanese should be backing his minister for the Environment to meet public expectations that the Commonwealth will act to protect the nation’s heritage. So far, he isn’t.

Albanese says that he and Plibersek are good friends. In this age of environmental crises, his government’s green credentials depend on her as much as her effectiveness depends on him. They are the right friends for a nation wanting environmental action, and they can’t waste another minute.