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Policy Position – Whistleblower protections

Whistleblowing plays a critical role to play in identifying and stopping misconduct. It is a vitally important aspect of an organisations’ overall programs to ensure compliance with regulation and prevent and detect misconduct. Currently, Australian whistleblower protection laws are a complex patchwork, including: the Commonwealth Public Interest Disclosures Act, the Fair Work (Registered Organisations) Act, the Corporations Act, the Aged Care Act, the Taxation Administration legislation as well as State legislation.

The area is complex to understand, complex to administer and confusing for anyone contemplating speaking up about unlawful, unethical or irresponsible behavior. This patchwork of provisions expect an unrealistic level of sophistication on the part of whistleblowers to be able to analyse and understand which legislation and which regulator covers misconduct. A whistleblower should not need a nuanced knowledge of the applicable legal and regulatory frameworks to know to which regulator or law enforcement agency they should make their disclosure to qualify for protection.

Governance Institute advocates that there should be a sector agnostic, comprehensive whistleblower protection mechanism. This includes a consistent whistleblower protection regime for both the private and public sectors, so that duplicative or different rules deter whistleblowers or confuse employers about whether or how protections apply.
Harmonisation of protections would eliminate the current gaps in protection coverage (for example, for private sector employees including consultants who ‘blow the whistle’ on public sector wrongdoing, or public sector employees concerned about the behaviour of private sector employees, including consultants, so that no-one is in doubt which protections apply to them.

This will also make it easier, and more cost-efficient for government, individual agencies, and businesses if simpler, consistent protections apply across the board, rather than the current piecemeal situation involving different regulators, which each lack sufficient resources.

Governance Institute also advocates for the establishment of an independent Whistleblower Protection Authority. That is, an independent, single source, sector agnostic authority for whistleblower protections, which would provide the necessary clarity and confidence for potential whistleblowers across all sectors to report unlawful and unethical behavior. Knowing what support for whistleblowers is provided, and knowing how to access this support are some of the strongest predictors that a whistleblower will be well-treated.

Governance Institute endorses the Transparency International, Griffith University and Human Rights Law Centre Draft Design Principles for a Whistleblower Protection Authority, as well as their Federal Roadmap report.

Governance Institute recommends:
• The establishment of a sector agnostic, comprehensive whistleblower protection mechanism, including a consistent whistleblower protection regime for both the private and public sectors through a stand-alone, general whistleblower protection regime in its own Act (applicable to the private sector).
• The establishment of an independent Whistleblower Protection Authority.
• Harmonisation of whistleblower protections across all sectors.

April 2024