The Courts

The courts are supposed to operate as the avenue to justice for aggrieved citizens, in Queensland for state law, and in Australia for federal law.

The costs of legal representation have long been seen as a barrier for middle and low income people to access justice by and through the Courts.

Watchdog regulators such as the Ombudsman Offices and the Offices of Public Service Commissions were supposed to return an avenue for justice for most people aggrieved by the government or by government agencies.

The alleged capture of these watchdog regulators by the agencies that the watchdog regulators were required to be ‘watching’, may have denied this avenue for affordable justice to most workers funded only by their wages and salary from employment with those same agencies.

Their unions do not normally offer adequate, if any, financial support, with the Police Union being an exception for some whistleblowers.

The temptation, then, to attempt a return to seeking justice through the courts, needs to consider, in any planning and preparation for that course of action, the following risks that are the subject of allegations by whistleblowers:

1. The evidence may be, firstly, disposed of or destroyed, lost or pretended to be lost, and secondly, populated by new ‘evidence’ manufactured for the court action;
2. The work history of the whistleblower may be scoured for any fault or error, and any such finding may then be used to argue that the disadvantage in employment at issue would have been imposed in any case because of the new findings about the person’s performance;
3. The government and/or the agency will not behave as “a model litigant” and act reasonably in the course of the adversarial proceedings, but may force the whistleblower to use separate court proceedings to achieve every step of the adversarial process. This example is one impacting on the costs of the legal proceedings to the whistleblower, amongst many other tactics that bring all kinds of stress to the whistleblower and their family.
4. The court may appoint to the bench members of the judiciary with a conflict of interest in hearing the whistleblower’s matter, and similar appointments may be made for court-directed mediation.
5. While the whistleblower’s legal proceeding may be against the actions by one person, other agency officers may claim that they are impacted by the legal proceedings and obtain standing before the court, with their own publicly funded solicitor and barrister. This raises considerably the damages to be paid by the whistleblower if the whistleblower loses the legal action. This pressure may tend to cause the whistleblower to withdraw, or to accept a small settlement which may not see justice fully met.
6. The court may send the whistleblower to mediation after the Crown has been given discovery, but before the whistleblower has been given discovery, and before any claims regarding destruction of evidence or disposal of evidence have been heard by the judge. This example is one impacting on the whistleblower’s confidence in the court, confidence in the appointment made to hear the legal action, and confidence in the judicial process and outcome, amongst other tactics from the bench that bring all kinds of cumulative stress to the whistleblower and their family.
7. The whistleblower’s lawyers may be approached by the government or agency lawyers to dissuade the whistleblower from pursuing the litigation, and the whistleblower’s lawyers may add pressure on the whistleblower to withdraw or to take a token settlement. This home lawyer pressure may arise from the impact of the whistleblower’s legal action on the lawyers’ relationship with a large provider of legal business (the government or the agency). The home lawyer pressure may also arise from a concern that biases and/or conflicts and/or mischief are already at play in the legal processes, and that previous advice on chances of success given to the whistleblower did not take into account these biases, conflicts and mischiefs. The home lawyer pressure may also arise from a genuine concern for the impacts of the accumulating stress on their client.
8. The whistleblower’s own lawyers may put the whistleblower’s case at significant risk, by, for example, demanding huge additions to their fees on a day or days before, or during, critical legal proceedings (such as an application by the government to strike out the whistleblower’s claim), or else the whistleblower will be sacked by the lawyers as their client, and the whistleblower will need to obtain a new solicitor and brief a new solicitor, in very short time, if the judicial appointee allows a postponement of the legal proceedings, or represent him/herself.

The whistleblower may face a combination of several and sometimes of all or nearly all of the above.

Parliamentary Committees also need to be aware of these types of allegations where it places reliance on the Courts to provide effective whistleblower protection.

QWAG has joined other voices, from the media, from the law, from academia and from the community, in advocating that a Royal Commission be conducted into the performance and independence of the Queensland Judiciary and of the Queensland judicial processes.

In summary, the whistleblower faces the risk of the public purse being used to the full by the government and/or the agency in defending the disclosure of suspected criminal reprisal against the whistleblower.

This explains the strategic importance to an effective whistleblowing regime of either ensuring that the watchdog regulators maintain their integrity in the investigation of allegations of criminal reprisal, and/or that civil action by a whistleblower alleging damages from prima facie reprisals also obtains the support of the public purse from the government or the agency under allegation.