In Australia, whistle-blowers play an important role in promoting transparency and accountability across private and public sector organizations by reporting inappropriate behavior and wrongdoing to protect the public interest.
Numerous Australian statutes extend significant protection to whistle-blowers, to encourage them to disclose their information without the risk of liability or other adverse consequences.
In Australia, whistle-blowers are protected under a range of state and federal statutes. The main federal whistle-blower laws in Australia are the Public Interest Disclosure Act 2013 (Cth), Fair Work (Registered Organizations) Act 2009 (Cth) and Corporations Act 2001 (Cth). State, territory and other legislation such as the
Work Health and Safety Act 2011 (Cth) may also provide protection to whistle-blowers. Many state and territory laws apply in particular to whistle-blowing with respect to conduct in the public sector.
Depending on the applicable legislation, whistle-blowers may include individuals generally; current and former public officials; officers, employees and members of an organization; and a person who has or had a contract for the supply of services or goods to an organization, officer or employee of the organization. Federal laws tend to apply to a more confined group of whistle-blowers, while state and territory whistle-blower protections often extend to any person who discloses public interest information.
In some cases, whistle-blowing complaints are made directly to, and must be handled by, the receiving organization or employer. Other complaints may be made to relevant authorities, such as the Fair Work Commission, Fair Work Ombudsman, Australian Securities and Investment Commission and the Commonwealth Ombudsman.
Whistle-blowers will generally need to have reasonable grounds to suspect that the information indicates one or more instances of improper conduct (as defined by the relevant law) and make their disclosure in good faith.
Depending on the relevant legislation, the discloser may remain anonymous. For example, the Public Interest Disclosure Act 2013 (Cth) allows whistle-blowers to remain anonymous when making a disclosure. A similar approach is taken in most state-based whistle-blower legislation. Some legislation requires whistle-blowers to provide their name to the relevant authority when making their disclosure. However, whistle-blower legislation also often makes it an offense for a person who receives or is aware of a disclosure to disclose the identity of the whistle-blower.
Scope of protection
Whistle-blowers are generally not subject to any civil or criminal liability in relation to a disclosure, although the scope of protection varies. Whistle-blower laws also usually prohibit reprisal action or threats to cause detriment to whistle-blowers.
When responding to whistle-blower complaints, organizations must refer to the procedures and protections outlined in the relevant legislation; these will vary depending upon the applicable law. However, as a general guide, often an investigation will be required and potentially referral to an external body. At all times, care must be taken to protect the whistle-blower.
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.