Whistleblower Protection Authority needed to fix system, says committee

By David Donaldson

Friday September 15, 2017

Australia’s whistleblower protections are “largely theoretical with little practical effect in either the public or private sectors”, a parliamentary committee has found.

Prime Minister Malcolm Turnbull agreed to implement strong whistleblower protections across all sectors, following the committee’s proposals, in a deal last year with South Australian Senator Nick Xenophon. The government promised to introduce legislation by December this year.

The committee has even recommended whistleblowers should be given monetary rewards for providing information that leads to a successful legal case. 

In a report published this week, the federal Joint Parliamentary Committee on Corporations and Financial Services argued that the current system is not working, due to “the near impossibility” under current laws of:

  • protecting whistleblowers from reprisals (ie retaliatory action);
  • holding those responsible for reprisals to account;
  • effectively investigating alleged reprisals; and
  • whistleblowers being able to seek redress for reprisals.

One of the committee’s main recommendations is the establishment of a Whistleblower Protection Authority “that can support whistleblowers, assess and prioritise the treatment of whistleblowing allegations, conduct investigations of reprisals, and oversight the implementation of the whistleblower regime for both the public and private sectors.”

It would be established in “an appropriate existing body” and have the ability to investigate and make recommendations regarding criminal action to the Australian Federal Police or a prosecutorial body, as well as investigating and oversighting non-criminal proceedings. It would also be able to provide a wage replacement for whistleblowers suffering adverse action or reprisals.

The authority would also provide annual reports to Parliament.

This reform would see the public sector whistleblower protection functions move from the Commonwealth Ombudsman to the new agency.

Bounties for useful information

The committee’s endorsement of a stronger whistleblower system has been called a “historic step” towards Australia achieving higher confidence in our integrity and institutions by one of Australia’s top integrity experts, Professor AJ Brown, who also made submissions to the inquiry.

Compensation obtainable by a whistleblower through a tribunal system would be uncapped.

The law would be changed so that former public servants, as well as current and former contractors, are able to make public interest disclosures.

Adopting an idea from the United States, the report suggested Parliament consider allowing courts to award whistleblowers with a percentage of the penalty imposed against the whistleblower’s employer. The exact amount would be determined by Parliament, but would vary according to the role played by the individual whistleblower.

The committee believes the ‘good faith’ test should not be a requirement for protection, but that whistleblowers should have “reasonable belief” of the existence of disclosable conduct.

The committee recommends updating the public sector’s Public Interest Disclosure Act and bringing all private sector whistleblower legislation into the one act, but notes that Greens and Labor MPs would prefer a single piece of legislation covering both sectors.

It also recommends the Commonwealth, states and territories work together to harmonise whistleblower legislation across the country.

Where a whistleblower discloses a protected matter to an Australian law enforcement agency, that agency would have to provide regular updates to the whistleblower as to whether or not it is pursuing the matter, including where it transfers the matter to another law enforcement agency.

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