Whistleblower protections: what you need to know

Recently introduced legislation provides a protected avenue for the making of public interest disclosures and institutes heavy penalties for any related reprisal action. Ignore at your peril.

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).

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