4.1
This chapter uses the best practice criteria for whistleblowing
legislation set out in the Breaking the Silence report to provide a high-level comparison
of the whistleblower protections for the public sector, registered
organisations and corporations.[1]
4.2
The best practice criteria from the Breaking the Silence report provide
an opportunity to conduct systematic comparison of whistleblower protection
legislation. Noting the 20 plus statutes identified in Chapter 3 and the
advantages to be gained from consistency, the committee has chosen to compare
the whistleblower protections in the following Acts, because they illuminate
the main areas of focus for this inquiry:
4.3
This chapter provides a comparison summary created by the committee in
tabulated form as Table 4.1. Table 4.1 compares the PID Act, the FWRO Act,
and the Corporations Act against the 14 best practice criteria identified in
the Breaking the Silence report. The basis of the comparison between the PID
Act and Corporations Act whistleblower protections shown in columns one to four
is drawn from the Breaking the Silence report.
4.4
Column four of Table 4.1 provides a comparative rating between the PID
Act and the Corporations Act based on the Breaking the Silence Report:
4.5
The additional comparisons and information (including the more recent
FWRO Act whistleblower protections developed after the Breaking the Silence
report) shown in the last three columns are based on evidence received by the
committee during the inquiry and the committee's understanding of the above
three Acts.
4.6
The colours used in the last three columns compare the performance of
the PID Act, the FWRO Act, and the Corporations Act against the respective
criteria:
4.7
The committee acknowledges that the comparisons and the information in Table
4.1 represent a high level summary, and the committee recognises that future
legislative change may improve on the details of the provisions.
4.8
In addition to a comparison against the best practice criteria, a number
of other potential areas for reform are included in the last section of Table 4.1.
4.9
The committee's recommendations for reform based on Table 4.1 are set
out in subsequent chapters.
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;
-
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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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.
|
Sources: The above columns
represent the committee's analysis of PID Act, FWRO Act and Corporations
Act.