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).
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.
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
be aware of the whistleblower protection legislation in State(s) in which they operate;
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: