Consistency of whistleblower protections
3.60 The committee
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.
5.31 The committee recommends that, in implementing the Moss
Review recommendation regarding employment related matters care is taken to
allegations of reprisal action taken against a person that has made a
public interest disclosure can still be dealt with under a Whistleblowing
Protection Act; and
data is gathered and assessed in
a national database on the proportion of disclosures that are personal
employment related, but that this not have to occur before any legislative
changes are made as recommended in this report.
5.48 The committee recommends, in relation to whistleblower
protections for the private sector, including the corporate and not-for-profit
sectors, that disclosable conduct be defined to include:
a contravention of any law of the
any law of a state, or a territory
the disclosure relates to the employer of the whistleblower and the
employer is an entity covered by the Fair
Work Act 2009; or
the disclosure relates to a constitutional corporation; and
any breach of an industry code or professional standard that has force
in law or is prescribed in regulations under a Whistleblowing Protection Act;
but not where the disclosure relates to a breach of law by the public
service of a state or territory.
5.51 The committee recommends that the government examine
whether the Commonwealth has the constitutional power to include additional
lower thresholds for disclosable conduct that would adequately protect
whistleblowers such as those involved in scandals in the financial service
sector in recent years.
of whistleblowers and thresholds for protection
6.19 The committee recommends that section 69 of the Public Interest Disclosure Act 2013 be amended to make it explicit
that former public officials, as well as current and former contractors to the Australian
Public Service, are able to make public interest disclosures.
6.23 The committee recommends that all private sector
whistleblower protection legislation include protections for current and former
staff, contractors and volunteers.
6.30 The committee recommends that protections in both the
public and private sector be made consistent for threats or actual reprisals
against people who:
have made a disclosure;
propose to make a disclosure;
could make a disclosure but do not propose to; or
may be suspected of making, proposing to make, or be capable of
making, a disclosure, even if they do not make a disclosure.
6.35 The committee recommends that protections for
recipients of disclosures in both the public and private sectors be made
consistent, and cover the performance of any and all functions required of recipients
or others required to take action in relation to disclosures, without regard to
committee recommends that an inquiry be conducted by either a parliamentary
committee or the Australian Small Business and Family Enterprise Ombudsman into
protections for reprisals against businesses where whistleblowers in those
businesses make public interest disclosures about disclosable conduct by larger businesses.
6.60 The committee recommends that:
the 'good faith' test not be a requirement for protections under
whistleblowing protection legislation; and
a person be required to have a reasonable belief of the existence of
disclosable conduct to receive protections under a Whistleblowing Protection
7.24 The committee recommends that private sector whistleblowing
legislation (including legislation covering corporations and registered
organisations) explicitly allow, and provide protections for, anonymous
disclosures consistent with public sector legislation.
7.28 The committee recommends that continuity of protection
be made explicit in a consistent way for both the public and private sector
whistleblowing protection legislation.
7.45 The committee recommends that protections for
confidentiality be unified across the public and private sectors (including
registered organisations), bringing together the best features of the Public Interest Disclosure Act
(such as sections 20 and 21) and other Acts, including offences for:
disclosure or use of identifying information or information likely to
lead to the identification of the discloser;
protection of the identity of disclosers in courts or tribunals.
regulatory, and external reporting channels
8.10 The committee recommends that whistleblower
protections be extended to internal disclosures within the private sector, to
any person within the management chain for the whistleblower within the
any current officer of the company, or that company's Australian or
ultimate parent; and
any person specified in a policy published and distributed by an
employer (or principal) of the whistleblower.
8.19 The committee recommends that a Whistleblowing
Protection Act should provide consistent whistleblower protections for
regulatory disclosures from the public and private sectors.
to Australian Law Enforcement Agencies
8.20 The committee recommends that where a whistleblower
discloses a protected matter to an Australian law enforcement agency, that
agency must provide regular updates to the whistleblower as to whether or not
it is pursuing the matter, including where it transfers the matter to another
law enforcement agency, in which case obligations to keep the whistleblower
informed are transferred to that agency. However, nothing that would prejudice
an investigation is required to be disclosed.
8.21 The committee recommends that Australian law
enforcement agencies should be required to pass on whistleblower disclosures to
whichever appropriate agency is to progress the disclosure. The whistleblower
does not need to do this, if they have complied with the disclosure
requirements of the Act.
8.43 The committee recommends that the existing
whistleblower protections for external disclosures in the Public
Interest Disclosure Act 2013 be simplified (including a more objective test) and extended
to disclosures to a registered organisation, a federal Member of Parliament or
their office, and be included in a Whistleblowing Protection Act, except the
provisions relating to intelligence functions which should continue to apply to
the public sector only.
8.44 The committee recommends that if a disclosure of
disclosable conduct has been made to an Australian law enforcement agency and
after a reasonable time, no steps have been taken by that or any other agency
(excluding where the whistleblower has elected to make an anonymous disclosure)
whistleblowing protections shall apply if the same disclosure is subsequently
made to the media if they have complied with the disclosure requirements of
remedies and sanctions for reprisals
10.38 The committee recommends that the Fair Work (Registered Organisations)
Act 2009 be amended to separate the grounds for civil and criminal liability.
10.39 The committee recommends that a Whistleblowing
Protection Act reflect whistleblower protections, remedies and sanctions for
reprisals in the
(Registered Organisations) Act 2009, including:
protection from harassment, harm including psychological harm and
damage to property or reputation;
including civil penalties; and
the grounds for criminal and civil liability.
10.42 The committee recommends that current provisions in
section 14 of the Public
Interest Disclosure Act 2013, which clarify the options for courts/tribunals in
apportioning liability for compensation between individuals and organisations,
extend to apply to the private sector.
11.58 The committee recommends that following the imposition of
a penalty against a wrongdoer by a Court (or other body that may impose such a
penalty), a whistleblower protection body (such as that recommended in Chapter
12) or prescribed law enforcement agencies may give a 'reward' to any relevant
The committee recommends that such a reward should be
determined within such body's absolute discretion within a legislated range of
percentages of the penalty imposed by the Court (or other body imposing the penalty)
against the whistleblower's employer (or principal) in relation to the matters
raised by the whistleblower or uncovered as a result of an investigation
instigated from the whistleblowing and where the specific percentage allocated
will be determined by the body taking into account stated relevant factors,
the degree to which the whistleblower's information led to the
imposition of the penalty;
the timeliness with which the disclosure was made;
whether there was an appropriate and accessible internal
whistleblowing procedure within the company that the whistleblower felt comfortable
to access without reprisal;
whether the whistleblower disclosed the protected matter to the
media without disclosing the matter to an Australian law enforcement agency or
did, but did not provide the agency with adequate time to investigate the issue
before disclosing to the media;
whether adverse action was taken against the whistleblower by
whether the whistleblower received any penalty or exemplary
damages (but not compensation) in connection to any adverse action connected with
the disclosure; and
any involvement by the whistleblower in the conduct for which the
penalty was imposed, noting that immunity from prosecution, seeking a reduced
penalty against the whistleblower etc. is dealt with by separate processes and
that a reward would be regarded as a proceed of crime, if the whistleblower had
been involved in criminal conduct (i.e. immunity or reduced penalty, not the
reward is the benefit and incentive).
12.84 The committee recommends that a one-stop shop
Whistleblower Protection Authority be established to cover both the public and
private sectors as follows:
a Whistleblower Protection Authority be established in an appropriate
a Whistleblower Protection Authority be prescribed as an investigative
agency with power to investigate criminal reprisals and make recommendations to
the Australian Federal Police or a prosecutorial body and non-criminal
reprisals against whistleblowers;
a Whistleblower Protection Authority have power to investigate and
oversight any investigation of a non-criminal reprisal undertaken by a
regulator or public sector agency;
a Whistleblower Protection Authority be prescribed to take
non-criminal matters to the workplace tribunals or courts on behalf of
whistleblowers or on the authority's own motion to remedy reprisals or detrimental outcomes in appropriate cases;
any other necessary legislative changes are made to ensure that a
Whistleblower Protection Authority is able to investigate non-criminal
reprisals, including providing it with appropriate powers to obtain the
that the public sector whistleblower protection oversight functions be
moved from the Commonwealth Ombudsman to the Whistleblower Protection
that the Whistleblower Protection Authority, in
consultation with relevant law enforcement agencies, approve the payment of a
wage replacement commensurate to the whistleblower's current salary to a
whistleblower suffering adverse action or reprisals; and
that the Whistleblower Protection Authority have the oversight
functions for the private sector excluding the functions relating to the
Inspector-General of Intelligence and Security.
12.85 The committee
recommends that where a whistleblower is the subject of reprisals from their
current employer, or a subsequent employer/principal due to their
whistleblowing, the Whistleblower Protection Authority be authorized, after
consulting with relevant law enforcement agencies to which the conduct relates,
to pay a replacement wage commensurate to the whistleblower's current salary as
an advance of reasonably projected compensation until the resolution of any
compensation or adverse action claim brought by the whistleblower (where such
advance payment would be repaid to the Whistleblower Protection Authority from
such compensation if awarded).
committee recommends that, if the Government implements legislation as per the
Moss Review recommendation 6, that a Whistleblowing Protection Act should
include consistent whistleblower protection between the public and private
sectors and include reprisals within the definition of disclosable conduct
whether or not the reprisal relates to personal employment-related grievances.
committee recommends that a Whistleblowing Protection Act include specific
requirements for the investigation of disclosures and reprisals that are
consistent with the present Public
Interest Disclosure Act 2013 and the Fair
Work (Registered Organisations) Act 2009.
committee recommends that the public and private sector whistleblower
legislation include consistent provisions that allow civil proceedings and
remedies to be pursued if a criminal case is not pursued.
committee recommends that the compensation obtainable by a whistleblower
through a tribunal system be uncapped.
committee recommends that the Whistleblower Protection Authority be given
powers to set standards for internal disclosure procedures in the public sector
(where internal disclosure should be mandated before external disclosures are
permitted) and private sector (which may include mandatory internal disclosures
in organisations above a prescribed size and recommended approaches for others).
committee recommends that the Whistleblower Protection Authority provide annual
reports to Parliament, and that the information on the public and private
sectors be closely aligned in format and content to facilitate comparison.
12.106 The committee recommends that provisions that
override confidentiality clauses in employer-employee agreements or settlements
be made consistent in public and private sector whistleblower legislation
(including maintenance of public sector security and intelligence exceptions).
committee recommends that it be made explicit in a Whistleblowing Protection
Act that nothing in the legislation allows for or permits a breach of legal professional
The committee recommends that there be a statutory requirement for a
post-implementation review of the new whistleblower legislation, within a
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