© 2017 Sebastian De Brennan. Barrister at Law

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WHISTLEBLOWERS

November 29, 2017

WHISTLEBLOWERS

 

 

Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment and human rights law before acting or relying on any of its content.

 

A whistle-blower can be understood as an individual who exposes wrongdoing or corrupt conduct within an organisation. Whistleblowers can be subject to retaliation for their disclosures. This is especially common when the whistleblower is an employee of the organisation responsible for the wrongdoing or corrupt conduct. However, there are laws that operate specifically to protect whistleblowers.

 

NSW legislation

 

The primary legislative protections for whistleblowers in NSW are as follows:

 

Public Interest Disclosure Act 1994 (NSW)

  • Part 3 of the Act protects a public official who has made a 'public interest disclosure' against 'detrimental action' carried out in reprisal for the person making the disclosure. Put simply, if a public official can show that they are being punished for bringing an issue to light, they will be entitled to statutory protection against this retaliatory action.

  • 'Detrimental action' is defined to include action causing or involving:

- injury, damage or loss,

 

- intimidation or harassment,

 

- discrimination, disadvantage or adverse treatment in relation to employment,

 

- dismissal from, or prejudice in, employment,

 

- disciplinary proceedings.

 

  • In addition, the Act provides that no action, claim or demand may be made against a public official responsible for disclosure. In effect, they are given immunity from liability.

Work Health and Safety Act 2011 (NSW)

  • Part 6 of the Act prohibits 'discriminatory conduct' against a worker who has raised or proposes to raise an issue or concern about work health and safety.

  • 'Discriminatory conduct' can range from terminating the worker's employment (direct discrimination) to altering a persons' responsibilities in such a way as to disadvantage them (indirect discrimination e.g. increasing their workload).

Independent Commission Against Corruption (ICAC)

 

One of the principal functions of the Independent Commission Against Corruption (ICAC) is to investigate and expose corrupt conduct in the NSW public sector. There are specific legislative protections that come into effect when a person gives information to the ICAC:

 

Defamation Act 2005 (NSW)

  • Section 27 of the Act gives people who provide ICAC with information about suspected corrupt conduct immunity from liability for defamation. This is because giving evidence at ICAC is defined as an occasion of 'absolute privilege'.

Independent Commission Against Corruption Act 1988 (NSW)

  • Section 93 of the Act makes it a criminal offence to inflict or threaten harm or loss on a person who has assisted or given evidence before the ICAC.

  • Section 94 makes it an offence for an employer to dismiss an employee or otherwise prejudice them in their employment because they have assisted the ICAC.

Commonwealth legislation

 

Commonwealth legislation also offers a number of protections for whistleblowers:

 

Corporations Act 2001 (Cth)

  • Part 9.4AAA of the Act offers protection to officers, employees and independent contractors who want to disclose a breach of the Corporations Act by their company.

  • The person must make their disclosure to:

- ASIC;

- the company's auditor or a member of the company's audit team;

- a director, secretary or senior manager of the company; or

- a person authorised by the company to receive disclosures of that kind

 

  • Disclosure cannot be made anonymously; the person must identify themselves.

  •  

Fair Work Act 2009 (Cth)

  • Part 3-1 Division 3 of the Act prohibits a person from taking 'adverse action' against another person to prevent that person exercising a 'workplace right'. 'Adverse action' includes, but is not limited to, termination of employment, physical and/or psychological injury, alteration of an employee's position to their disadvantage and workplace discrimination.

  • Section 772(1)(e) of the Act provides that an employer is not allowed to terminate an individual's employment because they have made a complaint against the employer or started proceedings against them

Fair Work (Registered Organisations) Act 2009 (Cth)

  • Part 4A of the Act allows officers, employees and members of registered organisations to make protected disclosures of breaches of the Act or the Fair Work Act 2009 by their organisation.

  • The disclosure must be made to:

- the General Manager or a member of the Fair Work Commission,

- the Director of the Fair Work Building Industry Inspectorate, 

- a Fair Work Building Industry Inspector, or

- a member of the staff of the Office of the Fair Work Ombudsman.

  • Disclosure cannot be made anonymously; the person must identify themselves.

 

Public Interest Disclosure Act 2013 (Cth)

  • Part 2 of the Act gives protection to public officials who disclose reprisals against other persons in the workplace. Such disclosure must be in the 'public interest' in order to be protected, however.

  • A 'reprisal' can be broadly defined as any action against another person which results in detriment to that person (e.g. terminating their employment, altering their job description or actively discriminating between them and other employees).

  • A person who makes a public interest disclosure will be protected from any civil, criminal or administrative liability that would ordinarily flow from such disclosure. Further, no contractual remedy or right may be enforced or exercised against them (for example, termination of their employment contract).

  • Additionally, the individual has absolute privilege in proceedings for defamation.

Limitations of current framework

 

The legislative protections available to whistleblowers are quite fragmented and complex. They exist in various pieces of legislation that operate in different situations.

 

There are also significant gaps in the current framework. The main protections for private sector employees are found in the Corporations and Fair Work Acts which are fairly limited in scope to disclosures relating to breaches of the Acts themselves. Public sector employees may be afforded comparatively greater protection by virtue of the scope of the Public Interest Disclosure Acts, but the requirement that a disclosure be in the "public interest" may represent a difficult threshold for an employee to identify or reach. Also significant is the fact that the Public Interest Disclosure Acts do not apply to intelligence agencies/information, politicians or matters concerning public policy.

 

By Sebastian De Brennan, Barrister, s.debrennan@humanrightslaw.com.au

 

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