Australia – Whistleblowing Protection, Overview

*Update* – Criminalisation of Journalism (See below)

1. Federal

On July 15 2013 the Public Interest Disclosure Act 2013 (Cth) received assent into Australian law.

Until Andrew Wilkie MP introduced the Wilkie Bill in November 2012, protection afforded to whistleblowers in the Commonwealth public sector was contained in section 16 of the Public Service Act 1999 (Cth). This protection was completely out of step with international best practice, progress made in various states and territories around Australia, and the recommendations of the Report of the Inquiry into Whistleblowing Protection within the Australian Government Public Sector (Dreyfus Committee / Dreyfus Report).

Concurrently, the current Federal Government was preparing the Government Bill and released a draft copy in March 2013. Blueprint was integral in process of making submissions and criticism to the Bill when it was tabled.

The Act subsequently successfully passed both houses of the Australian Parliament in June 2013.

Blueprint strongly supported the passage of this Bill into law, but there remains room for improvement when the review takes place in two years time.

For the full text of the Act, see – http://www.comlaw.gov.au/Details/C2013A00133 .

A          Positive steps forward

The Act has taken the following positive steps in ensuring that Australia will offer world-leading protection for whistleblowers:

  • It is now easier to make a disclosure externally as a whistleblower will be protected in circumstances where they honestly believe on reasonable grounds that an investigation was inadequate and can therefore release the information externally (i.e. to the media). The amendment to the previous test is important because previously it was merely an objective test, creating a very risky decision for the whistleblower.
  • It is now possible to disclose information directly to the whistleblower’s supervisor, rather than having to seek out the ‘disclosure officer’ of the department. This makes a disclosure much easier and possible through safe and trusted channels.
  • The test in Section 11 is improved by adding ‘knowingly’ to ‘false and misleading statements’ in a disclosure, so that unintentional false information disclosed by a whistleblower does not affect their level of protection.
  • When seeking to enforce their rights under the Act (i.e. if a whistleblower is seeking protection for reprisal taken against them, the costs of that action (even if they lose) are now only payable by the whistleblower where action is brought vexatiously.
  • The Act allows a whistleblower to seek remedies under the Fair Work Act 2009 (Cth), including where a whistleblower was unfairly dismissed or had adverse action taken against them. This allows a whistleblower access to these working provisions and the forum of the Fair Work Tribunal to enforce their rights.
  • Where an internal disclosure is given to a supervisor or a disclosure officer for investigation, the identity of the discloser may only be passed on where the discloser consents to be revealed as such. This assists in allowing a whistleblower to protect their anonymity where they so desire (see Act 44).
  • There will be a review in 2 years which will assist in ironing out the below issues, once the Act can be seen in operation and the further plugs necessary can be filled.

B           Other key provisions of the Act

In addition to the improvements listed at (3) above, the Act is world leading in many other respects:

  • Whistleblowers, where they have disclosed internally in the first instance and received an inadequate response, are still protected should they disclose information externally.
  • Compensation and remedies under the Act are world leading and follow the practice of the UK by firmly integrating these provisions into Federal employment law.
  • The application of the Act extends to contractors of the government so that any wrongdoing witnessed in PPPs (public/private partnerships) will be covered for disclosure.
  • The Act achieves a healthy balance between protecting whistleblowers once they have made a disclosure and ensuring that proper integrity systems are put in place to prevent wrongdoing before it occurs.

C           Room for improvement

The Act, whilst world-leading legislation, has room for significant improvement. This improvement should be taken into account during the review of the legislation to take place in two years time.

(a)         External disclosure

  • Although it is now easier to go externally (as noted above), i.e. the discloser honestly believes on reasonably grounds that the investigation into a disclosure was inadequate, an internal disclosure is still always necessary. This does not reflect a reality where in some cases it is simply dangerous or unreasonable to disclose internally in the first instance.
  • If the internal disclosure’s investigation includes an action taken by a Governement Minister, the Speaker of the House of Representatives or the President of a Senate, the investigation is taken ‘not to be inadequate’ to the extent that the response involves action that has been taken by them. This limits the discretion of the whistleblowers where they still believe it should be disclosed externally and if they still choose to do so, will lose the protection of the Act.
  • Clause 26(1) Item 2(e) has not been omitted – the Section provides that an external disclosure is not, on balance, contrary to the public interest. The public interest requirement was omitted from (f) (i.e. not more information than is necessary to release in the public interest, but this is not really enough). This Section creates a double public interest test for the whistleblower and only increases confusion and risk.

(b)        Inappropriate exceptions

  • The actions of politicians are not covered by the Act.
  • The actions and information of intelligence agencies are not able to be disclosed externally, under any circumstances, even where the public interest in their disclosure outweighs any other considerations (such as secrecy, national security, and etc.)

(c)         Other areas for further improvement

  • The Bill committees did not consider qui tam remedies (remedies where a whistleblower is provided with financial incentive to disclosure information that leads to great savings for the public purse).
  • Only current public officials may make a disclosure. A past official with relevant information (who may even have quit as a result of witnessing the wrongdoing) will not be protected by the Act.
  • The committee did not consider establishing a whistle blowing advisory service, which would assist a potential whistleblower in navigating the sometimes complicated provisions in the Act.
  • Politicians are still not authorised recipients of disclosures (Section 34 only amended to include supervisors).

Journalistc context

In March 2011, the Commonwealth parliament passed the Evidence Amendment (Journalist’s Privilege) Bill 2010 (Cth) which amended the Evidence Act 1995 (Cth).

Corporate context

The Corporations Act 2001 (Cth) (Corporations Act) includes whistleblowing protections for people who whistleblow to Australian Securities and Investments Commission (ASIC) concerning suspected breaches of the Corporations Act. Part 9.4AAA prevents victimisation against the whistleblower and allows the whistleblower immunity from prosecution and any contractual claim that might arise as a result of the disclosure. Further, if a person is convicted of victimising a whistleblower, the Corporations Act provides that the victimiser must compensate the victim.

D        Criminalisation of Journalism

In October 2014, the Commonwealth parliament passed the National Security Amendment Bill (No 1) 2014 (Cth) (Natsec Bill). Among many encroachments on freedom of speech generally, the most concerning element of this new law is the introduction of penalties for the disclosure or reporting on ‘Special Intelligence Operations’ (SIO) conducted by ASIO. An SIO is an operation conducted where those participating are immune from civil and criminal liability for conduct occurring during the course of that operation (with some minor exceptions). The labelling of a particular intelligence operation as an SIO is not subject to parliamentary or judicial oversight.

The laws creates a criminal offence for anyone disclosing or reporting on disclosed material that relates to an SIO, attracting a 5 year jail term (10 years if the reporting was reckless). The consequences of this are significant. Firstly, it creates a chilling effect both for whistleblowers and journalists reporting on information potentially in the public interest. Additionally, as Blueprint argued in its submission to the Parliamentary Joint Committee on Intelligence and Security, it also potentially criminalises Members of Parliament discussing with each other the nature of that information. Implicitly, it may also permit an intelligence officer to lie to a court if that lie was to protect information about an SIO.

Notwithstanding the already very restrictive regime for making public interest disclosures in the intelligence and security sector, this legislation further restricts whistleblowing and will have a chilling effect on freedom of speech in Australia.

For a link to the amending Act, see – http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F3361366%22

2. ACT

Previously, the Act was regulates by the Public Interest Disclosure Act 1994 (ACT). In 2012, the Act parliament passed the Public Interest Disclosure Act 2012 (ACT). The Act extends the reforms enacted in Queensland and New South Wales and makes it easy for whistleblowers in the public service (or contractors of the public service) to report corruption or maladministration to the media.

Section 14 provides that “anyone” may make a public disclosure and section 7 defines public disclosure as following:

  1. For this Act, a public interest disclosure—
    1. is a disclosure of information by a person about disclosable conduct that—
      1. the person honestly believes on reasonable grounds tends to show disclosable conduct; or
      2. tends to show disclosable conduct regardless of whether the person honestly believes on reasonable grounds the information tends to show the conduct; and
    2. includes any assistance given by the discloser during an investigation of the information mentioned in paragraph (a).
  2. However, a public interest disclosure does not include a disclosure of information by a person—
    1. that the person knows is false or misleading; or
    2. that relates entirely or in substance to a disagreement in relation to a policy about amounts, purposes or priorities of public expenditure.

Note If a disclosure is not a public interest disclosure, the person disclosing the information is not protected under this Act and there is no obligation under this Act for an entity to investigate the disclosure.

Section 16 sets out how a public interest disclosure takes place:

  1. A public interest disclosure may be made—
    1. orally or in writing; and
    2. anonymously; and
    3. without the discloser asserting that the disclosure is made under this Act.
  2. If a public interest disclosure is made orally to a person mentioned in section 15 (1), the person must make a written record of the disclosure.

To whom can information in the public interest be disclosed?

The meaning of a ‘disclosure officer’ is found in section 11 of the Act:

  1. For this Act, a disclosure officer for a public interest disclosure is any of the following:
    1. for a disclosure that relates to an ACTPS entity—
      1. the commissioner; or
      2. the head of service; or
      3. the auditor-general; or
      4. the ombudsman; or
      5. the head of an ACTPS entity; or
      6. a person declared under subsection (2) for an ACTPS entity;
    2. for a disclosure that relates to a Legislative Assembly entity—
      1. the clerk of the Legislative Assembly; or
      2. the auditor-general; or
      3. the ombudsman; or
      4. a person declared under subsection (2) for a Legislative Assembly entity.
  2. The head of a public sector entity must declare at least 1 person tobe a disclosure officer for public interest disclosures for the entity.
  3. A declaration is a notifiable instrument.

What are the remedies?

The remedies and protections available for whistleblowers are contained in Part 7 of the Act. They include:

  • Section 35 – immunity from liability;
  • Section 36 – protection from defamation action; and
  • Sections 40 and 41 – prohibition on, and damages for, detrimental action taken against the whistleblower.

A link to the Act can be found here: http://www.legislation.act.gov.au/a/2012-43/current/pdf/2012-43.pdf.

3. New South Wales

Protected Disclosures Act 1994 (NSW) and amendments as at 16 November 2011 can be found here: http://www.austlii.edu.au/au/legis/nsw/consol_act/pida1994313/. The wording is similar if not identical to the wording in Queensland for the most part.

The amendments in 2011 added the following:

  • Changes the presumption of knowledge on the part of the whistleblower to an “honest belief” in the thruthfulness of the legislation.
  • Section 12A- 12D step out separate out disclosure regimes for the police, local government, officers of the ICAC inspector (subject to a separate bill In fact) and disclosures to the information commissioner.

4. Northern Territory

N/A

5. Queensland

The Public Interest Disclosure Act 2010 (QLD) came into force in September 2010 replacing the Whistleblowers Protection Act 1994 (Qld). It was heralded in the press as the most progressive whistleblowing regime in the world, surpassing the UK which was commonly held to offer the most protection to whistleblowers. The new Queensland Act introduced the following features:

  • A public official will be protected when blowing the whistle to a journalist in circumstances where they have attempted to blow the whistle to an official authority (depending, for example, on which department the public official works for) and:
    • That authority decides to ignore the whistleblowing; or
    • That authority does investigate, but decides not to pursue further action; or
    • That authority does not tell the whistleblower if anything has been done within 6 months of the whistle being blown.
  • It was the first time that a public official was expressly protected for disclosures to the media.

6. South Australia

Whistleblowers Protection Act 1993 (SA)

As this Act offers nothing in addition to the more progressive regimes at the Federal Level, and in Queensland, WA and NSW there is no need for the purpose to examine it in any great depth.

A link to the Act can be found here: http://www.austlii.edu.au/au/legis/sa/consol_act/wpa1993322/

7. Tasmania

Public Interest Disclosures Act 2002 (Tas).

As this Act offers nothing in addition to the more progressive regimes at the Federal level, and in Queensland, WA and NSW there is no need for these purposes to examine it in any great depth.

However, there are two interesting provisions on the continued protection of public officers should they cease being employed by a public authority and the extension of the application of the Act to government contractors.

A link to the Act can be found here: http://www.austlii.edu.au/au/legis/tas/consol_act/pida2002313/.

8. Victoria

Whistleblowers Protection Act 2001 (Vic)

This Act is extremely convoluted and deals less effectively and less powerfully with the provisions in the Queensland, WA and NSW acts.

However, there are provisions that relate directly to the police force which are anomalous and for that reason, they are extracted below. However, in best practice legislation, there is no reason that careful drafting which includes the police force as a ‘public authority’ wouldn’t cure this problem.

This Act may be found here: http://www.austlii.edu.au/au/legis/vic/consol_act/wpa2001322/.

9. Western Australia

In October 2012, amendments to the Public Interest Disclosure Act 2003 (WA) (WA Act) were passed by the Western Australian government.  Amendments were also made to the Evidence Act 1906 (WA) to include a shield law for journalists.

A link to the Act can be found here: http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_767_homepage.html .

The important amendment to the WA Act was creating the ability for a whistleblower to disclose to a journalist (Section 7A of the Act) is the proper authority:

(a) has refused to investigate, or has discontinued the investigation of, a matter raised by the disclosure; or

(b) has not completed an investigation of a matter raised by the disclosure within the period ending 6 months after the disclosure was made; or

(c) has completed an investigation of a matter raised by the disclosure but has not recommended the taking of action in respect of the matter; or

(d) has not complied with section 10(1) or (4), if applicable, in relation to the disclosure.

This is a very important step and reflects a reality which is that it is not always most effective (or indeed safe) for a whistleblower to seek action for their wrongdoing in the making of an internal disclosure.

Last Modified: 20 November 2014.