New whistleblower laws protect public servants who go to press, but T&Cs apply

By Shannon Jenkins

January 31, 2020

Adobe Stock

Reforms to Victoria’s whistleblower legislation which grant public servants more protection and flexibility when making public interest disclosures have come into effect.

The changes support those who disclose improper or corrupt conduct and help agencies that investigate disclosures, according to the Victorian Public Sector Commission.

The new legislation, effective January 1, sets out a lower threshold for making a public interest disclosure to the state corruption watchdog — the Independent Broad-based Anti-corruption Commission.

IBAC lawyers Philip Hill and Sophie Molyneux noted that the new provisions would allow someone to disclose a complaint to a third party, including a journalist or a member of parliament, and retain protections under the Public Interest Disclosures Act, so long as there has been a specified period of inaction.

“This provision applies where a complaint has been determined to be a public interest disclosure and the investigating entity has subsequently not provided information on progress in certain circumstances,” they said.

“These new provisions empower disclosers where the investigation of a complaint is unjustifiably delayed, and ensures greater accountability and transparency within the integrity system.”

The legislation states an external disclosure can be made if:

“… the person has not been notified by the investigating entity about any action taken in relation to the original disclosure within six months after being notified that the original disclosure has been determined to be a public interest complaint; and the person has requested advice on the progress of the public interest complaint from the investigating entity and has not received a response within 30 days after that request.”

The definition of “improper conduct” has been expanded, and a “protected disclosure” is now called a “public interest disclosure”.

There is also a new “no wrong door” principle, which means that if a person discloses to the wrong entity, that entity can send it to the right one. The person won’t lose their protection, so long as it’s an entity that can receive disclosures, and the person believes the entity they disclosed to was the right one.

The corruption watchdog said the changes aimed to better accommodate and encourage disclosures about wrongdoing in the public sector, and has been working with departments and agencies to help them interpret the changes.

“These changes affect how improper conduct and corruption in the Victorian public sector can be reported, and the protections available to those who report,” it said.

“It’s important public sector bodies have adequate policies, procedures and systems for staff to make a disclosure, and for receiving, assessing and safely handling disclosures.”

It noted that research showed Victorians feared victimisation if they reported suspected corruption, and the new legislation aimed to address that.

“Public sector agencies can build a willingness to report wrongdoing through positive, affirming messaging to staff and all portfolio agencies, valuing those who come forward.”

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