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Whistleblowers Australia

Legislation

Public sector laws

Corporate or private sector laws

Overarching Commonwealth legislation

Human rights laws

Other protective laws

External regulators

Common law claims

Legal precedent and history

Codes of conduct

Criminal liability for blowing the whistle

 

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 and territories including the Commonwealth have legislated stand-alone acts to establish whistleblowing systems for public officials, contractors, and others.  You will need to check, because they vary in the opportunities they provide for internal and external disclosures and legal protections, which remain limited in their application and are mostly retrospective in their effect. 

Over time all jurisdictions have adopted the title of it being a Public Interest Disclosure Act and refer to blowing the whistle as making a public interest disclosure or PID and to a whistleblower as a discloser.

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 as every state and territory government provide a copy on their website, for example  for NSW and the Commonwealth refer  https://www.legislation.nsw.gov.au/#/view/act/1994/92 and https://www.legislation.gov.au/Details/C2013A00133 or alternatively http://www.austlii.edu.au/

All the public interest legislation makes reprisals or detrimental action a tort or civil wrong, to allow for a civil claim in damages for the injury and or loss suffered as a result, of reprisals.  Any remedy may be given by a court for a tort including in Queensland, Tasmania, the ACT and NT exemplary damages.  The downside is that you would be liable for the other side’s legal costs as well as your own if you lose.  Usually that means just the costs incurred between the two legal teams or ‘party party’ costs. 

Note the legal costs incurred between you and your solicitor are known as ‘solicitor-client’ costs.  Together, party party costs and solicitor-client costs are known as ‘full indemnity’ costs.

If you win you could be liable for the other side’s full indemnity costs, in circumstances where you turn down a Calderbank offer made in the wake of a failed settlement offer, which the other side maintains is more generous than any award you might win.  Refer below under ‘Strategy’ for information about settlements and make sure you understand before you proceed.

Most systems allow applications for injunctive relief to restrain an employer from taking further detrimental action.  There are differences in who may bring the application. 

For example, WA, the ACT and NT allow an authority, whistleblower and or other person to seek injunctive relief.  QLD allows a whistleblower, their union or professional body (if their rules allow) or the Crime and Corruption Commission to apply.  In NSW only an investigating or other public authority may apply with the approval of the Attorney General. Under Commonwealth corporate and public sector legislation only a whistleblower may apply.  So please check – as unions usually cannot, and regulators usually will not, fund these cases.

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

https://www.abc.net.au/news/2019-06-12/whistleblower-laws-are-impenetrable-federal-court-judge-says/11200678 and https://.www.judgments.fedcourt.gov.au/judgments/fca/single/2019/2019fca0548

The Ombudsman in each state and territory provides information and some guidance for those considering blowing the whistle on public sector wrongdoing.

For example https://www.ombo.nsw.gov.au/news-and-publications/publications/guidelines/public-interest-disclosures and

http://www.ombudsman.gov.au/Our-responsibilities/making-a-disclosure

Corporate or Private Sector Laws

The Treasury Laws Amendment (Enhancing Whistleblower Protects) Act 2019 brought together existing provisions (in the treasury, taxation, banking and financial services sectors) under Part 9.4AAA of the Corporations Act (Cth) 2001 to provide a system for whistleblowers to make ‘public interest disclosures’ (PIDs) internally to prescribed Commonwealth authorities and externally to the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA).  The protective provisions are limited in their application and are mostly retrospective in their effect.  Refer https://www.legislation.gov.au/Details/C2017B00259 and or http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/

The corporate system is modelled on the public sector laws (refer above) and include the opportunity to seek injunctive relief to restrain an employer from taking reprisals, as defined by the act.  There is no caselaw to date other than the decision in the ACD13 case (refer link under Public Sector laws).

Ordinarily if you lose you will only be liable for the other side’s party party costs.  If you win you could be liable for their indemnity costs if you have previously, refused a Calderbank offer, which turns out to be better than what the court awards: refer information under public sector laws. 

The internal protections are inadequate and largely imaginary, as the process is designed to keep the PID in-house, away from regulators and or the public.  Learn to work the system by sending the disclosure to ASIC and or APRA as well, because it provides the greatest protection and the ability to go to the media if no action is taken internally about the disclosure.  ASIC, APRA and most corporate whistleblowing policies fail to mention this fact.

The website for the Australian Securities Investment Commission (ASIC) provides information and some guidance for those considering blowing the whistle on corporate wrongdoing.  https://asic.gov.au/about-asic/asic-investigations-and-enforcement/whistleblowing/protections-for-corporate-sector-whistleblowers/

Overarching Commonwealth legislation

The ‘adverse action’ provisions under Part 3-1 of Chapter 3 of the Fair Work Act (Cth) 2009 provide protective measures for employees, who are ‘entitled to the benefit’ of say the PID legislation, or have ‘a role or responsibility’ for example as an auditor or OH&S officer under a workplace law, workplace instrument or order made by an industrial body that entitles them to ‘make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument’.  

Refer from section 340 of the Fair Work Act (Cth) 2009 for the ‘adverse action’ provisions, which include the right to claim for damages for the injury and or loss caused by 'adverse actions' (reprisals).  http://www.legislation.gov.au/Details/C2018C00512

This jurisdiction is known as a ‘no costs’ jurisdiction: meaning that you will not liable for the other side’s legal costs if you lose, unless the court decides your case is for example, vexatious or without foundation.

This act can also apply to a state employee, where the relevant state has ceded its authority to the Commonwealth.  Check with the Fair Work Commission whether it applies to you.  http://www.fwa.gov.au

Human rights laws

The Australian Capital Territory (ACT), Victoria and Queensland have enacted human rights laws, which differ in their approach, reach and the balance to be struck between the ‘right’ and ‘countervailing obligation’: but they do have potential as a protective device against reprisals.  Whether, that’s in tandem with or as an alternative to the existing whistleblowing laws where the priority is getting the wrongdoing fixed.

For example, section 16 of the ACT Human Rights Act 2004 indicates that (1) Everyone has the ‘right to hold opinions without interference and (2) Everyone has the right to freedom of expression’. This right includes the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.’

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:  which right ‘may be subject to lawful restrictions reasonably necessary: (a) to respect the rights and reputation of other persons or (b) for the protection of national security, public order, public health or public morality.’

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.  It forms part of the administrative law obligations and oversight mechanisms that ‘hold government to account’.

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 the whistleblowers, who assist with their inquiries or act as a witness for the authority in court proceedings.  Check with the relevant authority and ensure that any assurance given in return for your assistance is in writing and as referred to in the legislation.

The Evidence Amendment (Journalists' Privilege) Bill 2010, which amended the Evidence Act (Cth) 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 identity of the whistleblower or enable their identity to be ascertained.

But please check in your state, whether the law also applies to the issue of a warrant or other legal process to produce evidence. 

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, as whistleblowers do.'

https://andrewwilkie.org/project/evidence-amendment-journalists-privilege-bill-2010/

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 (refer above) and the strategies you put in place to stay safe (see ‘How to blow the whistle’).

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

Each regulator has a particular purpose, so study the relevant legislation.  Work out what you can prove – objectively - with documents and whether it is about waste, maladministration or corruption.  Or a mix and if so, go with the more conservative assessment as the regulator may decide to upgrade it if need be.  Consult with the regulator over the phone, with a view to ultimately lining up an interview and be careful to configure your information to meet their requirements. 

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: refer below for the discussion under ‘How to blow the Whistle’.

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: refer (eg) section 382 of the Fair Work Act (Cth) 2009 for the current federal threshold.

Common law claims rely on a wide body of court decisions or precedents built up over time – refer for example below.  

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.

Refer a legal library online for assistance in searching out relevant precedents: for example, http://www.austlii.edu.au/

Codes of conduct remain a liability

Each state and territory government has legislated a public service code of conduct.  You need only type ‘public service code of conduct’ into your browser to bring up a list to choose from. 

The Corporations Act (Cth) 2001 achieves the same thing in the private sector, by requiring corporations above a certain size to have a whistleblowing policy as approved by the ASIC.

Your employer probably has one.  It may well form a part of your employment contract, whether in the public or private sector. 

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 criminalise blowing the whistle on offences committed for or by the government, which it invariably claims would threaten the national security and or commercial interests.  This is fundamentally silly and plainly wrong, but penalties for breaching these laws range from 5 to 15 years imprisonment for standard offences, stretching to 20 years for aggravated offences.

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 (like Australia bugging a foreign embassy). The person on trial or in jail may not be allowed to tell even relatives that they are on trial or in jail.

These laws make the job of whistleblowing very, difficult.  You need to be tech savvy, anonymous, with no digital footprint and have a very safe bolt hole lined up before you blow the whistle.  Consider the cases of Witness J, Witness K, Bernard Collaery, David McBride and journalist Julian Assange to get a grip on what governments are prepared to do to conceal their own crime.

To date there is no ‘public interest defence’ available to argue against the criminal, institutional and political protection of criminal offences.  Or standing to have set aside any prosecution brought to conceal a crime so, as to avoid political embarrassment and accountability.  Or a right to know what government is doing, as the prosecutions are heard in secret to control, frustrate and manipulate the public narrative in its favour. 

These laws also wrongly, criminalise journalism by making the receipt, handling, and publication of the alleged criminal offence, a crime.  Here, the federal court decision in Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133 at [24] after the ABC lost its appeal against the AFP’s warrant to produce files in relation to its publication of the ‘Afghan Files’ story is instructive.  http:///www.fedcourt.gov.au/services/access-t--files-and-transcripts/online-files/abc-v-kane

Until the ‘shield laws’ referred to above under Other Protective laws are amended to close this gap, public interest journalism and their sources are at serious risk of gaol time.