The web of laws whistleblowers navigate to expose wrongdoing

The decision to bring misconduct or maladministration to public knowledge is deliberate for some. For others, like former live export veterinarian Lynn Simpson, "whistleblower" status is thrust upon them.

Her report for the Agriculture Department exposing horrific conditions for animals in transit wasn't meant for the public's eye.

Its appearance on the department's website in February 2013, where it stayed for six months, ended her veterinary career and began a cycle of reprisals and legal action that has engulfed other whistleblowers in Australia.

Dr Simpson was an accidental whistleblower of sorts, revealing livestock trampled in overcrowded pens, covered in their own faeces, unable to stand, dying of heat exhaustion and suffocation, and drinking from water troughs filled with excrement.

She receives compensation today and settled a court case against the Agriculture Department in 2017, but her ordeal isn't over. No one in the industry has employed her since the report's findings went viral.

"It sort of follows you like you've got a criminal record, but you haven't committed a crime," she says.

Dr Simpson lost touch with people afraid of reprisals if they associated with her, and during her legal case against the department, was so short of money she lived off a credit card. Her health deteriorated when she lost her job. Struggles with post traumatic stress disorder, depression and anxiety followed.

"First and foremost is it's changed my life forever, my life will never get back to what it was."

Dr Simpson didn't choose the whistleblower's life. For those weighing up more deliberately whether to disclose wrongdoing, there is a web of laws to navigate if they want protection from the kind of repercussions the veterinarian still lives with.

Debate over Australia's whistleblower laws was simmering long before AFP raids on the ABC's offices and a journalist's home threw it back into national focus.

Underlying the fears about the strength of free speech protections is an unfinished reform project that has advocates pressing for more change following a few promising earlier wins.

Despite fears for Australia's whistleblower schemes, a significant milestone slipped quietly by early this year when Australia gained new laws giving a heftier shield to anyone disclosing improper conduct in the private sector.

The federal government's new protections for private sector whistleblowers advantages those in litigation seeking compensation for victimisation. It widens the definition of disclosable conduct and extends coverage to former employees and other parties.

The reform was only part of a series of changes recommended in a 2017 parliamentary inquiry.

Falling well short of the full set of reforms urged in the committee report, it left an appetite for stronger public sector whistleblower protections that has intensified with the AFP raids.

New laws protecting private sector whistleblowers could operate where private sector employees witness "improper conduct" in a company's supply of services to government . The path for the public servant who want to expose misconduct also draws protection.

Employment lawyer at Piper Alderman Tim Lange, who advises corporate and public employers, says the scheme protecting public servants who blow the whistle requires a government body to investigate a report of wrongdoing.

It's when a whistleblower isn't satisfied with a department's internal response that public servants face a difficult decision. The public interest disclosure scheme still protects them if they disclose externally, but only if the internal investigation was inadequate and other restrictions don't apply. These include prohibitions on disclosures of intelligence services information, and disclosures to foreign officials.

Mr Lange points out that not every form of whistleblowing is justified.

For anyone asking themselves whether they're protected under the scheme when considering disclosing externally, he raises a point that could be easily forgotten.

"You'll be taking a risk that a court will disagree that the internal investigation was inadequate," he says.

"What's inadequate can be in the eye of the beholder, but it will be the court's objective view that matters and there's a real danger of a discloser misleading themselves about what was inadequate."

There are also those who wouldn't be satisfied with any internal investigation unless it led to the outcome they wanted. This kind of view might mislead whistleblowers into straying well outside the protections of the public interest disclosure scheme.

Transparency International Australia chief executive Serena Lillywhite says the Public Interest Disclosure Act also requires people to divulge "no more information...than is reasonably necessary".

"If the internal investigation into your complaint is inadequate you are also entitled to seek legal advice," she said.

"This does constitute going public, but may be a wise step to take before going to the media or a politician."

The scheme protecting public servants has its problems, according to Phillip Moss' independent review in 2016. It found the experience of whistleblowers under the Public Interest Disclosure Act "is not a happy one...The experience of agencies is that the PID Act is hard to apply."

Many experts, including Griffith University's AJ Brown, one of the country's top experts on whistleblowing laws, have voiced their concerns the government's latest reforms to protections did not go far enough.

Professor Brown's submission to a committee examining the bill highlighted the fact the government bill failed to act on 13 recommendations of another detailed, bipartisan parliamentary committee inquiry into what could have been internationally best practice laws.

Similarly, Monash University lecturer Xinning Xiao says while the laws would widen existing protections for public sector whistleblowers to many private sector workers, the changes stopped short on several fronts.

Among them, Dr Xiao says Australia still provides no financial incentive for whistleblowers, while bodies such as the United States' Securities Exchange Commission give verified whistleblowers up to 30 per cent of the sanctions collected through subsequent investigations into issues such as tax fraud.

The commission's 2017 annual report on its whistleblower program shows Australia was the third highest source of disclosures outside of the US, behind only the United Kingdom and Canada, suggesting there is likely unmet demand here for a similar system.

Dr Xiao says while the Australian government should be offering genuine whistleblowers a reward, it should also be careful not to attract potentially vexatious people or "bounty hunters", rather than those with a genuine public interest matter.

Transparency International Australia has also for some time been pushing for the new laws, which represent higher protections for the private sector than the public sector to be applied to all federal, state and territory public servants.

Ms Lillywhite also backed the need for a protection authority and compensation for whistleblowers.

"The new whistleblower protections for the private sector are a major step forward to strengthening responsible business conduct," she said.

"The devil is always in the implementation detail, though and an independent whistleblower protection authority would provide good oversight over that."

The Attorney-General's Department says the government is considering its response to the Moss Review. A report in The Australian on Friday said Attorney-General Christian Porter plans to overhaul protections for public sector whistleblowers.

For Lynn Simpson, it's only the damage her life has already sustained that has her feeling like she has free speech. She couldn't lose much more. The AFP raids still had her questioning the protections of journalists and whistleblowers in Australia.

"Why is free speech a dirty word? I thought it was really scary. It's very 1984."

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