Lawyer For Whistleblowers In Australia
Whistleblowers play an important role in society. Often, they are the reason that corrupt people and systems are exposed.
In Australia, the Corporations Act gives certain people legal rights and protections as whistleblowers. This is a tricky area of law often involving a ‘David and Goliath’ struggle between a brave individual and a defensive and fearful corporation or government department.
If you are a whistleblower, or you are considering becoming one, we strongly recommend that you receive legal advice first. We can help.
What Is Whistleblowing?
There is no universally accepted definition of whistleblowing. The term is typically used to describe the conduct of an employee who reveals information about an improper or detrimental act committed by their employer or colleague.
If you have engaged, or plan to engage, in whistleblowing conduct and are afraid of the repercussions, it is important to be aware of how the law will protect you. Likewise, if you have engaged in whistleblowing conduct, and your employer has acted in a retaliating and revengeful manner, it is important to know your rights.
Whistleblowing is the act of raising concerns about wrongdoing, usually within a work context in a public, private or governmental organisation. It is the action someone takes to report a contravention of law, fraud, corruption, an abuse of public trust, falsifying scientific research, wastage of public money, human rights abuses, abuse of power, maladministration, harassment, threats to health and safety or environmental wrongdoing.
Whistleblowing is an important tool in fighting corruption, enforcing laws, protecting public safety and helping ensure good governance. Potential whistleblowers, however, often have strong incentives not to come forward unless they are afforded clear and robust legal protections.
Whistleblowing is not the same as making a complaint or lodging a grievance as this type of action is one by which you are acting for yourself and in your own interest, and not in the public interest.
What Protections Can a Whistleblower Receive?
A whistleblower (that is a “discloser” – a person eligible to make a disclosure) is protected from reprisals taken or threatened against them.
A reprisal is an act or omission causing detriment to the discloser or another person.
Detriment can include any of the following: dismissal from employment, alteration of a person’s employment to their detriment, harassment, intimidation, discrimination, harm or injury to a person (including psychological harm), or damage to property or reputation.
A whistleblower is protected from any of the following:
- civil liability, such as legal action for breaching a duty of confidentiality;
- criminal liability, such as prosecution for unlawfully releasing information; or
- administrative liability, such as disciplinary action for making the disclosure.
However, the protections do not grant immunity for any misconduct a whistleblower has engaged in which they reveal in a disclosure.
General whistleblower protections can be found under an organisation’s rules and policies and the following legislation:
- Fair Work (Registered Organisations) Act 2009 (‘RO Act’);
- Public Interest Disclosure Act 2013(Cth) (‘PIDA’);
- Crimes Act 1914 (Cth) (‘Crimes Act’);
- Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) which amended the Corporations Act 2001 (Cth) and other Acts including the Taxation Administration Act 1953(Cth), Banking Act 1959 (Cth) and Insurance Act 1973 (Cth) to create a single strengthened whistleblower protection regime for the corporate and financial sectors; and
- Various State & Territory Public Interest Disclosure Acts
In order for protections to apply, all of the following elements must be present:
- A person who is eligible to make a disclosure; and
- A reprisal taken or threatened against the discloser or another person; and
- The disclosure/potential disclosure was the reason (or part of the reason) for the reprisal or threat.
Where the elements above are met, the following court actions may be available :
- Criminal offence: a person may be prosecuted. This action can only be pursued by Police or the Australian Competition and Consumer Commission (ACCC) and must be proved beyond reasonable doubt;
- Civil penalty: a person may be liable for a civil penalty. This type of proceeding can only be commenced by regulators such as the Fair Work Commission and must be proved on the balance of probabilities by the person making the application;
- Civil remedy: an application can also be made against a person taking or threatening a reprisal. It is up to the person alleged to have taken reprisal action to prove (on the balance of probabilities) that a disclosure was not the reason (or part of the reason) for the action.
- A civil remedy order may include: compensation, an injunction to prevent, stop or remedy the effects of the reprisal or threat, an order requiring an apology, reinstatement (if the reprisal involved termination of employment), and any other order the Court thinks appropriate.
Human rights protections for whistleblowers
Whistleblower protection is an essential part of the wider human rights framework which is underpinned by Australia’s international obligations. The ability of whistleblowers to speak up, and the public’s right to know, is protected under the right to freedom of opinion and expression, established under Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Human rights legislation has been enacted in Australian Capital Territory (ACT), Victoria and Queensland each with its own approach, reach and balance to be struck between the ‘right’ and ‘countervailing obligation’. Despite their differences, they each offer the potential to act as a protective mechanism against reprisals whether in tandem with, or as an alternative to, the existing whistleblower protection laws.
Without robust whistleblower protections in place, violations against human rights will go unseen and unheard.
When is it an offence to blow the whistle?
Under the Crimes Act, the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) and the Australian Border Force Act 2015 (Cth) (‘Border Force Act’) it is an offence to reveal certain types of information obtained as a Commonwealth officer.
Some argue that the blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under this legislation, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other.
Whistleblower Eligibility Requirements
In Australia, the law is complex and varies depending on whether the organisation who has committed the suspected wrongdoing is a federal or state/territory government agency or a company.
And as such, the whistleblower or ‘discloser’, must meet the relevant eligibility requirements depending on what legislation applies.
For example, a whistleblower under the Fair Work (Registered Organisations) Act 2009, must be one of the following:
- an officer or former officer of an organisation, or of a branch of an organisation;
- an employee or former employee of an organisation, or of a branch of an organisation;
- a member or former member of an organisation, or of a branch of an organisation;
- a person who has, or had, a contract for the supply of services or goods to, or any other transaction with, an organisation or a branch of an organisation;
- a person who has, or had, a contract for the supply of services or goods to, or any other transaction with, an officer or employee of an organisation or of a branch of an organisation who is, or was, acting on behalf of the organisation or branch; or
- an officer, former officer, employee or former employee of a person or organisation named in either (d) or (e) above.