Whistleblower protection in Australia is offered for certain disclosures under a patchwork of laws at both federal and state level. Eligibility for protection depends on the requirements of the applicable law and the subject matter of the disclosure. Not all disclosures are protected by law in Australia. At federal level, whistleblowers face potential imprisonment for making disclosures about certain subjects, including national security and immigration matters. Transparency International Australia considers the protections for private sector whistleblowers to be generally weaker than for those in the public sector, with the main provisions found in corporations legislation that does not mandate any internal company procedures.
Contents
- General provisions
- National security
- Immigration law
- Private sector
- State and territory laws
- Queensland
- New South Wales
- Australian Capital Territory
- Victoria
- Tasmania
- South Australia
- Western Australia
- Northern Territory
- References
Australia's first whistleblower protection laws were introduced in Queensland following the recommendations of the Fitzgerald Inquiry. Laws have subsequently been introduced in other states and territories, culminating with the adoption of federal legislation with the passage of the Public Interest Disclosure Act 2013.
General provisions
The Public Interest Disclosure Act 2013 (PID Act) introduced a new comprehensive framework for protecting Commonwealth public sector whistleblowers. The PID Act is the legislation underpinning the Commonwealth Government’s Public Interest Disclosure (PID) Scheme to encourage public officials to report suspected wrongdoing in the Australian public sector. The PID Act arose in response to the report on Whistleblower Protection: a comprehensive scheme for the Commonwealth public sector by the House of Representatives Standing Committee on Legal and Constitutional Affairs. During the Committee’s Inquiry it was recognised that whistleblowers play an important role in ensuring accountability. As a result, those making disclosures needed to be protected from retribution.
The PID Act offers protection to ‘whistleblowers’ from reprisal action. The protection applies to public officials who disclose suspected illegal conduct, corruption, maladministration, abuses of public trust, deception relating to scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment or abuse of position or conduct which may be grounds for disciplinary action.
The Commonwealth Ombudsman has a significant role supporting and monitoring the administration of the whistle-blower scheme established under the PID Act. The Commonwealth Ombudsman is responsible for promoting awareness and understanding of the PID Act as well as providing guidance, information and resources about making, managing and responding to disclosures.
The unauthorised disclosure of Commonwealth information is a federal crime under section 70 of the Crimes Act 1914 that carries a penalty of two years imprisonment. The provision is often used to pursue whistleblowers and leaks by federal government employees and private contractors. Since the Abbott Government took office, federal agencies have referred journalists from journalists from the Guardian Australia, news.com.au and the West Australian using this provision in a bid to uncover the sources for immigration stories.
National security
The National Security Amendment Act (No 1) 2014 (Cth) amended the legislation governing ASIO to criminalise the disclosure of any information relating to a "Special Intelligence Operation". The Guardian noted that any act committed by ASIO could be declaration a Special Intelligence Operation with the Attorney-General's approval and removed from scrutiny.
Immigration law
Section 42 of the Australian Border Force Act 2015 (Cth) imposes a penalty of two years imprisonment for a whistleblower who makes a disclosure in relation to an Australian immigration detention facility, although section 42(2)(c) exempts a disclosure where it is "required or authorised by or under a law of the Commonwealth, a State or a Territory".
The Conversation considered whether the section 42(2)(c) exemption would apply so that a whistleblower could rely on the protections of Public Interest Disclosure Act 2013 (Cth). It found that the exemption might indeed apply, but would do so subject to several qualifications, such as:
Section 42 of the Australian Border Force Act 2015 (Cth) has been criticised by the Australian Lawyers Alliance for its potential chilling effect on whistleblowers and journalists.
Medical professionals who have worked at Nauru are launching a High Court challenge against the secrecy provisions of the Australian Border Force Act 2015.
Private sector
Transparency International Australia considers the protections for private sector whistleblowers to be weaker than for those in the public sector, with the main provisions found in corporations legislation that does not mandate any internal company procedures.
Part 9.4AAA of the Corporations Act provides a degree of protection.
State and territory laws
Apart from South Australia, the state and territory whistleblower protection laws only cover the public sector.
Queensland
Protection is currently offered by the Public Interest Disclosure Act 2010 (Qld).
New South Wales
Protection is currently offered by the Protected Disclosures Act 1994 (NSW).
Australian Capital Territory
Protection is currently offered by the Public Interest Disclosure Act 2012 (ACT).
Victoria
Protection is currently offered by the Whistleblowers Protection Act 2001 (Vic).
Tasmania
Protection is currently offered by the Public Interest Disclosures Act 2002 (Tas).
South Australia
Protection is currently offered by the Whistleblowers Protection Act 1993 (SA).
Western Australia
Protection is currently offered by the Public Interest Disclosure Act 2003 (WA).
Northern Territory
Protection is currently offered by the Public Interest Disclosure Act 2008 (NT).