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Whistleblower protections: what you need to know

To little fanfare, the Public Interest Disclosure Act 2013 (Cth) took effect in January. It provides, for the first time, stand-alone federal protections for public sector whistleblowers, and establishes mechanisms for handling disclosures. As the legislation is less than a year old, it is difficult to judge its effectiveness, and there is also little case law to illustrate the statutory scheme’s practical application. Thankfully, however, the act itself is relatively straightforward.

The legislation came in response to a parliamentary committee report, which addressed the need for a comprehensive whistleblower protection scheme in the Commonwealth public service. As was noted in the second reading speech, until the introduction of this legislation the Commonwealth was “the only Australian jurisdiction that does not have legislation dedicated to facilitating public interest disclosures and protecting those who make them”.

To start with, the statute affords two-pronged protection for disclosers: a shield and a sword. Section 10 provides a strong layer of armour: namely, that a discloser has immunity from civil, criminal or administrative liability and absolute privilege in defamation proceedings. In sum, so long as the discloser is not knowingly making a false or misleading public interest disclosure, they receive almost total protection from litigious recrimination.

The sword element is just as powerful: if a person “takes a reprisal” causing detriment against the discloser, and that act or omission is motivated partly or wholly by the disclosure, the affected party can seek compensation or an injunction in the federal courts. Moreover, taking such a reprisal — or even threatening to do so — constitutes a criminal offence, with a penalty of two years imprisonment and/or 120 penalty units (currently $20,400).

What then is a public interest disclosure, and what needs to be done when one is made?

The act provides various definitions of disclosure, with requirements primarily dependent on the type of disclosure. For example, if the disclosure is made internally to an authorised internal recipient or supervisor, the only prerequisite is that “the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct”. If, on the other hand, the disclosure is made externally (for example, to a journalist), further criteria — such as “the disclosure is not, on balance, contrary to the public interest” — may limit the application of the legislation.

The act then proceeds to detail a range of disclosable conduct, which is conduct engaged in by an agency, public official or contracted service provider that, among other things:

  • Contravenes Commonwealth, state or territory law;
  • Perverts the course of justice;
  • Constitutes maladministration;
  • Results in the wastage of public money;
  • Unreasonably results in a danger to health and safety;
  • Involves a public official abusing their position; or
  • Could, if proved, give reasonable grounds for disciplinary action.

Once a public interest disclosure is made, the legislation provides for its allocation to a particular officer, and then mandates that the officer “must investigate a disclosure”, barring certain limited exceptions. An investigation report must be completed within 90 days after allocation, except where an extension of time is granted by the Ombudsman.

To illustrate with a hypothetical, say, for example, an employee of the Australian Tax Office became aware that a contractor was deliberately taking far longer than necessary to complete a certain task, and this was condoned by a manager for some ulterior motive. If the employee had reasonable grounds for that belief and proceeded to make a disclosure to their immediate supervisor, then they would be protected by the legislation even if an investigation concluded there was insufficient evidence to support the allegations. If the manager later attempted to dismiss the employee to “get even”, the employee could seek an injunction or compensation, and even seek to refer the matter for prosecution.

However, if the employee was to go straight to the media with their allegation, they would likely receive no protection. Even in the case of emergency disclosures where there is a risk of substantial and imminent danger, an external disclosure is only protected to the extent that the information disclosed “is no greater than is necessary to alert the recipient” to that danger.

Openness and transparency are virtues that need little justification. As was noted during the parliamentary debate on this legislation, “whistleblowing is an important check on public administration which needs to be allowed, even encouraged”. Too often, though, misdeeds are hidden in the dark because the risks of speaking out are too great. These new whistleblower protections aim to provide a partial cure.

Distinguished American Supreme Court justice Louis Brandeis once observed: “Sunlight is said to be the best of disinfectants.” Even if just a small measure, the Public Interest Disclosure Act will hopefully allow some sunlight to shine on the public service and protect those who open the curtains.

Author Bio

John Wilson

John Wilson is the managing legal director of Bradley Allen Love in Canberra and an accredited specialist in industrial relations and employment law. He has twice appeared on the Best Lawyers list, and has an extensive public sector employment practice.