WHISTLEBLOWING
Blowing the Whistle: an overview on whistleblowing.
Whistleblowers are persons who make disclosures concerning unlawful conduct
in the hope that something will be done about it. Whistleblowers often receive a
mixed reception - being publicly applauded for standing up and exposing
wrongdoing, but being derided by fellow employees, victimised and sometimes
dismissed by the employer whose wrongdoing they have exposed. 'Dobbing' is
regarded by some as un-Australian. While the notion of what is and what isn't
Australian, is an artificial and unhelpful construct(1), the tradition of
turning a blind eye to wrongdoing is universal and common to communities
world-wide.
A whistleblower is a person who is willing to stand up against wrongdoing
often at great personal cost. It is widely recognised that the actions of
whistleblowers should be encouraged and that they should be afforded protection
against reprisals. In this edition of Employment Alert, we will examine
whistleblowing, and will look at the Victorian Whistleblowers Protection Act
2001 as well as some recent Federal initiatives.
Whistleblowers Protection Act 2001 (Vic)
Until recently, it has been left to the States to enact legislation to
regulate and protect whistleblowing. As already mentioned, Victoria has enacted
the Whistleblowers Protection Act 2001. The purpose of this Act is to protect
persons who make certain disclosures. To trigger the protections in this Act,
the whistleblower must be a natural person who believes on reasonable grounds
that a public officer or public body has:
- engaged in improper conduct in their capacity as a public officer or
public body, or
- has taken detrimental action against a whistleblower in reprisal for a
protected disclosure.
Furthermore, the disclosure must be made by the whistleblower to either the
Ombudsman or to the public body who is, or whose official is, the subject of the
disclosure.
Anonymous disclosures can be made and it is not necessary to be able to
identify the person or body to whom the disclosure relates. The disclosure can
be about past, present or future conduct. Both internal and external
whistleblowers are protected, i.e. employees of the public body as well as
members of the public who make the disclosure.
A critical failure of the Victorian Act is that it covers only the public
sector and does not apply to the corporate, unincorporated or charitable
sectors(2). This failure is shared by whistleblower protection legislation in
all the other States save for South Australia(3) where it extends into the
private sector. There are also wide differences between the States as to the
protections afforded to whistleblowers. As a result, there are some valid
questions to be asked as to whether the various State enactments provide
credible regimes and whether the laws instil confidence and offer sufficient
protection. Some even go as far as to say that 'There is a not a whistleblower
protection act in Australia that has ultimately protected a single
whistleblower'.(4).
Federal initiatives
There is, at this stage, no Federal whistleblower legislation. However, there
have been some recent developments on a Federal level in terms of which
whistleblowers are afforded protections for certain disclosures and in certain
circumstances. These developments have, most importantly, extended whistleblower
protection into the private sector by enacting legislation which applies to
constitutional corporations (i.e. incorporated bodies)(5). We set out some of
these developments below.
Trade Practices Act
The Federal Treasurer recently announced that the Trade Practices Act
1974 would be amended so as to introduce criminal penalties for serious cartel
conduct. The amendments will also include an immunity policy intended to provide
appropriate protection for whistleblowers (both individuals and corporations)
who come forward to uncover cartel conduct.
CLERP 9 and the Corporations Act
In 2002, the Federal Government produced its set of proposals on audit
regulation and wider corporate disclosure as part of its Corporate Law Economic
Program, known as CLERP 9. Amongst other things, CLERP 9 amended the law to
provide certain immunities for and protection from retaliation for officers and
employees of companies and subcontractors throughout Australia who report a
suspected breach of the law in good faith and on reasonable grounds. This
particular amend- ment was incorporated into the Corporations Act 2001 as 'Part
9.4AAA - Protection for whistleblowers' and came into effect on 1 July 2004.
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004
The Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 (the
Act) was enacted and came into operation in 2004. It amended the Workplace
Relations Act 1996 in various respects, including by providing‘whistleblower’
protections for members, officials and employees of registered organisations (eg
trade unions) who report suspected breaches by their organisation to certain
designated officials6.
Australian Standard on whistleblowing
Australian Standard AS 8804 (Whistle-blower protection programs for entities)
was published in 2003 and provides elements for establishing, implementing and
managing an effective whistleblower protection scheme within an entity and
provides guidance when using these elements7. This Standard is intended to be a
practical guide for corporations, government (6)
http://www.workplace.gov.au (7)
Preface to AS 8004 - 2003 agencies and not-for profit entities wishing to
implement a whistleblower protection program(8).
Implications for employers
Employers should:
- be aware of the whistleblower protection legislation in State(s) in which
they operate;
- keep abreast of the Federal developments; and
- consider implementing suitable whistleblower protection policies.
The importance of a proper policy cannot be over-emphasised as it should set
out the internal disclosure structures that will allow matters to be
investigated, and hopefully resolved, at the earliest opportunity. A
well-drafted and properly implemented policy is also a key element in
establishing a corporate culture that encourages openness, transparency and
disclosure at all levels of the organisation.
This Employment Alert is of a general nature only. Specific legal advice
should be sought rather than relying on this Alert. If you require further
information on whistleblowing, please contact:
Peter Andrew Consultant Tel: (03) 9843 2108 Email:
pandrew@mooreslegal.com.au
Frances Anderson Lawyer Tel: (03) 9843 2122 Email:
fanderson@mooreslegal.com.au
1 See 'Just who is un-Australian', Hugh MacKay The Age, 20 June 2005.
2 Parliamentary Research Note 14 February 2005.
3 Whistleblowers Protection Act 1993 (SA).
4 A comment by Isla McGregor in 'Blowing the whistle; the costs of speaking
out', Fiona Armstrong, Australian Nursing Journal, vol 9 no 7 18 - 20 at 20.
5 Parliamentary Research Note 14 February 2005 Employment Alert – July 2005.
6 http://www.workplace.gov.au
7 Preface to AS 8004 - 2003
8 AS 8004 - 2003
