Protected Disclosure "Whistleblower" Legislation now Enacted all over the Commonwealth

With the bulk of the remaining provisions of the Public Interest Disclosure Act 2013 (No. 133 of 2013) (the Commonwealth Act) having commenced on 15 January 2014 (Sections 3 to 83), it can now be said that legislation covering this area is now national. Given this, it seems purposeful to provide an update on this type of legislation, often referred to as 'Whistleblower Legislation" around the Commonwealth at Federal and State level.

Commonwealth

As already mentioned, the Commonwealth Act fully commenced on 15 January 2014 and, as we have posted in a previous blog, Whistleblowers will now have more rights and protections under the Commonwealth Act. The Commonwealth Act had strong bipartisan support when it was introduced and generally implemented the then Government’s 2010 Response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistle Blower Protection.

The Commonwealth Act provides a comprehensive scheme for the Commonwealth public sector establishing a statutory regime to investigate claims of misconduct in the Commonwealth public sector and provides strong protections for present or previous public officials who make qualifying public interest disclosures under the regime.

New South Wales

In NSW, the Public Interest Disclosures Act 1994 (No. 92 of 1994) has been in place since 1 March 1995 as the key legislation providing protection for public officials disclosing corrupt conduct, maladministration, waste, government information contravention and local government pecuniary interest contravention in the public sector. It was last amended in 2010 by the Protected Disclosures Amendment (Public Interest Disclosures) Act 2010 to implement the recommendations of the report by the Joint Committee on the Independent Commission Against Corruption entitled Protection of public sector whistle blower employees published in November 2009.

The amendments also implemented recommendations in the report to clarify and extend protections to certain whistle blowers, in particular, a recommendation that a public official be entitled to protection so long as a disclosure is made with an honest belief on reasonable grounds that information shows or tends to show wrongdoing as against a test requiring information disclosed to actually show or tend to show wrongdoing. This test said to be more practical, giving protection to public officials who have reasonable grounds for believing that wrongdoing has occurred even if it turns out to be incorrect.

Victoria

In Victoria, the Protected Disclosure Act 2012 (No. 85 of 2012) is the key legislation encouraging and facilitating disclosures of improper conduct by public officers, public bodies and other persons or of detrimental action taken in reprisal for a disclosure. The Act also provides protection for persons who make those disclosures and provides for the confidentiality of the content of those disclosures and the identity of persons who make those disclosures.

Integrity reforms to Victoria’s protected disclosure regime effective in 2013 saw amendments made to the Ombudsman Act 1973 and the replacement of the Whistle blowers Protection Act 2001 with the Protected Disclosure Act 2012. Whistle blower protection was integrated into a new integrity system comprising:

• the Independent Broad-based Anti-corruption Commission (IBAC) (established to promote integrity and accountability across the Victorian public sector),
• the Victorian Inspectorate (VI), whose role is to oversee both the IBAC and the Ombudsman, and
• the Accountability and Oversight Parliamentary Committee which has oversight of the Freedom of Information Commissioner (FOI Commissioner) and Victorian Ombudsman.

Under the Protected Disclosure Act 2012, complaints can be made about improper conduct in the public sector without a person suffering detrimental action in reprisal with the protection from detrimental action extending not only to the person making the disclosure but including witnesses and persons the subject of an investigation.

Other States and Territories

In Queensland the matter is covered by the Public Interest Disclosure Act 2010 (No. 38 of 2010), while in Western Australia, the Public Interest Disclosure Act 2003 (No. 29 of 2003) provides this type of legislative protection for government "whistle blowers".

The remaining jurisdictions have also enacted similar legislation as follows:

• Tasmania (Public Interest Disclosures Act 2002 (No. 16 of 2002));
• South Australia (Whistleblowers Protection Act 1993 (No. 21 of 1993))
• Australian Capital Territory (Public Interest Disclosure Act 2012 (No 43 of 2012)
• Northern Territory (Public Interest Disclosure Act (No. 38 of 2008)).

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

• Legislative information sourced from the TimeBase LawOne Service.
• Integrity Alert – New Protected Disclosure Regime in Victoria (Gadens website - 19/02/2013)
• Protected Disclosures in Victoria (Justitia website - 13 February 2014)