Effective whistleblowing provides an essential service in
fostering integrity and accountability while deterring and exposing misconduct,
fraud and corruption. A recent analysis of whistleblower protections across G20
countries found Australia's laws to be comprehensive for the public sector, but
lacking in the private sector. However, the Moss Review of the Public
Interest Disclosure Act 2013 (PID Act) identified many flaws and areas for reform
of the PID Act. Evidence to the inquiry, as well as consideration of existing
laws, indicates that whistleblower protections remain largely theoretical with
little practical effect in either the public or private sectors. This is due,
in large part, to the near impossibility under current laws of:
- protecting whistleblowers from reprisals (i.e. from retaliatory
- holding those responsible for reprisals to account;
- effectively investigating alleged reprisals; and
- whistleblowers being able to seek redress for reprisals.
Another significant issue identified by the committee is the
fragmented nature of whistleblower legislation. In particular, significant
inconsistencies exist not only between various pieces of Commonwealth public
and private sector whistleblower legislation, but also across the various pieces
of legislation that apply to different parts of the private sector. The
committee has made a number of recommendations to address these issues based on
a detailed comparison of three separate Acts.
The committee has recommended separate public and private
whistleblower protection legislation. However, the committee recognises that it
would be the preference of Labor and Green committee members that a single Act
be proceeded with in the first instance.
The committee's work on this inquiry was greatly assisted by
a substantial body of academic work over the past two decades on whistleblower
protections. The committee has used the best practice guidelines set out in the
Breaking the Silence report as a systematic basis for conducting its inquiry
and structuring this report. The table overleaf summarises the best practice
criteria for whistleblowing legislation and the areas where the committee is
One of the committee's main recommendations is the
establishment of a Whistleblower Protection Authority (to be housed within a
single body or an existing body) that can support whistleblowers, assess and prioritise
the treatment of whistleblowing allegations, conduct investigations of
reprisals, and oversight the implementation of the whistleblower regime for
both the public and private sectors.
The committee notes the Moss review recommendation to ensure
that the whistleblower regime is focussed on serious misconduct such as fraud
and corruption. The committee considers that, for whistleblowing associated
with serious misconduct, it is likely that reprisals would be a form of corrupt
conduct (that is, dishonest or unethical or criminal conduct to obtain personal
benefit by a person entrusted with a position of authority). It is therefore
the committee's view (assuming that the Moss Review recommendations are
implemented) that the most appropriate body to house the Whistleblower
Protection Authority is a body that has a demonstrated track record in
identifying and investigating corruption and bringing those responsible to
Best practice criteria for legislation and recommendations
Criteria for Whistleblowing Legislation
reforms recommended by the committee (see Chapter 4 for further
coverage of organisations
to cover the private sector, and ensure consistency by bringing all private
sector legislation into a single Act.
definition of reportable wrongdoing
the private sector definition of disclosable conduct to a breach of any
Commonwealth, state or territory law.
definition of whistleblowers
protections for both former and current staff that could make a disclosure,
or are suspected of making a disclosure. Provide appropriate protection for
recipients of disclosures and those required to take action in relation to
of internal / regulatory reporting channels
a tiered approach comprising:
(iii) external disclosure (in
internal disclosures in the private sector, including in registered
reporting channels (third party / public)
thresholds for protection across the public and private sectors.
and protections for anonymous reporting
||Allow for anonymous
disclosures across the public and private sectors.
the confidentiality of the disclosures and the whistleblower's identity.
disclosure procedures required
appropriate body to set and promote standards for internal disclosure
procedures in the private sector.
protections against retaliation
the public and private sector with the protections, remedies and sanctions
for reprisals in the Fair Work Registered Organisations Act 2009.
remedies for retaliation
a Whistleblower's Protection Authority (to be housed within a single body or an
existing body) that has as its priority to support whistleblowers, that has
the power to investigate reprisals, and that will oversight the
implementation of the whistleblower regime.
use of legislation
||Annual reports to Parliament for both
the public and private sectors in consistent format to facilitate comparison.
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