Whistleblower Legislation

Public Sector Laws

The first whistleblowing acts were legislated in 1993 by South Australia and the Australian Capital Territory, followed by New South Wales in 1994. Since then, all states, territories, and the Commonwealth have established whistleblowing systems for public officials, contractors, and others.

All public interest legislation makes reprisals or detrimental action a tort or civil wrong, allowing for civil claims in damages for injury or loss suffered as a result of reprisals. Some jurisdictions, including Queensland, Tasmania, the ACT, and NT, also allow for exemplary damages.

Most systems allow applications for injunctive relief to restrain an employer from taking further detrimental action, though there are differences in who may bring such applications.

You need only google the 'Public Interest Disclosures Act' in your state or territory to locate a copy to check on its operation, reach and relevance. Every state and territory government provides a copy on their website, for example:

• NSW: https://www.legislation.nsw.gov.au/#/view/act/1994/92
• Commonwealth: https://www.legislation.gov.au/Details/C2013A00133
• Alternatively: http://www.austlii.edu.au/

An application for injunctive relief is not straightforward. Consider the case of ACD13 and obtain specialist legal assistance upfront. Learn more about the challenges.

Corporate or Private Sector Laws

The Treasury Laws Amendment (Enhancing Whistleblower Protects) Act 2019 consolidated existing provisions under Part 9.4AAA of the Corporations Act 2001, creating a system for whistleblowers to make PIDs internally and externally to authorities like ASIC and APRA.

This corporate system is modeled on public sector laws and includes the opportunity to seek injunctive relief against employer reprisals. However, internal protections are often inadequate, as the process is designed to keep disclosures in-house.

For better protection, whistleblowers should consider sending disclosures to regulators like ASIC or APRA, which provides greater protection and the ability to approach media if no action is taken internally.

The legislation is available at: https://www.legislation.gov.au/Details/C2017B00259

The website for the Australian Securities Investment Commission (ASIC) provides information and guidance for those considering blowing the whistle on corporate wrongdoing: ASIC Whistleblower Protections

Overarching Commonwealth Legislation

The "adverse action" provisions under Part 3-1 of Chapter 3 of the Fair Work Act 2009 provide protective measures for employees who are entitled to the benefit of PID legislation or have a role or responsibility that allows them to make complaints or inquiries.

These provisions include the right to claim damages for injury or loss caused by "adverse actions" (reprisals). This jurisdiction is known as a "no costs" jurisdiction, meaning you generally won't be liable for the other side's legal costs if you lose.

The Act can also apply to state employees where the relevant state has ceded its authority to the Commonwealth. Anyone considering this avenue should check with the Fair Work Commission about applicability.

Refer to section 340 of the Fair Work Act 2009 for the 'adverse action' provisions: http://www.legislation.gov.au/Details/C2018C00512

Human Rights Laws

The Australian Capital Territory (ACT), Victoria, and Queensland have enacted human rights laws that differ in approach but offer potential as protective devices against reprisals for whistleblowers.

For example, section 16 of the ACT Human Rights Act 2004 indicates that everyone has the right to hold opinions without interference and the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds.

The Victorian Charter of Human Rights and Responsibilities Act 2006 is in similar terms, but sets out the duties and responsibilities that attach to the right.

Queensland's Human Rights Act 2019 is the most broad and far-reaching human rights legislation to date, protecting 23 fundamental human rights drawn from international human rights law, including freedom of expression and taking part in public life.

Other Protective Laws

Most if not all of the investigative authorities, like the Ombudsman, the ACCC and ASIC, the Audit Office and anti-corruption bodies like the New South Wales ICAC or Victoria's IBAC provide some form of protection for whistleblowers who assist with their inquiries or act as witnesses. Check with the relevant authority and ensure that any assurance given in return for your assistance is in writing.

The Evidence Amendment (Journalists' Privilege) Bill 2010, which amended the Evidence Act 1995, became law in April 2013. All other state and territory jurisdictions have followed suit. They provide essentially that if a journalist has promised not to disclose a whistleblower's identity, then neither the journalist nor their employer is compelled by law to answer any question or produce any document that would disclose the whistleblower's identity.

The amendment is referred to as Wilkie's 'shield laws' after independent MP Andrew Wilkie, who introduced the changes. He maintains that every member of the community has the fundamental right to free speech, and sometimes the exercise of that right needs to be undertaken anonymously, especially when it comes to people speaking out about official misconduct.

External Regulators

There is nothing to stop you blowing the whistle directly to an external regulator, although you need to understand that there is no protection on offer, other than what little they provide as a witness.

External regulators include the audit office, ombudsman, independent commissions against corruption, and the law enforcement and integrity commission in your state or territory. Federal agencies include the crime commission, ASIC, APRA, ATO, AUSTRAC, and the Australian Charities and Not of Profit Commission (ACNC).

External regulators also include the media, politicians, parliamentary committees of inquiry, and royal commissions. Disclosures can be anonymous and/or confidential or through an agent depending upon your capacity and purpose.

Common Law Claims

Legislated or statutory claims for loss and injury in employment have largely superseded common law claims, except where the whistleblower has an annual rate of earnings in excess of the 'high income threshold' as set under state and federal industrial laws.

Common law claims rely on a wide body of court decisions or precedents built up over time.

Legal Precedent and History

One of the first whistleblower cases to decide an employer had a duty to support and protect whistleblowers was the decision in Wheadon v The State of NSW (unreported, DC [NSW], Cooper J No. 7322/88, 2 February 2001), which came out of the NSW Wood Royal Commission into police corruption in the 1990s.

The court found that the NSW Police had failed to conduct a proper and adequate investigation of Wheadon's disclosures or the allegations made against him, failed to provide pro-active protection, and failed to support and provide guidance and assistance and failed to assure him that he had done the right thing.

A breach of duty was defined to mean a common law 'tort' or 'wrong' for which injunctive relief and/or damages for injury and loss may be sought in equity in courts of competent jurisdiction. This decision played its part in shaping whistleblower's rights and remains a milestone even today.

For assistance in searching relevant precedents, visit: http://www.austlii.edu.au/

Codes of Conduct

Each state and territory government has legislated a public service code of conduct. The Corporations Act 2001 achieves the same thing in the private sector, by requiring corporations above a certain size to have a whistleblowing policy as approved by ASIC.

One way or another they all require an employee to be loyal and to work collaboratively to achieve the best results for the community "and" the employer, which immediately opens up a space for differing ideas, where the potential for wrongdoing exists. Employers rarely see it that way.

Some codes require you to report wrongdoing. But none of them explicitly identify whistleblowing as an act of loyalty to the wider community, over the self-interest of a duplicitous, even criminal employer. Until they do, codes of conduct will remain a threat to a whistleblower and the public's interest in achieving honest, open, and accountable governance in both sectors.

Criminal Liability for Blowing the Whistle

The national intelligence and security laws criminalize blowing the whistle on offenses committed for or by the government, which it invariably claims would threaten the national security and/or commercial interests. Penalties for breaching these laws range from 5 to 15 years imprisonment for standard offenses, stretching to 20 years for aggravated offenses.

The government or government agency can declare any crime that they commit to be a security matter, allowing them to secretly try and jail anyone who exposes the wrongdoing. The person on trial or in jail may not be allowed to tell even relatives that they are on trial or in jail.

To date there is no 'public interest defense' available to argue against the criminal, institutional, and political protection of criminal offenses, or standing to have set aside any prosecution brought to conceal a crime to avoid political embarrassment and accountability.

These laws also wrongly criminalize journalism by making the receipt, handling, and publication of the alleged criminal offense a crime. Until the 'shield laws' are amended to close this gap, public interest journalism and their sources are at serious risk of jail time.