Whistleblower protection in Australia

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Whistleblower protection in Australia is offered for certain disclosures under a patchwork of laws at both federal and state level. Eligibility for protection depends on the requirements of the applicable law and the subject matter of the disclosure. Not all disclosures are protected by law in Australia. At federal level, whistleblowers face potential imprisonment for making disclosures about certain subjects, including national security [1] and immigration [2] matters.

Contents

Australia's first whistleblower protection laws were introduced in Queensland following the recommendations of the Fitzgerald Inquiry. [3] Laws have subsequently been introduced in other states and territories, culminating with the adoption of federal legislation with the passage of the Public Interest Disclosure Act 2013.

Australia has made significant strides in the area of whistleblower protection for the private sector, with new legislation to amend the Corporations Act. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 passed in December 2018. From 1 July 2019, the whistleblower protections in the Corporations Act have been expanded to provide greater protections for whistleblowers. This will include requiring public companies, large proprietary companies, and corporate trustees of APRA-regulated superannuation entities to have a whistleblower policy from 1 January 2020.[ citation needed ]

For the first time, private-sector whistleblowers now have greater protection than their public-sector counterparts.[ citation needed ]

Federal law

General provisions

The Public Interest Disclosure Act 2013 (PID Act) introduced a new comprehensive framework for protecting Commonwealth public sector whistleblowers. [4] The PID Act is the legislation underpinning the Commonwealth Government's Public Interest Disclosure (PID) Scheme to encourage public officials to report suspected wrongdoing in the Australian public sector. The PID Act arose in response to the report on Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector by the House of Representatives Standing Committee on Legal and Constitutional Affairs. [5] During the Committee's Inquiry it was recognised that whistleblowers play an important role in ensuring accountability. As a result, those making disclosures needed to be protected from retribution.

The PID Act offers protection to 'whistleblowers' from reprisal action. The protection applies to public officials who disclose suspected illegal conduct, corruption, maladministration, abuses of public trust, deception relating to scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment or abuse of position or conduct which may be grounds for disciplinary action.

The Commonwealth Ombudsman has a significant role supporting and monitoring the administration of the whistleblower scheme established under the PID Act. The Commonwealth Ombudsman is responsible for promoting awareness and understanding of the PID Act as well as providing guidance, information and resources about making, managing and responding to disclosures. [6]

The unauthorised disclosure of Commonwealth information is a federal crime under section 70 of the Crimes Act 1914 that carries a penalty of two years' imprisonment. [7] The provision is often used to pursue whistleblowers and leaks by federal government employees and private contractors. [8] Since the Abbott government took office, federal agencies have referred journalists from The Guardian Australia, news.com.au and The West Australian using this provision in a bid to uncover the sources for immigration stories. [8]

However, as of 2017, it was noted that whistleblower protections "had little practical effect in either the public or private sectors". [9]

National security

The National Security Amendment Act (No 1) 2014 (Cth) amended the legislation governing ASIO to criminalise the disclosure of any information relating to a "Special Intelligence Operation". [10] The Guardian noted that any act committed by ASIO could be declared a Special Intelligence Operation with the Attorney-General's approval and removed from scrutiny. [1]

Immigration law

Section 42 of the Australian Border Force Act 2015 (Cth) imposes a penalty of two years' imprisonment for a whistleblower who makes a disclosure in relation to an Australian immigration detention facility, although section 42(2)(c) exempts a disclosure where it is "required or authorised by or under a law of the Commonwealth, a State or a Territory". [11]

The Conversation considered whether the section 42(2)(c) exemption would apply so that a whistleblower could rely on the protections of Public Interest Disclosure Act 2013 (Cth). [12] It found that the exemption might indeed apply, but would do so subject to several qualifications, such as: [12]

Section 42 of the Australian Border Force Act 2015 (Cth) has been criticised by the Australian Lawyers Alliance for its potential chilling effect on whistleblowers and journalists. [2]

Medical professionals who have worked at Nauru are launching a High Court challenge against the secrecy provisions of the Australian Border Force Act 2015. [13]

Private sector

Transparency International Australia considers the protections for private sector whistleblowers to be weaker than for those in the public sector, with the main provisions found in corporations legislation that does not mandate any internal company procedures. [14]

Part 9.4AAA of the Corporations Act provides a degree of protection. [15]

State and territory laws

Apart from South Australia (but see below), the state and territory whistleblower protection laws only cover the public sector. [16]

Victoria has apparently enacted some whistleblower protections that go beyond the public sector. See the article cited in the footnote. [17]

Queensland

Protection is currently offered by the Public Interest Disclosure Act 2010 (Qld). [18] [19]

New South Wales

Protection is currently offered by the Protected Disclosures Act 1994 (NSW). [18] [20]

Australian Capital Territory

Protection is currently offered by the Public Interest Disclosure Act 2012 (ACT). [18] [21]

Victoria

Protection is currently offered by the Public Interest Disclosures Act 2012 (Vic). [22] [18]

Tasmania

Protection is currently offered by the Public Interest Disclosures Act 2002 (Tas). [18] [23]

South Australia

Protection is currently offered by the Public Interest Disclosure Act 2018 (SA). [24]

Western Australia

Protection is currently offered by the Public Interest Disclosure Act 2003 (WA). [18] [25]

Northern Territory

Protection is currently offered by the Public Interest Disclosure Act 2008 (NT). [16] [26]

See also

Related Research Articles

Whistleblowing is the activity of a person, often an employee, revealing information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe or fraudulent. Whistleblowers can use a variety of internal or external channels to communicate information or allegations. Over 83% of whistleblowers report internally to a supervisor, human resources, compliance, or a neutral third party within the company, hoping that the company will address and correct the issues. A whistleblower can also bring allegations to light by communicating with external entities, such as the media, government, or law enforcement. Some countries legislate as to what constitutes a protected disclosure, and the permissible methods of presenting a disclosure. Whistleblowing can occur in the private sector or the public sector.

<span class="mw-page-title-main">Australia Act 1986</span> Legislation by the Australian and UK parliaments

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an act of the Parliament of Australia, the other an act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling acts passed by the parliaments of every Australian state. The acts came into effect simultaneously, on 3 March 1986.

<span class="mw-page-title-main">Public Interest Disclosure Act 1998</span> United Kingdom whistleblower legislation

The Public Interest Disclosure Act 1998 is an Act of the Parliament of the United Kingdom that protects whistleblowers from detrimental treatment by their employer. Influenced by various financial scandals and accidents, along with the report of the Committee on Standards in Public Life, the bill was introduced to Parliament by Richard Shepherd and given government support, on the condition that it become an amendment to the Employment Rights Act 1996. After receiving the Royal Assent on 2 July 1998, the Act came into force on 2 July 1999. It protects employees who make disclosures of certain types of information, including evidence of illegal activity or damage to the environment, from retribution from their employers, such as dismissal or being passed over for promotion. In cases where such retribution takes place the employee may bring a case before an employment tribunal, which can award compensation.

The Australian Intelligence Community (AIC) and the National Intelligence Community (NIC) or National Security Community of the Australian Government are the collectives of statutory intelligence agencies, policy departments, and other government agencies concerned with protecting and advancing the national security and national interests of the Commonwealth of Australia. The intelligence and security agencies of the Australian Government have evolved since the Second World War and the Cold War and saw transformation and expansion during the Global War on Terrorism with military deployments in Afghanistan, Iraq and against ISIS in Syria. Key international and national security issues for the Australian Intelligence Community include terrorism and violent extremism, cybersecurity, transnational crime, the rise of China, and Pacific regional security.

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

<i>Native Title Act 1993</i> Act of the Parliament of Australia

The Native Title Act 1993(Cth) is an act of the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system". The Act was passed by the Keating government following the High Court's decision in Mabo v Queensland (No 2) (1992). The Act commenced operation on 1 January 1994.

The Federal Accountability Act is a statute introduced as Bill C-2 in the first session of the 39th Canadian Parliament on April 11, 2006, by the President of the Treasury Board, John Baird. The aim was to reduce the opportunity to exert influence with money by banning corporate, union, and large personal political donations; five-year lobbying ban on former ministers, their aides, and senior public servants; providing protection for whistleblowers; and enhancing the power of the Auditor General to follow the money spent by the government.

In Australia, long service leave (LSL) is a period of additional paid leave granted to employees who have completed an extended period of service with an employer. Under Australian law, most employees are entitled to long service leave if they work for the same employer for a prolonged length of time, the threshold usually being between seven and ten years. Long service leave is separate from annual leave; employees receiving long service leave continue to accrue annual leave as normal and, at a minimum, as prescribed by the National Employment Standards.

The Federal Accountability Initiative for Reform (FAIR) was a Canadian public interest organization and registered charity whose purpose was to support legislation and management practices that protect whistleblowers.

<span class="mw-page-title-main">Freedom of Information Act 1982</span>

The Freedom of Information Act 1982(Cth) is an Act of the Parliament of Australia which guarantees freedom of information (FOI) and the rights of access to official documents of the Commonwealth Government and of its agencies to members of the public. It was passed by the Australian Parliament on 9 March 1982, and commenced on 1 December 1982.

<span class="mw-page-title-main">Australian corporate law</span>

Australian corporations law has historically borrowed heavily from UK company law. Its legal structure now consists of a single, national statute, the Corporations Act 2001. The statute is administered by a single national regulatory authority, the Australian Securities & Investments Commission (ASIC).

Ombudsmen in Australia are independent agencies who assist when a dispute arises between individuals and industry bodies or government agencies. Government ombudsman services are free to the public, like many other ombudsman and dispute resolution services, and are a means of resolving disputes outside of the court systems. Australia has an ombudsman assigned for each state; as well as an ombudsman for the Commonwealth of Australia. As laws differ between states just one process, or policy, cannot be used across the Commonwealth. All government bodies are within the jurisdiction of the ombudsman.

The Public Servants Disclosure Protection Act came into force in Canada on April 15, 2007. The Act creates two distinct processes: a disclosure process and a reprisal complaints process. It also creates two new bodies: the Office of the Public Sector Integrity Commissioner (PSIC) and the Public Servants Disclosure Protection Tribunal.

The Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010, is uniform legislation for consumer protection, applying as a law of the Commonwealth of Australia and is incorporated into the law of each of Australia's states and territories. The law commenced on 1 January 2011, replacing 20 different consumer laws across the Commonwealth and the states and territories, although certain other Acts continue to be in force.

<span class="mw-page-title-main">Whistleblower protection in the United States</span>

A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The Whistleblower Protection Act was made into federal law in the United States in 1989.

Whistle Blowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might be in the form of fraud, corruption or mismanagement. The Act will also ensure punishment for false or frivolous complaints.

There is no absolute right to privacy in Australian law and there is no clearly recognised tort of invasion of privacy or similar remedy available to people who feel their privacy has been violated. Privacy is, however, affected and protected in limited ways by common law in Australia and a range of federal, state and territorial laws, as well as administrative arrangements.

<span class="mw-page-title-main">Australian Border Force</span> Australian federal law enforcement agency

The Australian Border Force (ABF) is a federal law enforcement agency, part of the Department of Home Affairs, responsible for offshore and onshore border enforcement, investigations, compliance, detention operations and customs services in Australia. Through the ABF's Marine Unit, the ABF performs Coast Guard and marine law enforcement duties and is a component of the Maritime Border Command. The ABF is also part of the National Intelligence Community and is an active member of the World Customs Organization.

<span class="mw-page-title-main">Fair Work Act 2009</span> Australian industrial relations law

The Fair Work Act 2009(Cth) is an Act of the Parliament of Australia, passed by the Rudd government to reform the industrial relations system of Australia. Replacing the Howard government's WorkChoices legislation, the Act established Fair Work Australia, later renamed the Fair Work Commission.

Eileen Chubb is a former care assistant in the UK who became a whistleblower and then a campaigner. She has shown a particular interest in the care home sector. She has led a campaign for new legislation named Edna's Law to replace the Public Interest Disclosure Act 1998 (PIDA) to improve legal protection for whistleblowers in the United Kingdom and for an inquiry into historic whistleblowing cases. She and other whistleblowers claim that PIDA has failed. Chubb has frequently stated her opposition to the proposed Office for the Whistleblower which has been recommended by Baroness Kramer and the All-Party Parliamentary Group on Whistleblowing.

References

  1. 1 2 Paul Farrell (26 September 2014). "Journalists and whistleblowers will go to jail under new national security laws". The Guardian.
  2. 1 2 Sarah Sedghi (1 July 2015). "Border Force Act could see immigration detention centre workers jailed for whistleblowing". ABC News. Australian Broadcasting Corporation.
  3. ↑ Dadic, Zac (2009). "Whistleblower Protection and Disclosures to Members of the Queensland Legislative Assembly" (PDF). Australasian Parliamentary Review. pp. 97–113. Archived from the original (PDF) on 17 March 2012. Retrieved 20 April 2016.
  4. ↑ "Bills Digest No. 125, 2012–13: Public Interest Disclosure Bill 2013". Australian Parliamentary Library. Retrieved 20 April 2016.
  5. ↑ "Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector". House of Representatives Standing Committee on Legal and Constitutional Affairs. Retrieved 22 October 2023.
  6. ↑ "Public Interest Disclosure - Commonwealth Ombudsman". www.ombudsman.gov.au. Archived from the original on 28 February 2016.
  7. ↑ Crimes Act 1914 (Cth) s 70
  8. 1 2 Paul Farrell (22 January 2015). "Journalists reporting on asylum seekers referred to Australian police". The Guardian.
  9. ↑ Commonwealth of Australia (2017). "Executive Summary". www.aph.gov.au.
  10. ↑ "Bills Digest No. 19, 2014-15: National Security Legislation Amendment Bill (No. 1) 2014". Australian Parliamentary Library. 3 June 2013. Retrieved 20 April 2016.
  11. ↑ Australian Border Force Act 2015 (Cth) s 42
  12. 1 2 Hoang, Khanh (12 July 2015). "FactCheck: Could a whistleblower go public without fear of prosecution under the Border Force Act?". The Conversation. Retrieved 6 May 2016.
  13. ↑ "What are the secrecy provisions of the Border Force Act?". ABC News. 27 July 2016. Retrieved 27 July 2016.
  14. ↑ "Whistleblower Protection Laws in G20 Countries" (PDF). p. 24. Archived from the original (PDF) on 9 July 2019. Retrieved 22 October 2023.
  15. ↑ "Blowing the whistle: Protection for whistleblowers in Australia". KordaMentha. September 2014. p. 4. Archived from the original on 8 May 2016. Retrieved 20 April 2016.
  16. 1 2 "Whistleblowing: Some Relevant Considerations" (PDF). CPA Australia. p. 9. Retrieved 20 April 2016.
  17. ↑ "New whistleblower laws effective 1 July 2019".
  18. 1 2 3 4 5 6 "Australia – Whistleblowing Protection, Overview". Blueprint for Free Speech. 20 November 2014. Retrieved 20 April 2016.[ permanent dead link ]
  19. ↑ "View - Queensland Legislation - Queensland Government".
  20. ↑ "PROTECTED DISCLOSURES ACT 1994 No. 92" . Retrieved 22 October 2023.
  21. ↑ "Public Interest Disclosure Act 2012 | Acts".
  22. ↑ "Public Interest Disclosures Act 2012".
  23. ↑ "View - Tasmanian Legislation Online".
  24. ↑ https://web.archive.org/web/20210722184256/https://www.legislation.sa.gov.au/LZ/C/A/PUBLIC%20INTEREST%20DISCLOSURE%20ACT%202018/CURRENT/2018.26.AUTH.PDF. Archived from the original (PDF) on 22 July 2021. Retrieved 22 July 2021.{{cite web}}: Missing or empty |title= (help)
  25. ↑ "Public Interest Disclosure Act 2003" (PDF). Retrieved 22 October 2023.
  26. ↑ "Legislation Database".
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