Consistency across sectors
3.1
This chapter examines evidence put to the committee on the need for
consistency of whistleblower protections in Australia. After summarising the
whistleblower legislation that is currently in place, the fragmentation and
areas of inconsistency in the legislation are then discussed. Suggestions put
to the committee are then considered along with possible limitations including
the need for flexibility in some areas and potential constitutional
limitations.
Legislation currently in place that relates to whistleblowers
3.2
This section lists the legislation that relates to whistleblowers. While
not exhaustive, the list below indicates there may be over 20 different statutes
relating to whistleblower protection at a federal, state and territory level, as
well as the protections that may apply to informants in the law enforcement
sector. The following public sector legislation applies to whistleblowers in
Australia:
- PID Act;
- Public Interest Disclosure Act 2012 (ACT);
- Public Interest Disclosure Act 2008 (NT);
- Public Interest Disclosures Act 1994 (NSW);
- Public Interest Disclosure Act 2010 (QLD);
- Whistleblowers Protection Act 1993 (SA);
- Public Sector Act 2009 (SA);
- Public Interest Disclosures Act 2002 (TAS);
- Protected Disclosure Act 2012 (VIC); and
- Public Interest Disclosure Act 2003 (WA).[1]
3.3
At the Commonwealth level alone there are already six statutes covering
private sector whistleblowing in Australia:
- Banking Act 1959;
- Life Insurance Act 1995;
- Superannuation Industry (Supervision) Act 1993;
- Insurance Act 1973;
- Part 9.4AAA of the Corporations Act; and
- Part 4A of the FWRO Act.[2]
3.4
The Law Council also identified other legislation which may protect
whistleblowing activities including:
- legislation directed at official corruption, such as:
- Independent Commission Against Corruption Act 1998 (NSW);
- Commissions of Inquiry Act 1950 (QLD);
- Corruption and Crime Commission Act 2003 (WA); and
- public administration legislation, such as:
- Public Service Act 1999 (Cth);
- Public Sector Management Act 1994 (ACT);
- Whistleblowers Protection Act 1994 (QLD); and
- State Service Act 2000 (TAS).[3]
Fragmentation of, and inconsistencies in, current legislation
3.5
Several submitters and witnesses drew the committee's attention to the fragmented
and inconsistent nature of current whistleblower protection legislation in
Australia. These submitters pointed, firstly, to the difficulties that can
arise for both whistleblowers and businesses from a fragmented legislative
approach, and secondly, to the potential benefits for both whistleblowers and
businesses of a more coherent and consistent legislative approach.[4]
For example, the AICD argued:
The effect of this fragmentation makes the framework
difficult for whistleblowers to access, interpret and rely on, and for
businesses to understand their obligations.
There is a significantly broader range of corporate
misconduct that should be incorporated into one cohesive framework, thereby
extending protections further and creating greater opportunity for information
about corporate wrongdoing to come to light.[5]
3.6
Similarly, the Law Council argued that the current system failed to
provide clarity and consistency for either whistleblowers or business, and
failed to provide safety for whistleblowers.[6]
3.7 The Law Council also drew attention to inconsistencies in Australia's
public and private sector whistleblower protections, including:
- the limited protections that appear to be available for tax
whistleblowers;[7]
- the protections that typically apply at a state level to
disclosures about wrongdoing by members of parliament, ministerial advisers or
the judiciary that do not attract protections at a federal level;
- the protections that apply at a federal level to public servants
who blow the whistle to the media that may incur liability to criminal or
disciplinary actions in some states; and
- the lack of protections for disclosures about wrongdoing by an
intelligence agency or intelligence operations.[8]
3.8
The Law Council also pointed to various shortcomings under current
statutory protections for corporate whistleblowers enacted in 2004 and
contained in the Corporations Act, such as the criteria that need to be met in
order for a person to qualify for whistleblower protections, including in
regard to who can make a disclosure and to whom:
These criteria can give rise to significant gaps in
protection; for example, anonymous whistleblowers are not protected, and
disclosures made under the Corporations Act can only be made regarding
corporate law, not tax or any other law.[9]
3.9
The committee also heard from regulators about issues arising from
whistleblower protections currently being located in different Acts. For
example, the Australia Competition and Consumer Commission (ACCC) informed the
committee that it had concerns about the number of different whistleblower
protections schemes at the Commonwealth level, noting that at least five
schemes have been used by whistleblowers in recent years to bring issues to the
ACCC.[10]
3.10
Mr Warren Day, Senior Executive Leader from ASIC noted that the
whistleblower protection provisions under the Corporations Act, the FWRO Act
and the proposed provisions for tax whistleblowers do not necessarily align. Yet,
Mr Day pointed out that it is entirely possible that circumstances could arise
where reportable conduct could relate to two or three separate pieces of
legislation that had inconsistent criteria for disclosable conduct and related
protections.[11]
Inconsistencies in whistleblowing processes and practice
3.11
Legislation provides the foundation for many other aspects including
whistleblowing process and practice. As set out in Chapter 2 of this report, in
May 2017 Professor A J Brown and his colleagues reported on their survey on the
strength of organisational whistleblowing processes and procedures in Australia
which was conducted as part of the Whistling While They Work 2 research
project. Table 3.5 summarises the results.
Table 3.1: Strength of
whistleblowing processes by sector & jurisdiction / industry
Source: A J Brown and Sandra A
Lawrence, Strength of Organisational Whistleblowing processes – Analysis
from Australia, May 2017, p. ii.
3.12
The results of the survey identify a great deal of variation in
the strength of whistleblowing processes across industry sectors as shown in
Table 3.5. While many things will contribute to inconsistencies in
whistleblowing processes across organisations, the task of achieving
consistency is made much harder if the underlying legislation is fragmented and
inconsistent.
Achieving consistency across sectors
3.13
In December 2016, Australia's First Open Government National Action
Plan 2016–18 was finalised. The government's action plan includes a
commitment to harmonise public and private whistleblower protections:
Australia will ensure appropriate protections are in place
for people who report corruption, fraud, tax evasion or avoidance, and
misconduct within the corporate sector.
We will do this by improving whistle-blower protections for
people who disclose information about tax misconduct to the Australian Taxation
Office. We will also pursue reforms to whistle-blower protections in the
corporate sector, with consultation on options to strengthen and harmonise
these protections with those in the public sector.[12]
A single private sector Act
3.14
There was broad agreement amongst witnesses on the need for a single
whistleblower protections Act to cover the private sector, with many submitters
and witnesses noting that this would be of benefit to both potential
whistleblowers and businesses.
3.15
The ACCC was in favour of a single, comprehensive national whistleblower
scheme.[13]
Likewise, ASIC also argued for a single piece of legislation that applies more
universally.[14]
3.16
Professor A J Brown informed the committee that Australia had more scope
to move to a single Act than some other countries:
From a business regulatory point of view, we are in a
position where we can do that, whereas the United States cannot because there
is no federal employment law governing business in effect in the United States.
However, obviously in Australia, especially since Work Choices and under the
current Fair Work type regime that we enjoy, it means that the Commonwealth is
in a position to legislate comprehensively for all corporations and all
employers who are corporations and employees of corporations.[15]
3.17
Noting that whistleblower protections in the United States currently
span 47 different pieces of legislation, Professor Brown pointed out that
the limited progress on corporate sector whistleblowing protections in Australia
to date meant that Australia still has an opportunity to combine whistleblower
protection legislation for the private sector into a single Act.[16]
3.18
Dr Vivienne Brand informed the committee that the current whistleblower
protections in Part 9.4AAA of the Corporations Act are inadequate, and as a
consequence, rarely used. Dr Brand therefore supported ASIC's suggestion of a
single, essentially, private sector whistleblowing Act, noting that future
reviews could always recommend the incorporation of additional elements in the
legislation.[17]
3.19
Nevertheless, in terms of combining whistleblower protections for the
private sector into a single Act, Dr Brand and Dr Sulette Lombard indicated
that there would need to be amendments to a range of provisions to ensure synchronisation
between the FWRO Act protections and the corporate regulatory regime. For
example, in relation to persons who may make an application, the categories
specifically mentioned in the FWRO Act whistleblower protections would not
necessarily be appropriate in the context of corporate whistleblowing.[18]
3.20
Professor Brown set out a potential path for bringing the private
(including tax) and not-for-profit sectors into a single piece of whistleblower
protections legislation, based on the corporations power as well as other heads
of power:
- the main framework;
- categories of disclosable
wrongdoing;
- investigative and regulatory
agencies involved (including ASIC, the Australian Charities and Not-for-profits
Commission, ACCC, APRA, Environment Australia, ROC, the Australian Taxation Office,
AFP etc);
- main protections and duties
on employers/companies, including provisions for the making of regulations and
codes of practice to assist employers;
- provisions and procedures for
bounty/penalty recovery, across all Commonwealth recovery avenues;
- circumstances for third
party/media disclosures;
- relations with State agencies;
- establishing and empowering
the oversight agency; and
- review and oversight.[19]
3.21
The AICD was of the view that a single standalone Act for the private
sector would be of benefit to both potential whistleblowers and businesses. The
AICD argued that a whistleblower cannot be expected to be an expert on the
Corporations Act and that they should not have to consult a piece of
legislation before they make a report. If a whistleblower is a witness of
serious corporate wrongdoing, they should feel confident in making a disclosure
to their company or to an appropriate regulator, without fear that it might
fall outside the definition because of a technicality.[20]
3.22
DLA Piper noted that a single corporate sector Act would provide
whistleblowers with increased certainty and ensure a more consistent approach
to the handling and investigation of disclosures. DLA Piper suggested that it
would be preferable to have all whistleblower protection laws, insofar as they relate to the corporate sector, within a single Act.[21]
3.23
The GIA also supported broadly based standalone legislation for
whistleblower protections:
The institute is very supportive of the provisions in the
Public Interest Disclosure Act serving as a starting point for standalone
whistleblowing legislation applying to the private sector, particularly the
wide coverage of the misconduct it covers and the disclosers it applies to.
Provisions affected by the Fair Work (Registered Organisations) Amendment Act
in relation to whistleblowers should also be considered. The institute is very
much in favour of standalone legislation rather than recommending multiple
reforms to multiple pieces of legislation.[22]
3.24
The Australian Institute of Superannuation Trustees (AIST) supported the
use of the principles in the Breaking the Silence Report[23]
in new stand-alone legislation to replace whistleblower provisions across
several private sector Acts and the charity sector. The AIST also informed the
committee that:
We would support one piece of national legislation that
covers the field. It would certainly make it easier for whistleblowers to
understand what their rights and obligations are. Also, as
one piece of legislation is amended, others are not necessarily, so there could
be differences in standards. As people move between industries, they may not be
aware of what the possibilities are for making disclosures and what the different
protections might be that are offered.[24]
3.25
The Media, Entertainment & Arts Alliance (MEAA) also supported
consolidated public and private sector whistleblower legislation.[25]
3.26
Ms Serene Lillywhite, Chief Executive Officer of Transparency
International argued that there should be flexibility within a private sector
legislative scheme to account for differences in the size and nature of private
sector organisations because the size of the corporation may impact on the
level of protection that can be provided:
So there needs to be some flexibility with regard to
considering the level of protection that may be required and the process of
reporting that may be required. That depends on the size and scope of the
corporate entity and depends on where within the supply chain or the value
chain of the business the alleged misconduct has taken place. All of those
things may be important considerations in terms of designing a mechanism to
ensure there is some flexibility to bring about a response that is appropriate for
the misconduct that has been reported.[26]
3.27
Dr Simon Longstaff, Executive Director of the Ethics Centre also argued
for some flexibility for the private sector and did not support legislation
that would set out precise measures that corporations had to employ in
addressing whistleblowing issues.[27]
A single Act for the public and
private sectors
3.28
While there was general agreement amongst submitters and witnesses on
the need to harmonise, as far as possible, whistleblower protection provisions
across the public and private sectors, several witnesses pointed to the need to
take account of the differences between public and private sector organisations
in designing legislative approaches, as well as recognising areas where the
current public sector provisions could be improved to meet best practice
criteria.
3.29
By contrast, the IBACC informed the committee that in its view there
should be one Commonwealth statute covering the field for private and
not-for-profit sector whistleblower protections:
The [IBACC] strongly believes that it is desirable for
consistency and for transparency across the private and not-for-profit sectors
that the whistleblower protection laws should be consistent and the same. It
would, in the [IBACC]'s opinion, be detrimental to the success of any reforms
if different protection regimes applied to different sectors in the country or
in different industry sectors. That position is only likely to highlight a risk
that a genuine whistleblower may, depending upon the conduct in question, fail
to be properly protected if he or she does not fit neatly into a narrow,
industry or sector focused definition.[28]
3.30
Ms Rebecca Maslen-Stannage, Chair of the Corporations Committee, Law
Council told the committee that the Law Council supported harmonised reforms to
whistleblower protections. The Law Council saw that there would be value in
combining public and private sector legislation into a single Act in order to
maintain consistency between the two sectors:
...the Law Council
supports harmonised reforms to other existing whistleblower protections such as
improved protections for public sector whistleblowers as well as those
contained in the Corporations Act either by amendment to each relevant act or
by introduction of overarching whistleblower legislation.[29]
3.31
Importantly, the Law Council also stressed the importance of harmonising
federal, state, and territory laws:
More broadly, the Law Council considers it is vital that any
regime introduced is uniform across the board, with a view to having states and
territories adopting a similar or parallel approach through collaboration with
the Council of Australian Governments and that it be built on a sound
foundation of the culture of corporate compliance, as is already promoted by
relevant provisions of the criminal code. Perhaps to highlight the key points
in our submission, the Law Council's view is that the laws should be uniform in
structure and operation, applying across all contexts and sectors. The law
should apply to any whistleblower without regard to narrow specifications of
relationship to the entity in question.[30]
3.32
ASIC Commissioner, Mr John Price, told the committee that while ASIC
considered it desirable to align whistleblowing approaches across the
not-for-profit, public and corporate sectors, there might be some benefit in
having slightly different approaches between the public and private sectors to
account for the different nature of the organisations that operate in those
sectors.[31]
3.33
Ms Lillywhite from Transparency International noted that in order to
harmonise public and private sector whistleblower protections, it would be
necessary to reform the public sector protections first:
...we note that given improvements to that act are required to
meet international best practice, and the need for greater flexibility in the
implementation of protection across the private and not-for-profit sectors, we
believe this harmonisation objective is unlikely to be useful, at least in the
short-term.[32]
...the existing public sector protection is not at a high
enough standard and is not robust enough. So we would not want to harmonise
with something we believe is not yet at best practice standards.[33]
3.34
Transparency International also argued that the public sector should be
subjected to higher levels of accountability and therefore there may need to be
differences between the public and private sector acts:
TI [Transparency International] Australia considers that as a
general principle a one-size-fits-all approach designed to work for the public
sector—even when that is brought up to a higher standard—should not necessarily
be imposed on the private and not-for-profit sectors. It is
our view that public officials have a heightened responsibility to uphold the
principles of transparency and accountability.[34]
3.35
DLA Piper argued that public and
private sector whistleblower legislative regimes should remain separate but be
harmonised where appropriate:
In principle, we are in
favour of harmonisation of whistleblower provisions across the public, corporate and not-for-profit sectors. Harmonisation has the benefit of reducing
confusion and increasing confidence for whistleblowers, these sectors and regulators...we
consider
that there are provisions of the ROC amendments which could be usefully adapted for the corporate sector.[35]
3.36
DLA Piper also suggested that the details of internal whistleblower
programs could be left to guides developed and provided by regulators:
We have suggested, instead, that it would be beneficial for
ASIC, and, indeed, other regulators, to offer regulatory guidelines which offer
best practice principles which internal programs could reflect. They could also
be incentivised by an offering of a reduction in liability in circumstances
where internal programs do in fact reflect such features, and perhaps other
conditions as well.[36]
3.37
With respect to a single piece of whistleblower legislation for both
the public and private sectors, Dr Lombard noted that corporate behaviour can
be influenced in a number of ways through statutory disclosure requirements
that would not necessarily operate in the same way in the public sector. She
therefore expressed concern that a single whistleblowing Act may struggle to
cope with the differences between public and private sector entities:[37]
It would be necessary for it to have to be framed in broader
terms than you would be able to do for particular sectors. Once again, it comes
down to the drafting and paying careful attention to what you actually want to
achieve by the legislation. In my view, it is all about making sure that people
with information come forward. If you adopt that as a central focus and build
the regulation around that, hopefully it could succeed.[38]
3.38
Likewise, Dr Brand informed the committee that she considered it would
not be appropriate to try to combine public and private sector whistleblower
protections into a single Act:
As nice as it would be to have an office of the whistleblower
and one act, and we are done, I do not think it works that way. The corporations
power will get you a fair part of the way with the big money, with the
corporations which do the things that cost the economy a lot of money. And
there will be other powers that might get you there with other things like the
fair work amendments. It probably will not be a beautiful neat system but then
our regulatory system for corporations already is not and for most things is
not.[39]
3.39
Similarly, Professor Brown indicated that it is really important to
articulate the principles that should be common across the public and private
sectors, while noting that areas of difference may include thresholds and
requirements for procedures that would be imposed on the private sector.
Professor Brown also argued for:
...a high level of consistency and with both of them being
clear on when they are relying on the Fair Work Act and the existing employment
and civil remedies for enforcement of the legislation. I think there is a real
need for the government to look at making sure that its reform of the Public
Interest Disclosure Act and the new legislation are as consistent as possible,
but I do suspect that they are going to still end up being two pieces of
legislation.[40]
3.40
The AFP was of the view that while consistency across sectors is
desirable, whistleblowing in a public sector context raises separate issues requiring
specific consideration. The AFP suggested that any harmonisation of
whistleblower protections at a Commonwealth level should take into account the
relationships between regulatory and criminal misconduct, and the need to
support interagency partnerships so wrongdoing can be addressed in the most appropriate
manner.[41]
3.41
The AFP also informed the committee that the Criminal Code applies to
the public, private and not-for-profit sectors equally:
From a law enforcement investigative perspective, the AFP is
not concerned with the type of sector in which wrongdoing occurs, or whether it
is committed by an individual, corporation or not-for-profit body. The AFP is
only concerned as to the type of wrongdoing which has been committed: that is,
whether it involves a breach of Commonwealth criminal law. As noted above, the
AFP's priorities relate to complex, transnational, serious and organised crime,
and include serious financial crime.[42]
Constitutional limitations
3.42
One of the issues that arose during the inquiry concerned the extent of
the Commonwealth's power to legislate for whistleblower protections across the
private sector.
3.43
The Parliamentary Library summarised potential constitutional
limitations on the Federal Parliament in a research note on whistleblowing in
Australia:
The Federal Parliament lacks a general power to implement
comprehensive whistleblower legislation covering the public and private
sectors. However, the Federal Parliament has used its constitutional powers to
provide for whistleblower protection mechanisms in specific areas. For example,
it used its corporations power (paragraph 51(xx) of the Constitution) to
legislate a framework to encourage whistleblowing in relation to suspected
breaches of the Corporations Act. This legislation applies to any 'constitutional
corporation', that is, any incorporated body.
To reach unincorporated associations including charities,
which otherwise are under state jurisdiction, the Commonwealth could, for
example, use the taxation power (paragraph 51(ii) of the Constitution). With
respect to charities, the government could prescribe that tax exemptions may
only be available if internal whistleblower protection standards such as AS
8004 are established, or if the charity became part of an external
whistleblowing scheme.[43]
3.44
The Parliamentary Library research note suggested that comprehensive and
fully uniform legislation would require either cooperation between the states
to enact uniform legislation or the referral of power from the states to the
Commonwealth under paragraph 51(xxxvii) of the Constitution.[44]
3.45
In 1994 the Senate Select Committee on Public Interest Whistleblowing encouraged
the states, territories and industry to work with the Commonwealth to address
areas of Commonwealth constitutional limitations in relation to private sector
whistleblowing, including consideration of an industry ombudsman.[45]
3.46
The 1994 Select Committee received information from the
Attorney-General's Department that the Commonwealth Parliament could legislate
to protect whistleblowers under the following heads of power in the Commonwealth
of Australia Constitution Act 1900:
Section 51(xx), the corporations power, would support a law
which empowered a Commonwealth body to investigate and report on the activities
of a foreign, trading or financial corporation;
Section 61, the executive power, would support a law in
respect of whistleblowing which relates to breaches of a Commonwealth law, and
Section 51(xx), the express incidental power, would support laws giving the
Commonwealth body the requisite investigative and reporting powers.[46]
3.47
Dr Brand advocated using the corporations power because the vast
majority of Australian businesses are run through a corporation. Dr Brand also
suggested that:
You might then go via other heads of power for any gaps that
are left. But if you divide whistleblowing regulation into private versus
public—and we would say put not-for-profit somewhere in the corporate power
basket but that does get messy because of the lack of constitutional
support—then you have pretty much taken care of it, I think.[47]
3.48
The Law Council argued that whistleblower legislation should be as broad
as possible in its coverage and:
- if gaps arise due to constitutional limitations, there may need
to be complementary laws across the Commonwealth, states and territories; and
- the legislation should be uniform and the approach across the
Commonwealth, states and territories should be parallel.[48]
3.49
The Law Council provided further suggestions for establishing an
appropriate constitutional basis for whistleblower protections:
Generally the constitutional basis for whistleblower laws
will be the head of power that underpins the principle legislation, on the
basis that such laws are reasonable incidental to the primary law. The
Commonwealth can go into the legislation that provides the relevant offence in
respect of which the whistle in being blown. Hence for corporations it would go
into the Corporations Law and be supported by the heads of power that support
that law, namely the corporations' power and the referral of power by the
States.[49]
Committee view
3.50
The vast majority of the evidence to the committee strongly supported
greater consistency and harmonisation across public and private sector
whistleblower protection legislation, including combining all private and
not-for-profit sector whistleblower protection legislation into a single Act.
3.51
While some submitters argued that the public sector should be subject to
a greater degree of accountability, the committee notes that following the
privatisation of services previously provided by the public sector, as well as the
greater use of outsourcing, the private sector now plays a significant role in
providing public services and these privately-provided services should have
appropriate accountability.
3.52
To this end, the committee considers that there is much to be gained
from consistent and harmonised whistleblower legislation, including:
- keeping the process simple for whistleblowers and avoiding
whistleblowers being repeatedly referred from one body to another;
- ensuring that businesses which provide public services directly
or through contracts to public sector bodies are not subjected to inconsistent
legislation;
- reducing regulatory compliance burdens on business; and
- making it easier and more efficient for the body of legislation
to be maintained into the future.
3.53
The weight of evidence to this inquiry did not favour combining public
and private whistleblower protections into a single Act. The committee is not
averse to further exploration of appropriate ways to combine public and private
sector legislation into a single Act. On balance, however, the committee
considers that the Commonwealth public sector whistleblower protections should
be retained in a separate single Act at the present juncture.
3.54
There was broad support for a single Act to capture all private sector
whistleblower protections, with submitters and witnesses pointing out that this
would not only provide a much clearer framework for whistleblowers and businesses
alike, but would also reduce regulatory compliance burdens on business.
3.55
In this regard, the committee notes that, in a previous Parliament, it
endorsed the creation of a single piece of whistleblower legislation for the
private sector that would be consistent with public sector whistleblower
protection schemes:
Indeed the longer term solution may be found in the
development of a more comprehensive body of whistleblower protection law that
would constitute a distinct and separate piece of legislation standing outside
the Corporations Act and consistent with the public interest disclosure
legislation enacted in the various states.[50]
3.56
The committee therefore reiterates its continuing support for a single
Act to combine all private sector whistleblower protections.
3.57
Furthermore, the committee notes the evidence presented in this chapter indicates
that it may be constitutionally possible for a single Act to combine all
private sector whistleblower protection, even if multiple heads of power are
needed.
3.58
While the committee considers it preferable to have separate
whistleblower protection legislation for the public and private sectors, the committee
recommends that the government explore mechanisms to ensure the ongoing
consistency between the public and private sectors, including examining the
potential to maintain both public and private sector whistleblower protections
in a single Act. In this regard, the committee notes the example of the Privacy
Act 1988, which sets out the Australian Privacy Principles that apply to
Australian government agencies, all private sector and not-for-profit
organisations with an annual turnover of more than $3 million, all private
health service providers and some small businesses.[51]
3.59
The committee considers that many of the best practice criteria for
whistleblower protections could be aligned across the public and private
sectors, while for other criteria the principles could be the same, but the
details may need to differ. The committee has set out some suggestions for each
best practice criterion in Table 3.2 below.
Recommendation 3.1
3.60
The committee recommends that:
-
Commonwealth public sector whistleblowing legislation remain in a
single updated Act, redrafted in parallel with the private sector Act;
-
Commonwealth private sector whistleblowing legislation (including
tax) be brought together into a single Act;
-
The Government examine options (including the approach taken in
the Privacy Act 1988) for ensuring ongoing alignment between the public
and private sector whistleblowing protections, potentially including both in a
single Act; and
-
The Commonwealth, states and territories harmonise whistleblowing
legislation across Australia.
3.61
The following provides an explanation for reading table 3.2:
- Column 1 sets out the best practice criteria for whistleblowing
legislation;
- Column 2 indicates the best practice criteria where the amended
public sector legislation and the new private sector legislation could be
aligned; and
- Column 3 indicates the particular aspects of the best practice criteria
where the new private sector legislation would differ from that in the public
sector.
Table 3.2: Potential differences similarities between new
public and private sector legislation.
| Best Practice Criteria for
Whistleblowing Legislation |
Could be the
same |
Private sector differences |
| 1 |
Broad
coverage of organisations |
No |
Privacy
Act definitions |
| 2 |
Broad
definition of reportable wrongdoing |
No |
Limit
to a breach of a Commonwealth or state or territory law. |
| 3 |
Broad
definition of whistleblowers |
No |
Take
account of different organisational structures and regulatory arrangements. |
| 4 |
Range
of internal / regulatory reporting channels |
No |
Take
account of different organisational structures and regulatory arrangements. |
| 5 |
External
reporting channels (third party / public) |
Yes |
|
| 6 |
Thresholds
for protection |
Yes |
|
| 7 |
Provision
and protections for anonymous reporting |
Yes |
|
| 8 |
Confidentiality
protected |
Yes |
|
| 9 |
Internal
disclosure procedures required |
No |
Requirements
are appropriate for the private sector. |
| 10 |
Broad
protections against retaliation |
Yes |
|
| 11 |
Comprehensive
remedies for retaliation |
Yes |
|
| 12 |
Sanctions
for retaliators |
Yes |
|
| 13 |
Oversight
authority |
Yes |
Different
oversight authority for public and private sectors. |
| 14 |
Transparent
use of legislation |
Yes |
Likely to require different reporting arrangements
involving regulators. |
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