Australians looking to expose wrongdoing need to navigate a complex legal minefield, with significant developments changing how people blow the whistle.
In the latest legal precedent set in 2025, whistleblowers can use information unveiled in legal discovery — when both sides of a case disclose confidential documents to the other for evidence in a trial — to make a public interest disclosure.
A public interest disclosure is a protected complaint under whistleblowing laws that shields a person from defamation, breach of non-disclosure agreements, reprisals, or criminal prosecution.
The Human Rights Law Centre's intervention in the case of an ABC whistleblower fighting the public broadcaster in court determined that whistleblower immunity extended to confidential court documents when making a public interest disclosure to expose wrongdoing.
The centre's acting senior lawyer, Anneliese Cooper, welcomed the outcome earlier this month as a positive step forward.
"However, this novel and technical judgment demonstrates the difficulties whistleblowers face when navigating complex whistleblowing laws in Australia," Cooper said.
"Too many people who blow the whistle in Australia face reprisals due to loopholes, exceptions and prescriptive requirements in Australia's whistleblowing laws."
Government urged to strengthen protections
Cooper called on the federal government to strengthen whistleblower protections, including an independent whistleblower protection authority.
"Whistleblowers are key to accountability and transparency in our institutions. They should be protected, not punished, for doing the right thing and speaking up in the public interest," she said.
It follows a separate legal ruling that determined whistleblowers gathering evidence ahead of a public interest disclosure weren't protected by immunity clauses in the laws.
Essentially, immunities don't kick in until after a disclosure is made, and so people can be prosecuted for actions leading up to their complaint.
Transparency advocates argued the ruling in Richard Boyle's case had a chilling effect on whistleblowing as it hampered people from gathering evidence to support their claims of wrongdoing.
Boyle pleaded guilty in May to disclosing protected information, making a recording of protected information and recording private conversations after a lengthy court battle following his exposure of predatory collection practices by the Australian Tax Office.
Boyle escaped jail time after a deal with prosecutors.
In September, the attorney-general outlined a second tranche of whistleblower protection reforms, including proposals to establish an independent ombudsman to support complainants and to expand support networks, so that people can now legally disclose information to lawyers, doctors, psychologists and unions without breaching the law.
Transparency advocates argue the ombudsman lacks the powers and scope of a dedicated whistleblower-protection authority.
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