Whistleblowing protections gain momentum

Closeup of businessman with whistle

There’s plenty happening at both federal and state levels when it comes to strengthening whistleblower protections in Australia.

On 8 February 2018, the Senate referred the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 to the Senate Economics Legislation Committee for an inquiry. It must report back by 16 March.

The bill proposes to amend the Corporations Act 2001 and the Taxation Administration Act 1953 to extend corporate whistleblower protections and to introduce new protections for tax whistleblowers.

At a state level, the Victoria government has also been overhauling state legislation to give Victorians who blow the whistle on public sector corruption and wrongdoing greater protections.

It introduced the Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018 to Parliament in February to amend the Protected Disclosure Act 2012.

Special Minister of State Gavin Jennings says under the new package, whistleblowers will be not be liable for court costs if they fail to win compensation for alleged reprisals under the Protected Disclosure Act (which is to be renamed the Public Interest Disclosure Act). In addition, confidentiality provisions have been relaxed to allow greater access to support services.

Under the changes, those claiming to have suffered detriment as a reprisal for whistleblowing would only have costs awarded against them if the court decided their claim was vexatious or that their litigation was conducted unreasonably.

Other key aims of the reforms include ‘expanding and clarifying the types of public sector improper conduct that a person can disclose’ and ‘increasing the pathways for making disclosures and simplifying confidentiality obligations’, says Jennings.

Meanwhile, businesses will be able to report corruption in procurement and regulation under a strong new whistleblower protection scheme by mid-year when the Northern Territory’s Independent Commissioner Against Corruption (ICAC) is up and running.

This follows the passing of new anti-corruption laws by the NT Parliament in February which arm ICAC with comprehensive investigation powers.

And, in another state move, a New South Wales parliamentary committee has made a range of recommendations aimed at better protecting the state’s whistleblowers.

This follows the committee’s review of the NSW Public Interest Disclosures Act (PID Act) 1994 which provides protection to public officials who raise issues of corruption, maladministration, waste of public money and government information contraventions in their workplaces.

The committee’s chair Lee Evans says the committee found gaps or technicalities in the legislation that could cause people who make disclosures to miss out on protections.  

‘We have therefore recommended that the PID Act be amended to protect reporters who make a disclosure to the wrong public authority and that public sector agencies be required to nominate a sufficient number of employees to receive public interest disclosures.

‘We have also recommended that reporters can be deemed to be a public official for the purposes of the Act. This aims to afford protection to people who become aware of public sector wrongdoing but are not covered by the Act, for example, former public officials, subcontractors or public officials from other jurisdictions.’

The committee has also suggested that the state’s whistleblower protections be enhanced and steps taken to better support whistleblowers if a case is taken to court.

‘People who have made a public interest disclosure should be able to claim for any remedy, including exemplary damages, if they are found to have experienced detrimental action, and should not have to pay the costs of such proceedings,’ says Evans.

‘At the same time, the bar of proof for detrimental action should be lowered.’

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