Best Practice Criteria for Whistleblowing Legislation

Ratings (1 = Very / quite comprehensive, 2 = Somewhat / partially comprehensive, 3 = Absent / not at all comprehensive)

Performance of whistleblowing legislation against best practice criteria

Green = very / quite comprehensive

Yellow = somewhat / partially comprehensive

Red = absent / not at all comprehensive

Criterion

Description

Rating (public/ private)

Public Interest Disclosure Act 2013

Fair Work (Registered Organisations) Act 2009

Corporations Act 2001

1

Broad coverage of organisations

Comprehensive coverage of organisations in the sector (e.g. few or no 'carve-outs').

2/2

Sections 29 – 33, 71 – 72 – Excludes wrong doing by members of Parliament, ministerial staff or the judiciary, intelligence.

Section 337A – Registered organisations.

Section 1317AA(1a) – provides for disclosures about companies.

2

Broad definition of reportable wrongdoing

Broad definition of reportable wrongdoing that harms or threatens the public interest (e.g. including corruption, financial misconduct and other legal, regulatory and ethical breaches).

1/3

Section 29 – covers

•    contraventions of Commonwealth, state, territory or foreign laws;

•    corruption or perverting the course of justice;

•    abuse of public trust;

•    fabrication or misconduct relating to scientific advice;

•    wastage of public resources; and danger to health, safety or the environment.

Section 6 – contraventions of the FWRO Act, Fair Work Act or the Competition and Consumer Act 2010, or offence against a law of the Commonwealth.

Section 1317AA(1d) – provides for contravention of a provision of the corporations legislation.

3

Broad definition of whistleblowers

Broad definition of 'whistleblowers' whose disclosures are protected (e.g. including employees, contractors, volunteers and other insiders).

1/3

Sections 7, 26(1)(a), 69 – by current or former individual public official (including contractors, subcontractors and their staff).

Section 337A(1) – current and former officers, employees, members of the organisations and its contractors.

Section 1317AA(1a) only provides for  current officers, employees of a company or a contractor s or a contractor's employees.

4

Range of internal / regulatory reporting channels

Full range of internal (i.e. organisational) and regulatory agency reporting channels.

1/2

Section 26 – An authorised internal recipient or any supervisor

Section 34: 'authorised internal recipient' includes authorised officers in an agency, but also includes any regulators i.e. Ombudsman/IGIS or any 'investigative agency' with the power to investigate the disclosure.

Section 337A(1b) – does not appear to provide protection for disclosures within a registered organisation, but does allow disclosure to a regulator.

Section 1317AA(1b) – allows the disclosure to be made to an authorised officer, a director, secretary or senior manager of the company, the company's auditor or member of an audit team or ASIC.

5

External reporting channels (third party / public)

Protection extends to same disclosures made publicly or to third parties (external disclosures e.g. to media, NGOs, labour unions, Parliament members) if justified or necessitated by the circumstances.

2/3

Section 26 – Any person other than a foreign public official.

May disclose to a legal practitioner to seek legal advice.

However, aspects of intelligence are excluded.

Section 337A(1b) – does not appear to provide protection for external disclosures, except to a lawyer to assist with advice and submission to a regulator.

Section 1317AA – does not appear to provide for external disclosures.

6

Thresholds for protection

Workable thresholds for protection (e.g. honest and reasonable belief of wrongdoing, including protection for 'honest mistakes'; and no protection for knowingly false disclosures or information).

1/2

Section 26 – discloser believes on reasonable grounds that the information tends to show one or more instances of disclosable conduct. Other provisions also apply.

Section 337A(1c, 3c) – The discloser has reasonable grounds to suspect that the information indicates one or more instances of disclosable conduct.

Section 1317AA(1d, 1e) – requires the discloser to make the disclosure in good faith and with reasonable grounds to suspect.

7

Provision and protections for anonymous reporting

Protections extend to disclosures made anonymously by ensuring that a discloser (a) has the opportunity to report anonymously and (b) is protected if later identified.

2/3

Section 28(2) – provides for anonymous disclosure.

The FWRO Act does not appear to explicitly provide for anonymous disclosures.

The December 2016 amendment deleted the requirement for name to be provided.

Section 1317AA(1c) – requires the whistleblower to disclose their name.

8

Confidentiality protected

Protections include requirements for confidentiality of disclosures.

1/2

Section 20 – provides offences for use or disclosure of identifying information.

Section 21 – protects discloser's identity in courts or tribunals.

Section 65 provides offences for use or disclosure of identifying information

The FWRO Act does not appear to explicitly provide for the subsequent protection of the whistleblowers identity.

Section 1317AE – provides offences for:

- disclosing information disclosed in the disclosure;

- the identity of the discloser;

- information likely to lead to the identification of the discloser.

9

Internal disclosure procedures required

Comprehensive requirements for organisations to have internal disclosure procedures (including requirements to establish reporting channels, to have internal investigation procedures, and to have procedures for supporting and protecting internal whistleblowers from point of disclosure).

1/3

Sections 58–62 – requires the establishment of procedures for facilitating and dealing with PIDs, including assessment of risks of reprisals, confidentiality of investigations, protection of whistleblowers.

The FWRO Act does not appear to require registered organisations to have internal disclosure procedures, aside from investigation procedures by a Director who is an authorised official. Requirements for reporting channels and procedures for supporting and protecting internal whistleblowers appear to be absent.

The Corporations Act does not appear to provide explicit requirements.

10

Broad protections against retaliation

Protections apply to a wide range of retaliatory actions and detrimental outcomes (e.g. relief from legal liability, protection from prosecution, direct reprisals, adverse employment action, harassment).

1/3

Sections 9–12 – Protection from legal liability, contractual remedies, and privilege from defamation.

Section 13 – Protection from reprisals including dismissal, injury, alteration of position and discrimination.

Section 337B – Protection from legal liability, contractual remedies, and privilege from defamation.

Section 337BA – Protection from reprisals, including dismissal, injury, alteration of position, discrimination, harassment, harm including psychological harm and damage to property or reputation.

Section1317AB – Protection from legal liability and contract termination.

11

Comprehensive remedies for retaliation

Comprehensive and accessible civil and/or employment remedies for whistleblowers who suffer detrimental action (e.g. compensation rights, injunctive relief; with realistic burden on employers or other reprisors to demonstrate detrimental action was not related to disclosure).

2/2

Section 14 – Compensation

Section 15 – Injunctions and apologies

Section 16 – Reinstatement

Section 18 – Costs only if vexatious

No reverse onus

Section 14 allows for a court to require both an individual reprisor and the organisation to pay compensation.

Section 337BB –

Compensation

Injunctions

Apologies

Reinstatement

Exemplary damages

Section 337BC – Costs only if vexatious

No reverse onus

Section 1317AD – Compensation

The Act does not appear to provide for:

Injunctions

Apologies

Reinstatement

Exemplary Damages

Costs only if vexatious

Note:  civil remedies are ONLY available if a criminal offence of reprisal is shown to have been taken.

No reverse onus

12

Sanctions for retaliators

Criminal, and/or disciplinary sanctions against those responsible for retaliation.

1/3

Section 19 – Offences

No Civil penalties, but sections 14, 15 and 16 provide that a person may still be held liable for taking reprisal action.

Section 337BD – Civil penalties

Section 337BE Criminal offences

Section 1317AC prohibits victimisation including detriment and threats and includes a criminal offence.

13

Oversight authority

Oversight by an independent whistleblower investigation / complaints authority or tribunal.

1/3

Section 50A – The Ombudsman must be informed of decisions not to investigate.

Section 52 – The Ombudsman may extend time limits.

Section 62 – The Ombudsman must provide assistance in relation to the operation of the Act, conduct education and awareness. Section 74 – The Ombudsman may set standards.

However, no tribunal option, only court action is available.

Sections 337CA, 337CB provide for the Registered Organisations Commission to conduct investigations and extend time limits. It is unclear whether tribunal function is available or whether matters can only be pursued through the courts.

While ASIC has investigative powers and has established an Office of the Whistleblower, the Act does not appear to provide for further oversight functions or a tribunal.

14

Transparent use of legislation

Requirements for transparency and accountability on use of the legislation (e.g. annual public reporting, and provisions that override confidentiality clauses in employer-employee settlements).

1/3

Section 76 – The Ombudsman must prepare annual reports to Parliament.

Section 10 – May provide protection from confidentiality clauses.

The Act does not appear to have explicit requirements for annual reporting in relation to whistleblower protections.

Section 337B – May provide protection from confidentiality clauses.

The Act does not appear to have explicit requirements for annual reporting in relation to whistleblower protections.

Section 1317AB(1) – May provide protection from confidentiality clauses.

Potential additional areas for reform (The first column indicates which best practice criteria these reforms could apply to)

Protection for those handling disclosures

Internal recipients or staff required to take action in respect of a disclosure are protected for carrying out their duties in relation to the disclosure.

N/A

The Act does not appear to provide explicit protection for recipients of disclosures or people responsible for taking action on disclosures.

Sections 78(1) and 65(2) provide limited protection.

The Act does not appear to provide explicit protection for recipients of disclsoures or people responsible for taking action on disclosures.

The Act does not appear to provide explicit protection for recipients of disclsoures or people responsible for taking action on disclosures.

Protection for suspected whistleblowers

People suspected of being whistleblowers are protected from reprisals.

N/A

Section 13(1b) protects people suspected of making or proposing to make a public interest disclosure.

Section 337BA(1b) protects people suspected of making or proposing to make a public interest disclosure.

Section 1317AC – may protect against threats, but not actual detriment to person who may make a disclosure that would qualify for protection.

Continuity of protection

Protections remain in effect even if the conduct disclosed is subsequently determined to fall outside the definition of disclosable conduct.

N/A

This is implicit in s.26 threshold i.e. provided the discloser believes on reasonable grounds that the information tended to show disclosable conduct, then it is a public interest disclosure (and protections apply) even if it is later determined that there was no disclosable conduct.  However, it could be made more explicit.

Section 337A(1)(c) threshold, provided discloser had 'reasonable grounds to suspect that the information indicates one or more instances of disclosable conduct' then protections apply, irrespective of what is shown. However, could be made more explicit.

Section 1317AA(1)(d)

'has reasonable grounds to suspect that the information indicates' that the company or an individual 'has, or may have, contravened a provision of the Corporations legislation'. However, could be made more explicit.

Protections for suppliers and customers

Protections extending beyond individuals to businesses that may be suppliers or customers.

N/A

The Act only appears to protect individuals.

The Act only appears to protect individuals.

The Act only appears to protect individuals.