From the footage that came out of Don Dale, the disclosures that led to the Banking Royal Commission or the leaked Nauru files, at the heart of all these stories is a whistleblower — someone who has taken a risk to right a wrong.
For many whistleblowers, the decision to out a wrong-doer puts their lives on a collision course with not only their immediate employer but the range of government organisations charged with mediating injustice on their behalf.
It is common for whistleblowers to lose not just their job but any hope for a career in their chosen industry. They become pariahs, enduring campaigns to destroy their reputations. Lengthy legal battles leave them in financial ruin. Some are subject to death threats and experience relationship breakdowns. Many end up unable to work due to strain caused by the battles they are forced to wage.
The study investigated:
' ... what was done and what happened to whistleblowers after wrongdoing had been reported- including acts of retaliation, reprisals and other forms of detrimental action.'
While whistleblowers feature relatively rarely in media stories, STOPLine which offers whistleblowing solutions to organisations (for safe reporting of internal misconduct) maintains a database of 500 whistleblowers, demonstrating that whistleblowing is more common than the rarity big mainstream stories suggest. The advice of Whistleblowers Australia from the annual conference I attended in 2015, is that it is much safer and more effective for prospective whistleblowers to keep their counsel and disclose in a secure and confidential way to the media, rather than internally.
Brian Martin's The Whistleblower's Handbook (p6) describes using formal channels as 'playing the opponent's game':
There are all manner of formal channels for dealing with injustices, including grievance procedures, ombudsmen, antidiscrimination boards and the courts.
When an individual appeals to one of these formal channels for action to be taken against an organisation, the organisation has all the advantages. It has far more money, unlimited time and usually little individual responsibility. It can stall, resist giving information, hire expensive lawyers and mount attacks.
Recent amendments to national security legislation coupled with attacks on the right to encrypted communications have further compromised the capacity for whistleblowers to feel confident their contact with journalists will be kept private, and for journalists that they can report without interference and the threat of criminalisation.
According to the Media Entertainment and Arts Alliance (MEAA), the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 allows for anyone receiving or handling information covered by National Security Legislation – whether solicited or not – to receive sentences for up to 20 years.
The Assistance and Access Bill 2018 will target social media companies with $10 million in fines if they refuse to help the Australian Government to access encrypted communications of users they suspect of a crime.
On the positive side, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 strengthens the rights of whistleblowers in finance or banking sectors to make protected disclosures to the government or the media, under certain circumstances.
Award-winning Australian journalist Julie Posseti, with funding from UNESCO, researched and created an 11-point framework to provide a basis to compare jurisdictions across the globe on the implications of their legal frameworks for the protection of sources in the digital age.
The framework measures legislative frameworks according to the following points:
- Recognise the value to the public interest of source protection, with its legal foundation in the right to freedom of expression (including press freedom) and to privacy. These protections should also be embedded within a country’s constitution and/or national law.
- Recognise that source protection should extend to all acts of journalism and across all platforms, services and mediums (of data storage and publication), and that it includes digital data and meta-data.
- Recognise source protection does not entail registration or licensing of practitioners of journalism.
- Recognise the potential detrimental impact on public interest journalism and on society of source-related information being caught up in bulk data recording, tracking, storage and collection.
- Affirm that state and corporate actors (including third-party intermediaries), who capture journalistic digital data must treat it confidentially (acknowledging also the desirability of the storage and use of such data being consistent with the general right to privacy).
- Shield acts of journalism from targeted surveillance, data retention and handover of material connected to confidential sources.
- Define exceptions to all the above very narrowly, so as to preserve the principle of source protection as the effective norm and standard.
- Define exceptions as needing to conform to a provision of “necessity” and “proportionality” — in other words, when no alternative to disclosure is possible when there is greater public interest in disclosure than in protection and when the terms and extent of disclosure still preserve confidentiality as much as possible.
- Define a transparent and independent judicial process, with appeal potential for authorised exceptions, and ensure that law-enforcement agents and judicial actors are educated about the principles involved.
- Criminalise arbitrary, unauthorised and willful violations of confidentiality of sources by third-party actors.
- Recognise that source protection laws can be strengthened by complementary whistleblower legislation.
With the rise of concern regarding privacy, and the implications of digital surveillance for whistleblowers and journalists alike, groups like CryptoAustralia and Hack for Privacy have sprung up in major cities, providing a grassroots support system for internet users to share tools and practices for secure communication and improved privacy.
To keep informed about and support the latest campaigns or policy submissions, there are now organisations such as Electronic Frontiers Australia, Digital Rights Watch and the Australian Privacy Foundation. The more voices that engage with the issues that affect us all, the fairer our societies will become.
We owe it to our whistleblowers to fight the battles to try to keep them safe, and we owe it to ourselves to fight for our privacy and security. We can’t have a just society without it.
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