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. Transparency International Australia considers the protections for private sector whistleblowers to be generally weaker than for those in the public sector, with the main provisions found in corporations legislation that does not mandate any internal company procedures.[3]

Australia's first whistleblower protection laws were introduced in Queensland following the recommendations of the Fitzgerald Inquiry.[4] 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.

Federal law[edit]

General provisions[edit]

The Public Interest Disclosure Act 2013 (PID Act) introduced a new comprehensive framework for protecting Commonwealth public sector whistleblowers.[5] 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.[6] 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.[7]

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.[8] The provision is often used to pursue whistleblowers and leaks by federal government employees and private contractors.[9] 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.[9]

National security[edit]

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 declaration a Special Intelligence Operation with the Attorney-General's approval and removed from scrutiny.[1]

Immigration law[edit]

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]

  • the whistleblower would first need to report their concerns internally
  • an external disclosure could only then be made after the whistleblower believed on reasonable grounds that the either the investigation or response were inadequate or delayed
  • the disclosure must not be contrary to the public interest nor make public sensitive information about law enforcement
  • the disclosure cannot be made about a matter in which a Minister has taken action or proposes to take action.

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[edit]

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.[3]

Part 9.4AAA of the Corporations Act provides a degree of protection.[14]

State and territory laws[edit]

Apart from South Australia, the state and territory whistleblower protection laws only cover the public sector.[15]

Queensland[edit]

Protection is currently offered by the Public Interest Disclosure Act 2010 (Qld).[16]

New South Wales[edit]

Protection is currently offered by the Protected Disclosures Act 1994 (NSW).[16]

Australian Capital Territory[edit]

Protection is currently offered by the Public Interest Disclosure Act 2012 (ACT).[16]

Victoria[edit]

Protection is currently offered by the Whistleblowers Protection Act 2001 (Vic).[16]

Tasmania[edit]

Protection is currently offered by the Public Interest Disclosures Act 2002 (Tas).[16]

South Australia[edit]

Protection is currently offered by the Whistleblowers Protection Act 1993 (SA)[16]. However the new "Public Interest Disclosure Act 2018" (PID Act) will commence on 1 July 2019 [17]

Western Australia[edit]

Protection is currently offered by the Public Interest Disclosure Act 2003 (WA).[16]

Northern Territory[edit]

Protection is currently offered by the Public Interest Disclosure Act 2008 (NT).[15]

See also[edit]

References[edit]

  1. ^ a b Paul Farrell (26 September 2014). "Journalists and whistleblowers will go to jail under new national security laws". The Guardian.
  2. ^ a b Sarah Sedghi (1 July 2015). "Border Force Act could see immigration detention centre workers jailed for whistleblowing". ABC News. Australian Broadcasting Corporation.
  3. ^ a b http://transparency.org.au/wp-content/uploads/2014/09/FINAL__-Whistleblower-Protection-Laws-in-G20-Countries-Priorities-for__-Action.pdf at page 24
  4. ^ Dadic, Zac (2009). "Whistleblower Protection and Disclosures to Members of the Queensland Legislative Assembly" (PDF). 24 (2). Australasian Parliamentary Review: 97–113. Cite journal requires |journal= (help)
  5. ^ "Bills Digest No. 125, 2012–13: Public Interest Disclosure Bill 2013". Australian Parliamentary Library. Retrieved 20 April 2016.
  6. ^ House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector, 2009 http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=laca/whistleblowing/report.htm
  7. ^ http://www.ombudsman.gov.au/about/making-a-disclosure
  8. ^ Crimes Act 1914 (Cth) s 70
  9. ^ a b Paul Farrell (22 January 2015). "Journalists reporting on asylum seekers referred to Australian police". The Guardian.
  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. ^ a b Hoang, Khanh. "FactCheck: Could a whistleblower go public without fear of prosecution under the Border Force Act?". The Conversation. Retrieved 2016-05-06.
  13. ^ "What are the secrecy provisions of the Border Force Act?". ABC News. 27 July 2016. Retrieved 27 July 2016.
  14. ^ "Blowing the whistle: Protection for whistleblowers in Australia". KordaMentha. September 2014. p. 4. Retrieved 20 April 2016.
  15. ^ a b "Whistleblowing: Some Relevant Considerations" (PDF). CPA Australia. p. 9. Retrieved 20 April 2016.
  16. ^ a b c d e f g "Australia – Whistleblowing Protection, Overview". Blueprint for Free Speech. 20 November 2014. Retrieved 20 April 2016.
  17. ^ https://publicsector.sa.gov.au/policies-standards/public-interest-disclosure-act/