Project Description

Free Speech and Whistle Blowers – with Kieran Pender

Today on the HR Breakfast Club podcast, our guest host James Judge sits down with Gus McLachlan to talk about leadership in the digital age. Gus has recently transitioned from the role as Major General in the Australian Army after 38 years of service.

Gus has commanded at all levels including commanding the first brigade and has completed several overseas deployments to Afghanistan, East Timor, and the Solomon Islands. He’s also been seconded to the Pentagon and has filled the role of Chief of Staff to the then Chief of the Australian Defence Force, sir Angus Houston.

His last role was as head of Forces Command managing 35,000 women and men across a couple of functional areas including the individual training of skills as diverse as tank drivers to carpenters, helicopter pilots, and cyber defenders. 

With such a diverse scope of leadership responsibilities throughout his career, we are very pleased to be discussing the ways in which leadership has changed over the years. Gus was generous with his time and provided invaluable insight into how to create a positive, supportive work culture.

For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!

Some topics we cover:

  • What is a whistleblower and in what circumstances someone may become one
  • Most illegal activity is performed behind closed doors, which is why whistleblowers are so important
  • How the Australian culture affects the readiness of whistleblowers to come forward
  • The differences between the public and private sector in this space
  • Encouraging a workplace culture that supports whistleblower activities

Genevieve Jacobs: Hello. This is the HR Breakfast Club Podcast. I’m Genevieve Jacobs. Our focus is on the world of work in Australia with a legal spin. In each episode, we look at HR issues that arise in the workplace and important information about how you might approach them. Our website is hrbreakfastclub.com.au, and if you’d like to make contact with some questions, we can respond to those as well and keep you updated on recent developments in the field.

This time around we’re looking at whistleblowers, and at the right to free speech in the workplace or out of it. There’s an election coming up. These are fraught times politically, but public servants are people, too. Can they say what they want without losing their jobs? Do employees actually have a duty to speak out if they see corruption or other wrongdoing in the workplace? What does it take to be a whistleblower?

My guest today joining us from London is Kieran Pender. He’s currently a legal advisor to the International Bar Association, the peak global body for lawyers, and a journalist who began his employment law career here in Canberra. Kieran Pender, thanks so much for joining us on the HR Breakfast Club Podcast.

Kieran Pender: Thanks for having me.

Genevieve: What is a whistleblower, and in what circumstances is someone likely to become one?

Kieran: Whistleblowers take all different shapes and sizes, and a unifying feature of meeting a number of whistleblowers is they’ve all said to me, they didn’t set out to become a whistleblower. They were unified by the desire to speak out about something that they considered wrong, that they saw in the workplace.

For most of them, they can see that their speaking out was actually an ordinary part of their job and nothing would come untoward. However, unfortunately, we’ve seen a lot of whistleblowers suffer retaliation for what they’re doing.

On the demand side, there’s obviously also significant importance in uncovering illegal acts. Most wrongdoing in the public and the private sector occurs behind closed doors. If it’s not for these whistleblowers, we would never know a lot of these scandals that have come to light particularly in recent years.

Genevieve: As you’ve just said a minute ago, people see something wrong and they feel a duty to report it. How whistleblowers traditionally being seen in this country?

Kieran: I think in two words; not well. I’m often reminded of a quote by the former New South Wales Police Commissioner, Tony Lauer, who reportedly said in the 1990s that nobody in Australia much likes whistleblowers. That attitude is slowly changing, but we have a long way to go until they’re fully embraced and appreciated for their contribution to Australian society and democracy.

Genevieve: At its best, I think whistleblowing is an act of considerable bravery and conscience. What risk though does the whistleblower run?

Kieran: At an immediate level, many whistleblowers often face employer backlash and retaliation. There could be bullying in the workplace or lack of promotion opportunities. It can be termination. Often that and spreads across the industry that they work and you see a blacklisting effect in digging certain industries more than others.

That then, in turn, can lead to a bit of a spiral where the whistleblower suffers psychological problems. They may have lost their job, that leads to financial and personal problems. You get some whistleblowers who become really obsessed with what they’ve burned, the whistle on know what’s happened to them, and from then on struggle to lead a normal life.

Genevieve: We might say in the Australian vernacular that nobody likes a dobber, and that’s a strong cultural note in this country, isn’t it?

Kieran: Exactly.

Genevieve: What protection is a whistleblower currently offered under Australian law? Perhaps let’s start with how this affects employees in the public sector.

Kieran: Sure. In the public sector, there’s the Public Interest Disclosure Act at the Commonwealth level. Federal public servants have reasonable protections under the law. If they make a disclosure to an authorized person, there’s a reporting process that’s required and investigation must be undertaken, and the whistleblower is required to be informed of the process along the way.

The act then uses whistleblowers, a sword and the shield. On one hand, they get immunity from civil and criminal liability relating to the disclosure, so they can’t be sued, for example, for defamation. If someone they disclosed about takes issue with what they’ve said. There’s a prohibition on retaliation, and if a whistleblower does suffer retaliation, they’re entitled to take legal action against reprisal.

Unfortunately, that scheme, although it is replicated in every state and territory as well for those public servants, it’s still finding its feet and there’s still been a lot of teething problems. They’ve been a conflation of what things should be disclosed under the act with ordinary employment grievances. We’ve led to where the boy-who-cried-wolf type scenario where a lot of the decision-makers and public servants aren’t taking the disclosures seriously.

Then because the scheme is still so young, it only became law at the Commonwealth level in 2014, there’s no case law that guides our understanding of how it works. There’s very little clarity on how, for example, causation should work. If you’ve been retaliated against how you go about proving, then that retaliation as a result of you blowing the whistle and not simply because you weren’t very good at your job.

Genevieve: Okay. What about the private sector then? Are there material differences if you’re privately employed?

Kieran: Yes. In this situation, the private sector is very different. At the moment there are only limited protections contained in the Corporations Act for corporations who are covered under that and their employees. That legislation is poorly written. There’s been almost no litigation. Again, there’s the problem; there’s no judicial guidance and very few people have sought to take advantage of those protections under that legislation.

In 2016 and 2017, there was considerable movement in federal parliament on this issue and a really comprehensive proposal was put to parliament in late 2017 to fundamentally overhaul private sector protections for whistleblowers. That was looking promising, but it stalled before the Senate where it currently sits. For now, private sector whistleblowers in Australia do not have strong legal protections.

Genevieve: That’s a pretty egregious situation, isn’t it, Kieran? If you think that most whistleblowers are motivated by a desire to do something decent and fair, and they have some protection in the public sector, not much in the private sector, it’s quite hard to reconcile that with the Australian concept of a fair go.

Kieran: Yes. It’s not a very satisfactory state of affairs. I think there was hope that this new law before parliament could be a real best-practice international model or force about protection. Unfortunately, it’s been watered down significantly from the first draft report. Now, the reason it’s stalled is because of that watering down where it’s still significant improvement if passed on the existing law, but it’s a long way from best practice, and it leaves a lot to be desired.

Genevieve: Kieran, in the US there are whistleblower awards, there’s been some suggestion that it might be worthwhile here to encourage disclosure. Is there value in that for workers?

Kieran: This is one of the most controversial topics in the field of whistleblower protections whenever you go to a conference or a meeting with lawyers and legal academics in this field. Generally, this is the issue that gets everyone arguing and there’s no consensus. There’s a one-hand strong view that whistleblower awards are un-Australian that’s been described in our context.

The Brits also don’t like it. They think it tarnishes the moral integrity of whistleblowing. From the American context, they view it as an eye in appreciation of the long-term risk that whistleblower suffers. That the courts haven’t been able to properly financially compensate for all of the loss and damage that will be suffered, and so financially incentivizing it with significant sums of money, in the millions of dollars, is a way to address the serious financial consequences of blowing the whistle.

Genevieve: I suppose that in the Australian context, financial rewards quite separately from damages might run the risk of suggesting that whistleblowing is a profitable activity, that there’s a profit motive.

Kieran: It does, but there’s very little empirical evidence in the US that’s the case and barriers to false reporting, et cetera, remain. We’ve seen in the US that it has been effective. The evidence shows that financial rewards have led to more whistleblowing and more recovery for fraud and corruption.

The problem we have in Australia and in other countries is if we don’t take into account these schemes, we’re going to get extraterritorial use of the American approach. For example, an Australian whistleblower blew the whistle on wrongdoing at BHP Billiton and went to the US corporate regulator and was rewarded $4 million. I think there’s a risk that we’re seeing more and more people going overseas to disclose wrongdoing to the American authorities. Unless we get our own house in order and provide robust whistleblower protections and incentives.

Genevieve: What workplace support might be necessary for a whistleblower?

Kieran: I think the main one is anonymity to the extent possible. That’s going to limit the risk of reprisal. The fewer people who know the identity, or indeed no one knows, there are some schemes being set up in anonymous online reporting of issues.

It’s really important that the whistleblower remains informed of the investigative process. Ultimately, what encourages the whistleblower to blow the whistle is their sense. If something that has happened, that is morally or legally wrong, and so they need to be kept up to date and engaged with the process that ultimately investigates that.

There should also be proper reporting channels set up. Most importantly, there needs to be a workplace culture that encourages and promotes whistleblowing protection. We saw over here in the UK recently, the CEO of Barclays Bank. He tried twice to uncover the identity of a whistleblower who identified some filings at the bank. He was recently fined about a million Australian dollars for doing that. That really doesn’t send the right message when the CEO is trying to seek out not for good reasons of the whistleblower.

Genevieve: What do you think the future of whistleblowing laws looks like, given that the area really is in flux?

Kieran: It’s in flux all around the world. The European Union is currently discussing passing EU-wide receiver protections, which are almost best practices. I think that could have a really big normative effect. We’ve seen on a lot of issues, the EU leading the way. They’ve previously fallen behind, but I think impetus from Brussels could have a major boost. In Australia, I think we’ll get there sooner or later in terms of legal protections, but really the ultimate issue is how these things translate into practice and society.

It’s all well and good having legal rights on paper, but until Australian society begins to appreciate the value of whistleblowers, encourages and protects them rather than ostracizing them. We’ll have a long way to go.

[music]

Genevieve: Kieran Pender’s with me here on the HR Breakfast Club podcast. You’re with me Genevieve Jacobs and we’ve been discussing whistleblowing. Kieran, let’s move on now to the correlating issue of free speech. Many people would be aware, for example, of the recent Michaela Banerji case centering on some tweets by a Commonwealth public servant, expressing political opinions albeit under the cloak of anonymity. Talk me through the issues in that case.

Kieran: Sure. This is a really tricky issue. I’ve written lengthy papers about it. I’ll try to distil it as best I can. Ultimately, it comes down to the balance between free speech and the legitimate government interest in an impartial and effective administration. Now there are strong reasons why the government doesn’t want public servants expressing their political opinion all the time, and that’s long been accepted by the courts.

Now in Australia, there’s no express right to free speech. At best, we have an implied constitutional protection for political communication. Ultimately, public servants can’t be silent members of society. They are ordinary citizens, too. They deserve to be involved in this debate. Often it’s them who have the best place to comment and contribute to democratic discourse.

Now in 2013, a public servant who had tweeted against government border policy when she worked at the Immigration Department, she was terminated and she lost a case in the Federal Circuit Court. Then five years later, just a few months ago, she won a common case in the Administrative Appeals Tribunal. The tribunal drew parallels to George Orwell and his idea of thought crime in criticizing the government approach.

That was appealed to the Federal Court, and it was then taken up to the High Court. The hearing is going to be set in probably early 2019. The problem here is this isn’t a black or white issue. It’s a question of where you draw the line between these two very compelling different policy priorities. The problem at the moment until we have these high court clarity is the line is blurry and then encourages the government to overreach.

Genevieve: Then there’s also the case of former Army Reserve Officer Bernard Gaynor, who in his own time, and via his own personal social media channels was very critical of homosexuality. Now, the defense said that its control attempts went towards maintaining the chain of command, avoiding danger to military personnel, and protecting their reputation.

That does sound a lot to me like public service reasoning about the efficient operation of government, preserving an impartial and neutral public service. That didn’t wash with the Federal Court either, did it?

Kieran: It didn’t wash at first instance. In the first case involving Mr. Gaynor, Justice Buchanan of the Federal Court, he said, “Look, this is about a political opinion that’s being expressed as a private citizen and the fact that there are some critical elements of the Army’s policies and instructions.” He didn’t think that was connected to any legitimate legislative aim that would displace the implied freedom of political communication. He found for Mr. Gaynor that went on appeal to the Full Federal Court.

It really turned on quite a technical question of the right approach to take under constitutional law. The Full Federal Court upheld the government’s appeal. Then that went on in turn to the High Court who refused to hear the matter, which leaves the law in a great state of uncertainty that at the first instance, the judge said, “No, this isn’t okay.” Then on appeal, it turned on a fairly technical point. Then the High Court said, “No, we don’t want to get involved here.”

Again, that and the current uncertainty in Banerji leaves us in a fairly and envious place where public servants aren’t really sure the extent to which they can comment on political issues.

Genevieve: Kieran, we’ve had a number of these cases recently. I’m also reminded of the Tasmanian woman who lost her job after communicating with the state government about abortion access. Now, in that case, her employer was Cricket Australia, that’s a public company. Are these matters any different in the non-government sector?

Kieran: When it’s a private context, the constitutional issues largely wash away, and because the Constitution is a constraint on government action, not private action. It’s possible that perhaps a common law right to free speech might still inform a court’s interpretation of contractual obligations in a private sector context. Those are very much uncharted waters legally. The question really becomes one predominantly of how far a private-sector employer you can go in regulating the out of hours conduct of an employee.

Genevieve: Let’s boil it down into very practical matters. What rights does an employer have in restricting an employee’s communications, no matter what the content?

Kieran: Sure. I think the starting point has to be that in an out of context, most of these cases involving employees speaking in their own time, and at this point has to be the employee does not have the ability to control and regulate an employee’s private life. The exception is where there’s a sufficient nexus within an employee’s legitimate interest. The primary case here is called rose involved two employees getting into a punch up out of hours.

The court there said that termination, for example, for out of hours’ conduct can be justified only when the conduct is going to cause serious damage to the employment relationship, damages the employee’s interests, or it’s incompatible with the employee’s duty as an employer. Very tightly constrained circumstances that go to the heart of the employment relationship, and absent those circumstances regulating an employee’s free speech in their own time is very rarely going to be legitimate under the law.

Genevieve: It really seems that the law is somewhat unclear here in flux. I guess many people will feel it’s in their best interest to keep their heads down, but they’ll be others have strong opinions and others that they feel transcend and in need for caution [chuckles]. I guess what advice do you have for employees and employers on free speech in the workplace?

Kieran: It’s a very tricky issue. I think that’s unfortunate. I’m hopeful the High Court in this Banerji case next year will clear things up. I think my caveat is I am a believer that employees should be able to speak their mind, particularly public servants. I think that’s important to Australian democracy. However, my advice practically speaking for public servants would be to stay away from issues that go to what you work on, or relevant to your department. That’s going to increase the risk.

Keep communication polite and civil. I think that mitigates the possibility of a response from the government. Avoid personal attacks, particularly on government ministers. That’s just asking for trouble. The Banerji case suggested there’s immense protection that comes in doing these things anonymously. Again, that is not a desirable state of affairs. Until there’s more clarity of anonymous communication could be the way to go.

In the private sector, as I said, it’s a little bit different, but I think avoiding issues that are relevant to the employer are helpful. Again, I mean to contribute substantively to debate rather than generating controversy, and saying, things that just in flight rather than actually are of substantive merit.

Genevieve: Now, Kieran, what if you are the HR practitioner on whose desk this mess lands. What would you advise them if they’re facing the free speech issue in their workplace with either an employer or an employee?

Kieran: I think I’d say tread very carefully and consider getting legal advice. I’d be mindful of what was said by Justice Finn in an important case of McManus. He said that when any extension is made to the supervision allowed an employee over the private activities of an employee, it needs to be carefully contained and fully justified. I think employers really need to tread carefully in this issue and avoid overreach into the private lives of their employees.

I think what we see often in this instance is the Barbra Streisand effect, where terminating an employee for their comments only use the additional platform to those comments and blows the issue out of proportion. I think cool heads should prevail here. When they don’t, and we see litigation and we see controversy, and neither side wins.

Genevieve: Or the case, we can only hope that cool heads prevail. Kieran, thanks so much for your time.

Kieran: Thanks a lot for having me.

[music]

Genevieve: Thanks for your time, too. I’m Genevieve Jacobs. We’ve been discussing whistleblowers and free speech in the workplace with legal advisor, researcher, and journalist Kieran Pender. Look for us online at hrbreakfastclub.com.au. We have a series of conversations with HR people and lawyers about current issues in the HR and employment field. If you’d like to ask some questions, suggest an idea or perhaps offer yourself up as talent for the series, we’d love to hear from you.

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