Whistleblowing legislation in Queensland The agenda for reform A J Brown Griffith University Final Report to the Queensland Government of the Australian Research Council Linkage Project: Whistling While They Work: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations September 2009 Contents The author ..................................................................................................................... ii
Acknowledgements ....................................................................................................... ii
Summary of recommendations ....................................................................................... iii
Part I. Background ........................................................................................................ 1
1. Introduction .............................................................................................................. 1
2. The research ............................................................................................................. 2
3. Whistleblowers Protection Act 1994 (Qld) in context ............................................. 4
Part II. Reform of Whistleblowers Protection Act 1994 (Qld)..................................... 9
1. Objectives and title................................................................................................... 9
2. Subject matter of disclosure ................................................................................... 11
3. Person making disclosure....................................................................................... 12
4. Receipt of disclosure .............................................................................................. 14
5. Recording and reporting......................................................................................... 15
6. Acting on a disclosure............................................................................................ 15
7. Oversight agency.................................................................................................... 17
8. Confidentiality........................................................................................................ 20
9. Protection of person making disclosure ................................................................. 21
10. Disclosure outside an agency ............................................................................... 22
11. Agency responsibility to ensure protection.......................................................... 26
12. Remedial action.................................................................................................... 28
12. Remedial action.................................................................................................... 28
13. Ongoing assessment and protection ..................................................................... 34
Part III. Restoring Queensland as national leader .................................................... 35
1. Non-whistleblower complainants and informants –
consistent, but separate justice............................................................................ 35
2. Private sector whistleblower protection – taking the initiative.............................. 40
References ...................................................................................................................... 47
Appendix 1 – Select Queensland complainant and
witness protections (all complainants) ............................................................... 49
ii
The author A J Brown is John F Kearney Professor of Public Law, Griffith Law School, Griffith
University, and project leader of the Australian Research Council Whistling While They
Work project.
His former roles include Senior Investigation Officer, Commonwealth Ombudsman
(1993-1997); Associate to Justice G E 'Tony' Fitzgerald AC, President, Queensland Court
of Appeal (1998); and Ministerial Policy Advisor to the Hon Rod Welford MLA,
Minister for Environment, Heritage and Natural Resources, Queensland Government
(1998-99).
He is also a former Senior Research Fellow and Director of the Integrity and Corruption
Research Program, Key Centre for Ethics Law Justice and Governance, Griffith
University; and was lead author of Chaos or Coherence? Strengths, Opportunities and
Challenges for Australia's Integrity Systems (2005), the Final Report of the National
Integrity Systems Assessment (NISA), published by Griffith University and
Transparency International.
Email A.J.Brown@griffith.edu.au.
Acknowledgements This report was produced as part of the national research project ‘Whistling While
They Work: Enhancing the Theory and Practice of Internal Witness Management in
the Australian Public Sector’ (see www.griffith.edu.au/whistleblowing). This
research was made possible by support from the Australian Research Council
(Linkage Project LP0560303) and the partner organisations to the project:
Commonwealth
Commonwealth Ombudsman
Australian Public Service Commission
New South Wales
Independent Commission Against Corruption
New South Wales Ombudsman
Queensland
Crime & Misconduct Commission
Queensland Ombudsman
Public Service Commission
Western Australia
Corruption & Crime Commission
Ombudsman Western Australia
Office of the Public Sector Standards
Commissioner
Victoria
Ombudsman Victoria
Northern Territory
Commissioner for Public Employment
Australian Capital Territory
Chief Minister’s Department
Non-government partner
Transparency International Australia
The author thanks all project partners, colleagues on the project research team, and
participating agencies for their support and direct and indirect contributions to these
results. The findings and views expressed are those of the author and do not
necessarily represent the views of the Australian Research Council or the partner
organisations in the project.
Whistleblowing Legislation in Queensland: The Agenda for Reform iii
Summary of recommendations Reform of Whistleblowers Protection Act 1994 (Qld)
1. Objectives and title
No major
reform needed
Reform
needed
Reform
imperative
2.
Subject matter of disclosure
No major
reform needed
Reform
needed
Reform
imperative
3.
Person making disclosure
No major
reform needed
Reform
needed
Reform
imperative
4.
Receipt of disclosure
No major
reform needed
Reform
needed
Reform
imperative
5.
Recording and reporting
No major
reform needed
Reform
needed
Reform
imperative
6.
Acting on a disclosure
No major
reform needed
Reform
needed
Reform
imperative
7.
Oversight agency
No major
reform needed
Reform
needed
Reform
imperative
8.
Confidentiality
No major
reform needed
Reform
needed
Reform
imperative
9.
Protections for disclosure
No major
reform needed
Reform
needed
Reform
imperative
10. Disclosure outside an agency
No major
reform needed
Reform
needed
Reform
imperative
11. Agency responsibility to protect
No major
reform needed
Reform
needed
Reform
imperative
12. Remedial action
No major
reform needed
Reform
needed
Reform
imperative
13. Ongoing assessment and protection
No major
reform needed
Reform
needed
Reform
imperative
Objectives and title
Recommendation 1. That s 3 of the Act be amended to state its legislative objectives
in terms similar to s 3 of the Protected Disclosures Act 1995 (NSW)
Recommendation 2. That the Act be retitled the Public Interest Disclosure Act.
iv
Subject matter of disclosure
Person making disclosure
Recommendation 3. That Part 3 of the Act be amended to provide that a public
interest disclosure on any matter may be made by:
• a public contractor (in respect of their contracts or the public agency with
which they contract), an employee of a public contractor (in respect of the
delivery of publicly-funded services by the contractor, or the public agency
with which their employer contracts), or a volunteer who is de facto an
unpaid public official or employee of a public contractor; or
• a public officer, public contractor, employee of a public contractor, or public
volunteer who has ceased to work in that capacity or hold that contract.
Further, that if the Commonwealth proceeds with a 'deeming' provision for who may
make a public interest disclosure, consideration be given to including such a
provision in the Queensland Act.
Recommendation 4. That s 14(2) of the Act be amended to provide that a disclosure
will trigger the Act, either (a) if the person making it honestly believes on reasonable
grounds that the information tends to show the conduct or danger, or (b) if the
information does tend to show relevant conduct or danger, irrespective of what the
person believed it to show at the time they made the disclosure.
Receipt of disclosure, Recording and reporting
Acting on a disclosure
Recommendation 5. That a new Part 5 be inserted in the Act (also replacing the
current ss 30-32) providing minimum duties and standards for the assessment and
investigation of disclosures under the Act, for the provision of information about
action taken to persons who make disclosures, and for public and parliamentary
reporting on the Act's operation.
Oversight agency
Recommendation 6. That a new Part be inserted in the Act (also replacing the
current s 31) establishing a new framework for oversight and coordination of the
implementation of the Act, including a designated agency or unit with a
clearinghouse and quality assurance role for individual investigations, and
responsibility to promote, support and require best practice agency whistleblowing
programs.
Confidentiality
Recommendation 7. That sub-section 55(3) of the Act be amended to provide that a
person may make a record of confidential information or disclose it to someone else,
for purposes including the protection of any person under the Act, including a person
who has made a public interest disclosure – provided that information which
identifies or could tend to identify a person who has made a public interest
disclosure may only be disclosed with the prior, informed consent of that person, or,
if consent is impossible to obtain, where the interests of that person are not harmed
and there is reasonable excuse to do so.
Whistleblowing Legislation in Queensland: The Agenda for Reform v
Protections for person making disclosure
Recommendation 8. That sub-s 42(1) of the Act be amended to provide that 'any
person' – not just 'a public officer' – who takes a reprisal commits an offence.
Disclosure outside an agency
Recommendation 9. That a new section be inserted in the current Part 5 of the Act,
to the effect that ss 39-43 of the Act will also apply to a public interest disclosure
made to a third party, including a journalist, where the matter:
• has already been disclosed internally to the agency concerned and to an
external integrity agency of government, or to an external integrity agency
alone, and not been acted on in a reasonable time having regard to the nature
of the matter; or
• is exceptionally serious, and special circumstances exist such as to make prior
disclosure, internally or to an external integrity agency, impossible or
unreasonable (for example, in some circumstances involving serious and
immediate threat to public health or safety).
Agency responsibility to ensure protection
Recommendation 10. That s 44 of the Act be replaced with a new, more detailed
section providing that:
•
it is the responsibility of the CEO and management of each agency to ensure
that appropriate action is taken on all public interest disclosures, and that
appropriate support and protection is provided to employees; and
•
each agency must develop and implement a whistleblowing program which
addresses all the requirements in principle 11, the Australian Standard, and
the guidelines or model code developed by the oversight agency.
Remedial action
Recommendation 11. That s 43 of the Act be amended to provide that:
•
Damages may also be sought against any person who, through act or
omission, fails to take reasonable steps to protect a person from detriment
that could reasonably be foreseen to befall them as a result of a person
having made a public interest disclosure;
•
The liability of a person or organisation under s 43 is unaffected by the fact
that any person (including the defendant, or an employee or person under the
control of the defendant) has been, or could be, prosecuted for an offence
under s 42; and
•
Neither the liability of a person or organisation under s 43, or any other right
of compensation created by the Act, nor the procedure by which a person
may seek damages under those sections, are affected by the fact that the same
or similar damages may have been sought under any other legislation
(including workers' compensation legislation), provided that the same
damages may not be sought twice.
vi
Further, that a new Part be inserted in the Act, creating:
•
A right for a current or current public officer, public contractor, or employee
of a public contractor, to seek damages in the Queensland Industrial
Relations Commission against an employing or contracting public agency, of
no limit, for any act or omission (including but not limited to wrongful
dismissal) which caused or contributed to damage or loss on the part of the
employee or contractor because they did, or might make a public interest
disclosure;
•
An obligation on public agencies to make an ex gratia payment of
compensation or other appropriate restitution to any public officer or public
contractor whom it is reasonably satisfied has suffered damage or loss
because they did, or might make a public interest disclosure, irrespective of
whether the person has availed themselves of the above right to
compensation (but with any such compensation or restitution to be counted
against any later award for compensation); and
•
A power and obligation on the oversight agency to take action on behalf of
any public officer or public contractor whom it is reasonably satisfied has
suffered damage or loss because they did, or might make a public interest
disclosure, in respect of whom no reasonable compensation or restitution
has been made, with the consent of that person.
Ongoing assessment and protection
Recommendation 12. That the statutory requirements for minimum procedures in
recommendation 10 include a requirement for ongoing assessment of the welfare of
public officers who have made a public interest disclosure.
Restoring Queensland as national leader 1. Non-whistleblower complainants and informants –
consistent, but separate justice
Recommendation 13. That the Queensland Government commission a public review
of the extent and adequacy of general protections for complainants, informants and
other witnesses under Queensland legislation, separately to its reforms to the
Whistleblower Protection Act 1994, with a view to further reforms aimed at ensuring
best practice in public complainant protection.
Further, that once amendments have been introduced into other relevant Queensland
legislation to bring it into line with best practice in public complainant protection –
including environmental protection, public health and safety, and disability services
legislation – that protections for 'any person' who makes a public interest disclosure
on these matters be transferred from the Whistleblower Protection Act 1994 to more
appropriate legislation.
Whistleblowing Legislation in Queensland: The Agenda for Reform vii
2. Private sector whistleblower protection –
taking the initiative
Recommendation 14. That the Queensland Government show leadership in the field
of private sector whistleblower protection, by initiating a joint State Government-led
project through a mechanism such as the Council for Australian Federation, seeking
the support and participation of the Commonwealth Government, to identify the key
principles and legislative strategies needed for an effective, comprehensive, national
regime for the protection of public interest whistleblowers in Australia's nongovernment sectors.
Whistleblowing Legislation in Queensland: The Agenda for Reform 1
Part I. Background 1. Introduction This report sets out recommendations for the reform of whistleblowing legislation in
Queensland, as well as review of associated legislation in Queensland and, where
relevant, nationally.
The report focuses on the reforms that are necessary to rectify proven deficiencies in
Queensland's public integrity framework, and desirable to restore Queensland to a
national leadership role on issues of integrity and accountability generally.
The report states key lessons for Queensland from the national research project,
Whistling While They Work: Enhancing the Theory and Practice of Internal Witness
Management in Public Sector Organisations (2005-2009), led by Griffith University.
The Queensland Government played a major part in initiating this research, and was
a major contributor and participant in the project.
The report is also a submission in response to the Queensland Government Green
Paper, Integrity and Accountability in Queensland (August 2009, pp.25-26). In
particular, it seeks to help answer the question (p.26):
How could the current legislative protections for whistleblowers be enhanced?
As acknowledged in the Green Paper, the Whistling While They Work project has
already published several national reports which serve as background to this
Queensland report. They include:
•
Public Interest Disclosure Legislation in Australia: Towards the Next Generation
(Brown 2006). An issues paper published by the Commonwealth, NSW and
Queensland Ombudsman, comparing whistleblowing legislation nationally.
•
Whistleblowing in the Australian Public Sector (Brown 2008). The first report of
the Whistling While They Work project, published by the Australia & New
Zealand School of Government (ANZSOG) and ANU E-Press.
•
Whistling While They Work: Towards best practice whistleblowing programs in
public sector organisations (Roberts et al 2009). The draft second report of the
project, released at the 2nd Australian Public Sector Anti-Corruption Conference,
Brisbane, July 2009.
This report draws on research results, findings and conclusions contained in the
above reports.
In general, the Whistling While They Work research has confirmed the absolute
importance of effective whistleblowing programs for integrity and accountability in
the public sectors studied. It has also confirmed both the utility and the importance
of robust, well-designed whistleblowing legislation to provide the necessary
framework to support those programs.
2
Accordingly, this report will not repeat the case for effective whistleblowing
programs and legislation, other than as necessary to justify a specific reform.
The Whistling While They Work research team commends the Queensland
Government for publishing the current green paper, and for taking a holistic
approach to the review and development of Queensland's public integrity system.
We trust this report will assist in resolving some of the most complex, and in some
cases overdue issues going to the heart of public integrity.
What is 'whistleblowing'? In this report:
•
'whistleblowing is taken to mean the 'disclosure by organisation members
(former or current) of illegal, immoral or illegitimate practices under the
control of their employers, to persons or organisations that may be able to
effect action' (Miceli & Near 1984: 689; see Brown 2008: 8-13);
•
'whistleblowing' also means 'public interest' whistleblowing – that is,
disclosures about suspected or alleged wrongdoing which affects more than
simply the personal or private interests of the person making the disclosure,
while noting that such disclosures may well also include such interests;
•
'whistleblower' means only a person who discloses wrongdoing by or within
an organisation of which they are a member, or with which they have a
privileged or special relationship such as to mean their disclosure comes
'from within' (e.g. former employees, contractors, employees of contractors,
volunteers); and
•
other persons who disclose suspected or alleged wrongdoing, who are not
members of the organisation about which they are disclosing, are defined as
other 'complainants', 'informants' or 'witnesses'.
These definitions have significant implications for unscrambling some of the current
deficient aspects of Queensland's whistleblower protection regimes, and restoring
Queensland to a position of leadership in integrity system best practice.
2. The research As discussed in the Green Paper, the Whistling While They Work project has been a
four-year collaborative research project funded by the Australian Research Council
and 14 partners, including three Queensland Government agencies: the Crime and
Misconduct Commission, Queensland Ombudsman and Public Service Commission.
Together these agencies contributed $141,027 to the project on behalf of the
taxpayers of Queensland, in addition to substantial in-kind contributions and
participation, within an overall national project budget of $1.01 million. The project
is believed to be the most comprehensive empirical study of whistleblowing, and the
largest per capita, conducted to date worldwide.
Table 1 summarises the survey-based research conducted as part of the project.
Whistleblowing Legislation in Queensland: The Agenda for Reform 3 Table 1. Quantitative research, Whistling While They Work project (see Brown 2008: 16)
Short title
Full title
No. of
items
Cth
No. of participating agencies
a
NSW
Qld
WA
Total
1. Agency Survey
Survey of Agency Practices and
Procedures (2005)
42
73
85
83
63
304
2. Procedures Assessment
Assessment of Comprehensiveness
of Agency Procedures (2006-07)
24
56
60
31
28
175
3. Employee Survey
Workplace Experiences and
Relationships Questionnaire
(2006-07)
50
27
34
32
25
118
Surveys distributed
5,545
8,324
6,343
2,965
--
Responses
2,307
2,561
1,729
1,007
--
(25)
(31)
(29)
(17)
(102)
(Procedures Assessment &
Employee Survey)
Total
surveys
Total
responses
23,177
7,663 b
4. Internal Witness Survey b
Internal Witness Questionnaire
(2006-07)
82
4
4
4
3
15
455
240
5. Casehandler Survey c
Managing the Internal Reporting of
Wrongdoing Questionnaire (2007)
77
4
5
4
3
16
1,651
315
6. Manager Survey c
Managing the Internal Reporting of
Wrongdoing Questionnaire (2007)
77
4
5
4
3
16
3,034
513
7. Integrity Agency Survey
Survey of Integrity Agency
Practices and Procedures (2007)
45
5
5
3
3
16
8. Integrity Casehandler Survey
Managing Disclosures by Public
Employees Questionnaire (2007)
75
3
3
3
3
12
304
82
a
Throughout this report, Cth figures include a range of both APS (Australian Public Service) and non-APS agencies unless otherwise indicated.
includes 59 responses for which jurisdiction/agency unknown.
c
indicates written questionnaire response to be followed up by qualitative interview in willing cases (case study agencies)
b
4
Among the total of 304 Commonwealth, NSW, Queensland and Western Australian
agencies, a total of 83 Queensland Government agencies participated in the research.
This includes the 32 Queensland agencies (and over 1,700 individual public servants)
who participated in the major Workplace Experiences and Relationships
Questionnaire; and the four Queensland organisations who participated in the
national group of 16 agencies, as 'case study' agencies for closer evaluation of their
whistleblowing systems and procedures.
Further details of the research, and the features of the participating agencies, are set
out in the first and second reports (Brown 2008: 4-21; Roberts et al 2008: 14-20).
3. Whistleblowers Protection Act 1994 (Qld) in context History Historically, Queensland was the first Australian jurisdiction to provide legislative
protection to whistleblowers, in the wake of the Fitzgerald Inquiry (Whistleblowers
(Interim Protection) and Miscellaneous Amendments Act 1990 (Qld)).
Subsequently, following a public inquiry by the Queensland Electoral and
Administrative Review Commission (EARC 1991), the Queensland Parliament
enacted the Whistleblowers Protection Act 1994 (Qld).
Today, all Australian State and Territory jurisdictions possess public sector
whistleblowing legislation of some kind (Brown 2006). The exception has been the
Commonwealth Government, although recommendations for federal legislation as
well as Private Members Bills have been in existence since 1994 (see Senate 1994).
At the Commonwealth level, the Rudd Government has now committed to 'provide
best-practice legislation to encourage and protect public interest disclosure' (ALP
2007), and is preparing its response to a House of Representatives Standing
Committee report on how to do so (House of Representatives 2009).
In Queensland, the EARC Report remains an authoritative guide to many of the
major issues of legislative design involved in such legislation today. The resulting
legislation was, and remains, the most detailed special-purpose whistleblowing
legislation in Australia, and one of the most detailed such Acts in the world.
However, the fact that Queensland's legislation is detailed, including best practice
provisions in some key respects, does not mean that its legislative approach ever
reflected best practice in all key respects.
Moreover, national and international comparisons, combined with the empirical
evidence gathered by the Whistling While They Work project, indicate that:
•
The Whistleblowers Protection Act 1994 (Qld) has now been surpassed
nationally and internationally in relation to several of the most important
features of statutory whistleblowing regimes;
•
Implementation of the Act has fallen short of original objectives; and
•
New questions have arisen about how whistleblower protection should fit
within the wider public and private sector integrity systems.
Whistleblowing Legislation in Queensland: The Agenda for Reform 5 Table 2. Main legal effects of whistleblowing legislation compared
No.
Type of legal effect
1.
Obligations on organisations/employers, and others, to
receive and act upon public interest disclosures by
organisation members
2.
3.
Obligations on organisations/employers to provide and
maintain a safe and non-discriminatory working
environment for organisation members who make public
interest disclosures, including support and protection
Defences against liability for disciplinary, criminal or
civil actions that might be taken against an organisation
member as a result of their disclosure (e.g. breach of
instruction or confidence, disclosure of secrets,
defamation)
4.
Criminalisation of reprisals against persons as a result of
a disclosure by an organisation member
5.
Rights of compensation for organisation members who
suffer damage or loss to themselves or their career for
making a disclosure
Whistleblowers
Protection Act
1994 (Qld)
How Queensland Act compares with
other Australian
legislation
US federal
legislation
Weaker than some (within
strong overall integrity
framework)
Slightly stronger
(but US amendments
likely to strengthen)
Slightly stronger
(but UK provides
stronger incentives)
s 44
Weaker than several
Stronger
(but US amendments
likely to strengthen)
Slightly stronger
(but UK provides
stronger incentives)
s 39
Weaker than NSW and
proposed Cth (disclosures
to media not protected)
Weaker
(disclosures to media
protected in US
Weaker
(disclosures to media
protected in UK)
Slightly weaker than most
(only reprisals by public
officials are prosecutable)
Slightly weaker
(only reprisals by
public officials are
prosecutable)
Stronger
(no criminal offence
of reprisal in UK)
Slightly stronger in one
respect (IRC); similar/
weaker in others
Similar
(but US amendments
likely to strengthen)
Weaker
ss 29, 30
s 42
s 43
UK legislation
6
As shown in Table 2 above, contemporary whistleblowing legislation uses five basic
types of legal obligation and/or remedy to encourage and protect public interest
whistleblowing, as an element of modern integrity systems.
The research showed that the approaches used in Queensland for achieving these
effects, and the framework in which they are embedded, have not led to best practice
outcomes. Despite the historical importance, relative sophistication and profile of
Queensland's legislation, the state recorded:
•
Lower overall confidence in relevant legislation among public employees,
than in the other three jurisdictions studied;
•
Lower overall trust among public employees, as to how they would expect
the management of their agency to respond to an employee report of
wrongdoing, than in the other three jurisdictions studied;
•
Lower average outcomes in terms of the perceptions of whistleblowers as to
how they were treated by the management of their agencies, than in NSW or
Western Australia (but the same outcome as for Commonwealth employees,
who have no comprehensive whistleblowing legislation); and
•
Lower average comprehensiveness in agency whistleblowing procedures,
than in the other three jurisdictions studied (Roberts 2008: 240, 249).
These results will be further referred to in Part II.
Table 2 also shows how the Whistleblowers Protection Act 1994 (Qld) currently
compares with legislative best practice in other Australian jurisdictions, the United
States and United Kingdom, on each of these key features. More detailed
comparison will be referred to in Parts II and III (see also Brown 2006). However it
is useful at the outset, to note the broad ways in which Queensland and other
Australian approaches currently differ from the main international approaches.
The United States approach As in Australia, whistleblower protection in the USA commenced as a public
integrity measure beginning, federally, with the Civil Service Reform Act 1978 (US),
followed by the Whistleblower Protection Act 1989 (US). There are many equivalent
State statutes.
The federal US approach provided legal protections to, and made it illegal to
undertake reprisals against, public sector whistleblowers who disclose 'a violation of
any law, rule, or regulation' or 'gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety'. 1
The protections apply for any such disclosure made 'to the Special Counsel or to the
Inspector General of an agency or another employee designated by the head of the
agency to receive such disclosures of information' (i.e. disclosures to an integrity
agency and internal disclosures). 2
1
Whistleblower Protection Act 1989 (Title 5 US Code), Sec. 1213(a).
2
Whistleblower Protection Act 1989 (Title 5 US Code), Sec. 1213(a). Subsection 2.
Whistleblowing Legislation in Queensland: The Agenda for Reform 7
The protections also apply to any other such disclosure – for example, disclosures to
the media – where 'not specifically prohibited by law and if such information is not
specifically required by Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs'. 3
Queensland's legislation differed consciously from the U.S. approach by:
•
Providing more detailed systems to encourage internal disclosures and
disclosures to integrity agencies, thereby
•
Removing the need for legal protections to extend to external, public or
media disclosures, because if government's internal processes worked, this
should not be needed.
US whistleblowing legislation has itself been subject to many calls for reform. At
time of writing, two Whistleblower Protection Enhancement Bills are in the U.S.
Congress and are expected to be consolidated, passed and signed into law by
President Barak Obama. Once consolidated, these Bills will:
•
Catch up with Australian approaches by providing more detailed systems to
encourage internal disclosures and disclosures to integrity agencies;
•
Catch up with United Kingdom approaches by providing more effective
avenues for compensating mistreated whistleblowers (see below); and
•
Strengthen the protection for whistleblowers who go public, by removing the
preclusion against public disclosures by 'national security' employees.
The United Kingdom approach Four years after the Queensland Act, Britain enacted whistleblowing legislation
which differed from the US or Australian approaches in key aspects. The British
approach has since been followed in a range of countries including South Africa and
Japan. The main differences were:
•
To create a scheme applying equally to the public sector and the private
sector, through national employment law – i.e. the Public Interest Disclosure
Act 1998 (UK) embedded whistleblower protection in the Employment Rights
Act 1996 (UK) rather than creating stand-alone legislation; and
•
To focus almost solely on driving better organisational responses and
protection of employees, by providing effective avenues for compensating
mistreated whistleblowers (through the national Employment Appeals
Tribunal system, the equivalent of Fair Work Australia).
The UK approach differed from US and Australian approaches, in creating no
criminal offence of reprisal against a whistleblower.
The UK approach nevertheless followed the US approach in still extending
protection to most whistleblowers who go public – leaving Australian jurisdictions
such as Queensland as the only ones where, in the main, this cannot occur.
3
Whistleblower Protection Act 1989 (Title 5 US Code), Sec. 1213(a). Subsection 1.
8
In summary In short, Queensland legislation never matched some of the original US provisions,
while surpassing others. The UK then leapfrogged both Australia and the US in key
respects, while matching the US in others. The US is now looking to catch up with
best practice where found in Australia or the UK, while further strengthening those
provisions on which it was always strong.
The overall result is that Queensland (and other Australian jurisdictions) has now
either been left behind, or stands to be left behind in key respects, by comparison
with US and/or UK approaches. The empirical research results confirm this.
Fortunately, Queensland is in a strong position to rectify known deficiencies, regain
its position as both a national and world leader in the quality of its whistleblower
protection regime, and take a new leadership role in the resolution of the 'next
generation' of challenges in the field of whistleblower protection.
Part II of this report accordingly sets out specific recommendations to bring the
Whistleblowers Protection Act 1994 (Qld) into line with current and foreseeable best
practice, as informed by the research.
'Best practice' in this context is defined as legislation which meets, to a high level,
the 13 principles proposed in chapter 11 of the first project report: 'Best Practice
Whistleblowing Legislation for the Public Sector: The Key Principles' (Brown et al
2008). These principles were developed jointly by: the author, Associate Professor
Paul Latimer (Monash University), Professor John McMillan (Commonwealth
Ombudsman) and Mr Chris Wheeler (Deputy NSW Ombudsman), in consultation
with other project team members and partners.
Professor McMillan also served as an engaged consultant to EARC in its original
inquiry into whistleblowing legislation in Queensland (see EARC 1991: 8).
Part III of this report sets out further recommendations for the contribution that
Queensland can make to resolving the relationship between the State's primary public
sector whistleblowing legislation, and:
•
protection of other complainants, informants and witnesses; and
•
protection of whistleblowers in the private and civil society sectors, not just
in Queensland but nationally.
Whistleblowing Legislation in Queensland: The Agenda for Reform 9
Part II. Reform of Whistleblowers Protection Act 1994 (Qld) Each key principle of legislative best practice as stated below [boxed] is taken from
'Best Practice Whistleblowing Legislation for the Public Sector: The Key Principles'
(Brown et al 2008).
1. Objectives and title The stated objectives of public interest disclosure legislation should be:
• to support public interest whistleblowing by facilitating disclosure of
wrongdoing
• to ensure that public interest disclosures are properly assessed, and where
necessary investigated and actioned
• to ensure that a person making a public interest disclosure is protected against
detriment and reprisal.
These objectives should be captured in the short and long title to the legislation.
Public Interest Disclosure Act is a preferred title to ‘Whistleblower Protection Act’
or ‘Protected Disclosures Act’.
No major reform
needed
Reform
needed
Reform
imperative
Currently, the principal purpose of the Act (s 3) focuses on the protection of persons
who make public interest disclosures under the Act, as if this is all the Act intends to
achieve and indeed, as if this is an end in itself. This is somewhat misrepresentative.
Better legislative practice is to incorporate the vital protection objective of the Act in
a statement which also recognises the overall purpose of whistleblowing itself
(public sector integrity and the identification and rectification of wrongdoing), and
also makes explicit the Parliament's intention that disclosures will be appropriately
acted upon, under this Act if not under other legislation.
It is noted that EARC's original proposals included a better statement of legislative
objectives than the one enacted (EARC 1991: A5). Current best legislative practice
in Australia is provided by s 3 of the Protected Disclosures Act 1995 (NSW).
Recommendation 1. That s 3 of the Act be amended to state its legislative
objectives in terms similar to s 3 of the Protected Disclosures Act 1995 (NSW)
10
The title of the Queensland Act ('whistleblower protection') followed United States
precedent almost by default, even though the approach taken was different to that
taken in the United States, and EARC (1991: 14) had determined it was 'preferable
not to provide in legislation' a definition of the term whistleblower.
The research showed a positive relationship between levels of knowledge of, and
confidence in, relevant legislation within public sector agencies, and organisational
attitudes towards whistleblowing (and in some cases, whistleblowing behaviour)
(Roberts 2008: 236-245). These results indicate the communicative importance of
both the existence of the legislation, and how it is titled and presented.
The case study research collected anecdotal evidence confirming that the legislation's
current title works against its reputation and implementation in three ways:
•
While public officials who make public interest disclosures are indeed
'whistleblowers', most do not self-identify, nor wish to self-identify as such.
This is for a range of positive reasons, including impressions (right or wrong)
that to be labeled a whistleblower is to be singled out for retribution. One
participant described the term as having 'extremely negative connotations':
… the term alone will surely negate much of the work done to change the
culture [of organisations]. It would hardly encourage me to come forward
(despite support and assistance being available), if I knew that despite this I
was still going to be labelled a ‘whistle blower’. … Not to put too fine a
point on it but it’s a bit like why parents don’t name their babies ‘Adolph’
anymore (see Brown 2006: 6).
This is believed to be a major reason for under-reporting by agencies of the
number of public interest disclosures they deal with, as well as the continued
unwillingness of many risk-averse employees from coming forward with
information about wrongdoing (see Brown et al 2008: 265).
•
At the same time, for those public officials who do seek to self-identify as a
'whistleblower', the title of the Act fails to communicate that the legislation
extends to a particular range of reported wrongdoing ('public interest
disclosures') and not any or all wrongdoing types in respect of which public
officials may seek protection (e.g. individual grievances); and
•
The title 'whistleblower protection' can give the false impression that anyone
self-identifying as a whistleblower is automatically protected against all
possible adverse outcomes that might befall them, when this is correctly not
the case – contributing to both poor respect for and implementation of the Act
among managers, and criticism by persons whose expectations are not met.
A preferable title is Public Interest Disclosure Act, given that this is what the Act
actually deals with and focuses upon, and it is a title which circumvents the above
problems. This title is in use in the ACT, Tasmania, Western Australia, the Northern
Territory and the United Kingdom, and is proposed for the Commonwealth.
Recommendation 2. That the Act be retitled the Public Interest Disclosure Act.
Whistleblowing Legislation in Queensland: The Agenda for Reform 11
2. Subject matter of disclosure Legislation should specify the topics, or types of proscribed wrongdoing, about
which a public interest disclosure can be made. The topics should cover all
significant wrongdoing or inaction within government that is contrary to the public
interest. The topics should include:


an alleged crime or breach of the law
official corruption, including abuse of power, breach of trust, and conflict of
interest
official misconduct, and
defective administration, including:
negligence or incompetence
improper financial management that constitutes a significant waste of
public money or time, and
any failure to perform a duty that could result in injury to the public, such
as an unacceptable risk to public health, public safety or the environment.


No major reform
needed
Reform
needed
Reform
imperative
Under ss 15-19, the Act is triggered by any disclosure by a public official of
suspected:
•
•
•
•
•
official misconduct, as defined by the Crime & Misconduct Act 2001;
maladministration that adversely affects anybody’s interests in a substantial
and specific way;
negligent or improper management directly or indirectly resulting, or likely to
result, in a substantial waste of public funds (provided not based on a mere
disagreement over policy that may properly be adopted about amounts,
purposes and priorities of expenditure);
a substantial and specific danger to public health or safety or to the
environment; or
a substantial and specific danger to the health or safety of a person with a
disability.
This range of wrongdoing types is comprehensive and, in legislative terms, currently
represents national and international best practice.
12
3. Person making disclosure A disclosure should qualify as a ‘public interest disclosure’ if either of two tests is
satisfied:
(a)
the person making the disclosure holds an honest and reasonable belief that
the disclosure shows proscribed wrongdoing (the subjective test); or
(b)
the disclosure does show, or tends to show, proscribed wrongdoing,
irrespective of the person’s belief (the objective test).
The motivation or intention of the person making the disclosure should not be
relevant. Nor should a person be required to use a special form or declare that it is a
public interest disclosure.
No major reform
needed
Reform
needed
Reform
imperative
Range of persons who may make a public interest disclosure To properly serve the integrity and accountability of the public sector, whistleblower
protections should be available to all categories of government 'insider' (or former
insiders). The entire reason for creating tailored regimes to ensure proper handling
and management of disclosures by such persons, is that their internal position in the
public sector may:
(a) give them access to privileged information regarding wrongdoing, which
should be disclosed; but also
(b) place them in a position of particular vulnerability to reprisals or
repercussions, especially relating to their career, employment and basic
livelihood, the fear of which also acts as a special barrier to disclosure.
The research has confirmed that public sector whistleblowing protections should be
available to current or former:
• Public officials, including permanent and contract staff;
• Public contractors (in respect of their contracts or the public agency with
which they contract);
• Employees of public contractors (in respect of the delivery of publicly-funded
services by their employer, or the public agency with which their employer
contracts);
• Volunteers who are de facto unpaid officials or employees; and
• Anonymous persons who can reasonably be suspected to belong, or who are
later identified as belonging, to one of these categories.
The Queensland Act provides current best practice in its definition of ‘public
officer’, which includes anyone employed in or by State government, including
legislators, judicial officers, and officers of government-owned corporations.
Section 27(1) of the Act also already provides that a public interest disclosure may
be made to an appropriate entity 'in any way, including anonymously'.
Whistleblowing Legislation in Queensland: The Agenda for Reform 13
However the Act has fallen behind best practice in relation to other categories of
public sector whistleblower. This may be because EARC (1991) originally
recommended that disclosures by any person (including non-whistleblowers) should
trigger the Act, as will be discussed in Part III. Fortunately, this approach was not
proceeded with, but in the process, other categories of whistleblower were not
captured in respect of the full range of wrongdoing reportable under the Act.
An example of better practice can be found in Tasmania, where s 6(2) of the Public
Interest Disclosure Act 2002 (Tas) provides that 'a contractor' may disclose improper
conduct by 'a public body with which the contractor has entered into a contract', with
'contractor' defined to mean 'a person who at any time has entered into a contract
with a public body for the supply of goods or services to, or on behalf of, the public
body'. The Tasmanian Act also provides that a contractor may make a disclosure
after they cease 'to hold or be a party to a contract with the public body' (s.25(2)).
At a Commonwealth level, the House of Representatives Standing Committee (2009:
55) has also recommended that new legislation include a 'deeming' provision by
which persons who are insiders to government and at equivalent risk of reprisal may
be deemed to be 'public officials' for the purposes of the Act.
Recommendation 3. That Part 3 of the Act be amended to provide that a public
interest disclosure on any matter may be made by:
• a public contractor (in respect of their contracts or the public agency with
which they contract), an employee of a public contractor (in respect of the
delivery of publicly-funded services by the contractor, or the public agency
with which their employer contracts), or a volunteer who is de facto an
unpaid public official or employee of a public contractor; or
• a public officer, public contractor, employee of a public contractor, or
public volunteer who has ceased to work in that capacity or hold that
contract.
Further, that if the Commonwealth proceeds with a 'deeming' provision for who
may make a public interest disclosure, consideration be given to including such a
provision in the Queensland Act.
Tests for disclosure Section 14(2) of the Act provides that a public interest disclosure will trigger the Act
if the person making it 'honestly believes on reasonable grounds that the person has
information that tends to show the conduct or danger'.
This provision has been shown to provide an appropriate test for when the Act's
requirements should apply. It is superior to a purely objective test, under which the
information disclosed must actually show or tend to show a proscribed form of
wrongdoing (required in NSW, South Australia and Western Australia: see Brown
2006: 22).
However, the best possible approach would be for the legislation to provide that the
Act is triggered either when a whistleblower honestly believes on reasonable grounds
that the information tends to show wrongdoing, or when a whistleblower provides
information which tends to show wrongdoing, even if they have no belief as to that
fact or as to what type of wrongdoing might be shown.
14
This approach would guard against the possibility of protection failing (e.g. in an
action for defamation, or in defense of an action for compensation) because it was
shown that the whistleblower did not hold the required level of understanding about
the information that they were supplying, at the time they supplied it, for it to be a
public interest disclosure.
Recommendation 4. That s 14(2) of the Act be amended to provide that a
disclosure will trigger the Act, either (a) if the person making it honestly believes
on reasonable grounds that the information tends to show the conduct or danger,
or (b) if the information does tend to show relevant conduct or danger, irrespective
of what the person believed it to show at the time they made the disclosure.
4. Receipt of disclosure Legislation should allow a public interest disclosure to be made to a variety of
different people or agencies, including:

the immediate or any higher supervisor of the person making the disclosure

the chief executive officer of the agency

any designated unit or person in an agency

any dedicated hotline, including external hotlines contracted by an agency, or

any external agency with jurisdiction over the matter (eg, ombudsman,
corruption commission, auditor-general, or public sector standards
commissioner).
No major reform
needed
Reform
needed
Reform
imperative
Sections 26(1) and 27(3) of the Act provide current best legislative practice in the
range of avenues by which a public interest disclosure may be made, to appropriate
entities within government. These were last extended in 2006, when the Queensland
Parliament legislated to allow public interest disclosures to be made to Members of
the Legislative Assembly, in response to the Bundaberg Hospital Commission of
Inquiry (Davies 2005).
Most importantly, the avenues include the requirement that the responsibility to
recognise and receive disclosures needs to be embedded in the duties of all public
sector managers (see Brown 2008: 293ff). At the same time, it is explicit that other
internal and external disclosure avenues are also available.
The issue of when a public interest disclosure should also be able to be made outside
internal or external government channels, for example to the media, is dealt with
below under principle 10.
Whistleblowing Legislation in Queensland: The Agenda for Reform 15
5. Recording and reporting All public interest disclosures to an organisation should be formally recorded,
noting the time of receipt, general subject matter, and how the disclosure was
handled. Recording systems, including required levels of detail, will vary
according to agencies’ circumstances, but should be consistent with minimum
standards across the public sector (see principle 7).
No major reform
needed
Reform
needed
Reform
imperative
Sections 29 and 30 of the Act require all public agencies to keep records of public
interest disclosures received, and action taken, with basic information on numbers
and outcomes of investigations to be published in their annual report.
However, the research revealed that most agencies currently lack sufficiently
comprehensive systems for recording and tracking employee reports of wrongdoing
– especially at junior and middle management levels, where the bulk of disclosures
are made in the first instance (Brown 2008: 304).
Some agencies still have no such systems, despite these being a basic prerequisite to
effective monitoring of how many public interest disclosures are being made, what
investigation or other action is being taken, and how those involved in the
disclosures are being managed, at an agency and a whole-of-government level. In
particular, they are vital to the early identification of the risks of reprisals, conflicts
or other detrimental outcomes, at a stage when such outcomes might still be able to
be averted or minimized.
The frequent lack of effective agency-level systems for implementing the legislation,
calls for clearer and more detailed requirements to be placed in agency-level
procedures, and for these to be supported and enforced by more active central
oversight and coordination. These are dealt with below under principles 7 and 11.
6. Acting on a disclosure An agency receiving a disclosure should be obliged:

to assess that disclosure and take prompt and appropriate action, which may
include investigating the disclosure or referring it to an external agency

to the extent practicable and reasonable, to keep the person who made the
disclosure informed of action proposed to be taken, the progress of any action,
and the outcomes of any action, and

to include in its annual report a summary of the numbers of public interest
disclosures received, and the action taken.
No major reform
needed
Reform
needed
Reform
imperative
16
While the third of these requirements is met by the current Queensland Act, the first
two are not.
Sub-section 30(2) of the Act requires agencies to report on how many disclosures
were verified each year, which tends to presume some investigation. However the
Act otherwise imposes no clear guidance or responsibilities on agencies as to how
they should deal with disclosures, nor whether or how they must keep the parties to
the investigation (including the whistleblower) informed.
The research demonstrated the absolute importance of public employees' confidence
that a disclosure will be acted upon, to their decision to blow the whistle (Brown
2008: 53-82). Originally, EARC (1991: 125-133) also sensibly proposed basic duties
to investigate, but these were omitted from the legislation.
Section 32 of the Act requires agencies to provide reasonable information to a person
who makes a public interest disclosure, about the response to and outcomes of the
disclosure – but only when asked.
The research demonstrated that this is not a sufficient approach (Brown 2008: 109136). The whistleblowers in most need of information about what is occurring, may
not be those most likely to ask; and whistleblowers may not necessarily know when
to ask, until after they begin experiencing problems. An active strategy for managing
the expectations, fears and risks that surround a whistleblower, including a proactive
approach to keeping them reasonably informed of progress and outcomes, is
instrumental to the prevention and containment of a range of real and/or perceived
difficulties in whistleblowing outcomes.
There is no single model of legislative best practice for duties relating to
investigations (Brown 2006: 28-32). Legislation in other Australian jurisdictions
varies between imposing scant duties, on the assumption that investigation will occur
under other Acts, to detailed provisions which are sometimes imperfect and conflict
with other Acts.
Taking this experience together, in light of the research, new legislative best practice
would be to provide:
• A general requirement that all public interest disclosures must be assessed and,
where appropriate, investigated;
• Appropriate discretions for when an agency may assess that a public interest
disclosure does not require investigation, namely when:
- The substance of the disclosure has already been investigated or dealt with
by another appropriate process;
- The substance of the disclosure should be dealt with by another process;
- The disclosure is old, or age renders it incapable of investigation;
- The disclosure is otherwise incapable of investigation;
- The disclosure is manifestly too trivial to warrant investigation; or
- An external integrity agency with jurisdiction over the matter agrees, or
determines, that investigation is not warranted in all the circumstances.
•
A procedure for automatic internal and/or external review of agency-level
assessments that a public interest disclosure does not require investigation;
Whistleblowing Legislation in Queensland: The Agenda for Reform •
•
17
General requirements that a person who makes a disclosure (if known) must be
given reasonable information about the action proposed to be taken in
response, the progress of the action, and the results of the action; and may also
make reasonable requests for this information; and
A proviso that in the event of inconsistency between these requirements, and
more detailed requirements relating to the investigation of the matter under
other legislation, then to the extent of the inconsistency, the requirements in
the other legislation will apply.
Recommendation 5. That a new Part 5 be inserted in the Act (also replacing the
current ss 30-32) providing minimum duties and standards for the assessment and
investigation of disclosures under the Act, for the provision of information about
action taken to persons who make disclosures, and for public and parliamentary
reporting on the Act's operation.
7. Oversight agency One of the external agencies with responsibility for public interest disclosures
should be designated as the oversight agency for the administration of the
legislation. The responsibilities of the oversight agency should include:

being notified by agencies of all disclosures, and recording those disclosures
and how they were dealt with and resolved

having the option to decide, upon being notified of a disclosure, to provide
advice or direction to an agency on how the disclosure should be handled, to
manage the investigation of the disclosure by the agency, or to take over the
investigation of the disclosure

providing advice or direction to agencies on the steps that should be taken to
protect people who have made disclosures, or to provide remedial action for a
person who has suffered detriment as a result of making a disclosure

promoting the objects of the legislation, both within government and publicly,
and conducting training and public education

publishing model procedures for the administration of the legislation, with
which agencies’ internal procedures must be consistent; and

conducting a public review at least once every five years of the operation of the
legislation.
No major reform
needed
Reform
needed
Reform
imperative
As noted in the Green Paper (p.25), the Act created a scheme which sought to make
'each public sector agency responsible for receiving public interest disclosures about
the conduct of its officers, managing the disclosure process and taking steps to
protect its officers from reprisals.' The alternative, as seen at the time, was a
18
centralized system with one agency responsible for protecting whistleblowers in
Queensland (see EARC 1991: 122-125, 149-154, 184-188).
This was a false dichotomy. In hindsight, it would always have been more logical to
pursue a more effective path between these two extremes.
While rejecting the idea that one agency should act as the point of receipt, referral
and coordination for all disclosures (EARC 1991: 122-125), EARC did recommend
that implementation of the Act should be ensured by having the Criminal Justice
Commission (CJC, now CMC) act as a general oversight agency. This was proposed
to be achieved by:
•
Requiring all agencies to develop relatively detailed procedures for the
handling of public interest disclosures, including employee protection;
•
Empowering the CJC to receive, refer and where necessary, investigate any
type of public interest disclosure (not limited to official misconduct);
•
Empowering the CJC to oversight the existence and quality of agency
whistleblowing procedures, including the power to give standing or specific
directions to agencies regarding modification of their procedures;
•
Requiring the CJC to establish a whistleblowers counseling unit to provide
'counselling and assistance' to whistleblowers and potential whistleblowers
regarding the operation of the Act (EARC 1991: A11-12, A16-17).
However, not even these minimal requirements for coordination and standard-setting
were incorporated in the Act.
The CJC did establish a small whistleblowing support unit, without statutory
authority or roles, which was wound up by 1999. One apparent reason was the unit's
inability to find out about, let alone intervene in, whistleblowing cases being handled
by agencies at the stages when intervention might have been more productive.
Instead, apart from the requirement for agencies to annually report upon disclosures
received under the Act (above), the only provisions for ensuring the implementation
of the legislative scheme were:
• The requirement under s 44 that every agency 'must establish reasonable
procedures to protect its officers from reprisals that are, or may be, taken
against them by the entity or other officers of the entity'; and
• The requirement under s 31 that the responsible Minister (the Premier) 'must
prepare for each financial year an annual report to the Legislative Assembly
on the administration of this Act'.
These requirements can now be seen, in light of the research, to have substantially
failed. In addition to the research outcomes noted in Part I, the frequent absence, and
comparatively low quality of basic whistleblowing procedures and systems in many
Queensland Government agencies is further discussed under principle 11.
Over the 15 years of the Act's operation, rarely, if ever, has the Premier or the
Queensland Department of Premier and Cabinet compiled and published any
comprehensive annual report on the administration of the Act, whether as a stand
alone report or as part of the annual reporting obligations of the Department or its
agencies. In 2006, the Office of the Public Service Commissioner conducted an
internal-to-government review of the Act, examining three years of data on its
Whistleblowing Legislation in Queensland: The Agenda for Reform 19
performance, but declining to recommend significant reform (OPSC 2006). The
Whistling While They Work project team was not consulted by that review.
The question is what now should be done to put in place an effective framework for
oversighting the implementation of the Act.
An existing outcome of the research is the recommendation that all jurisdictions put
in place a dedicated oversight agency or unit for the coordination of responses to
employee-reported wrongdoing. The recommended statutory roles of the oversight
agency – which may be an existing agency – are set out under principle 7 above, and
further discussed in the first report (Brown et al 2008: 269-271; 310-311).
The House of Representatives Standing Committee (2009: 126-8, 132-7) has already
accepted this recommendation in respect of Commonwealth legislation,
recommending that these roles be conferred on the Commonwealth Ombudsman.
In Victoria, these roles are fulfilled under statutory mandate by Ombudsman
Victoria. In Western Australia, they are fulfilled by the Office of the Public Sector
Standards Commissioner. In the Northern Territory, they are fulfilled by a new
Commissioner for Public Interest Disclosures, located in the office of the
Information Commissioner.
In Queensland, in light of proven inadequacies in implementation of the Act by
Queensland Health as well as other general difficulties in its operation, the
Bundaberg Hospital Commission of Inquiry recommended that:
…. the Queensland Ombudsman be given an oversight role with respect to all public
interest disclosures save those involving official misconduct. I recommend a system
similar to that involving Official Misconduct where all public interest disclosures must
be referred to the Ombudsman who may then either investigate the disclosure itself, or
refer it back to the relevant department for investigation, subject to monitoring by the
Ombudsman (Davies 2005: 472, Rec 6.510).
This recommendation was supported by the Queensland Ombudsman and the Crime
& Misconduct Commission. However, the Queensland Government declined to
implement this recommendation, based on advice from the Queensland Health
System Review (the Forster Review) and Office of the Public Service Commissioner
(OPSC 2006: 12-21).
In my respectful opinion, the advice of the OPSC – on which the Whistling While
They Work project team was not consulted at the time, and with which the
Ombudsman continued to disagree – was neither internally consistent nor persuasive.
It was also prepared in consciousness that the results of the Whistling While They
Work project were not yet available (OPSC 2006: 2). The Queensland Government
should consider that advice to have now been superseded.
The choice of which agency should undertake these roles is one for Government.
The main considerations are that the roles include:
• Routine supervision of and assistance to agencies in respect of their policies,
practices and procedures;
• An ability to oversight the numbers and quality of investigations being
conducted by agencies (in close coordination with any other agencies
oversighting the same or similar investigations, including the CMC if the
oversight agency is not the CMC);
20
•
•
•
An ability to take over or conduct investigations where necessary, or refer
investigations to more appropriate bodies;
An ability to develop specialist expertise in reprisal risk assessment,
workplace strategies for preventing poor whistleblowing outcomes, and the
investigation and remediation of reprisals or poor outcomes; and
An ability to coordinate the operations of the oversight agency/unit with the
many agencies involved in implementation of aspects of the Act.
No agency should be tasked with these functions without legislative authority, and
appropriate financial resources. However the research strongly suggests that no
government can reasonably expect to achieve substantial improvement in the
implementation of the Act unless it tasks an appropriate agency with these functions.
Recommendation 6. That a new Part be inserted in the Act (also replacing the
current s 31) establishing a new framework for oversight and coordination of the
implementation of the Act, including a designated agency or unit with a
clearinghouse and quality assurance role for individual investigations, and
responsibility to promote, support and require best practice agency whistleblowing
programs.
8. Confidentiality Disclosures should be received and investigated in private, so as to safeguard the
identity of a person making a disclosure to the maximum extent possible within the
agency’s control. Avenues should be available for disclosures to be made
confidentially, and where practical, individual disclosures should be dealt with in
ways that do not disclose the identity of the person making the disclosure, and
preferably even that a disclosure has in fact been made. This principle is subject to
the need to disclose a person’s identity to other parties – for example, where this is
absolutely necessary to facilitate the effective investigation of a disclosure, provide
procedural fairness, protect a person who has made a disclosure, or make a public
report on how a disclosure was dealt with.
No major reform
needed
Reform
needed
Reform
imperative
Section 55 of the Act requires confidentiality to be maintained in the administration
of the Act, with appropriate qualified exceptions to deal with the need for
investigations and for the provision of natural justice.
However, best practice requires that the Act also provide flexibility in the constraints
that absolute confidentiality requires, in circumstances where it is necessary to reveal
information or even identify a person who made a public interest disclosure – with
their informed consent – in order to better protect and support them.
Whistleblowing Legislation in Queensland: The Agenda for Reform 21
The importance of this flexibility was significantly reinforced by the research
findings, that it is frequently not possible to maintain confidentiality in respect of a
public interest disclosure in practice – turning a strong statutory requirement into an
inflexible hindrance to the effective management of a whistleblowing situation, in
many situations (see Brown 2008: 149; Roberts et al 2009: 73-76).
Unlike the legislation in force in NSW, Western Australia and the Northern Territory
(Brown 2006: 47-48), the Queensland Act does not contain a provision which
enables the identity of a person to be revealed with their consent or in other
circumstances where there is a reasonable excuse why confidentiality should not be
maintained. Queensland Government agencies have reported these limitations as
representing operational barriers to the implementation of the Act.
Recommendation 7. That sub-section 55(3) of the Act be amended to provide that
a person may make a record of confidential information or disclose it to someone
else, for purposes including the protection of any person under the Act, including a
person who has made a public interest disclosure – provided that information
which identifies or could tend to identify a person who has made a public interest
disclosure may only be disclosed with the prior, informed consent of that person,
or, if consent is impossible to obtain, where the interests of that person are not
harmed and there is reasonable excuse to do so.
9. Protection of person making disclosure A person who has made a disclosure to which the legislation applies should be
protected against criminal or civil liability, or other detriment, for making the
disclosure. For example, the person:

should not be liable to prosecution for breach of a statutory secrecy provision

should not incur civil liability for, for example, defamation or breach of
confidence

should not be subject to discipline or other workplace sanction, such as
reduction in salary or position, or termination of employment, and

should be entitled to legal redress if they suffer detriment as a result of making
the disclosure.
No major reform
needed
Reform
needed
Reform
imperative
Sections 39-43 of the Act extend comprehensive legal protections to public sector
whistleblowers under the Act, in line with its basic objectives.
Several features of these provisions continue to represent best legislative practice.
However they are currently defective in two respects relating to the availability of
legal redress if a whistleblower suffers detriment as a result of a disclosure.
22
The first defect relates to the legal and procedural barriers that stand in the way of
any person effectively pursuing an entitlement to damages for detriment caused,
under s 43. These issues are addressed below under principle 12.
The second defect is that only a public officer may be prosecuted for the criminal
offence of taking a reprisal against a person because, or in the belief that, anybody
has made, or may make, a public interest disclosure (s 42). While the Act and the
Criminal Code contemplate that a public officer may still be prosecuted even if
others who are not public officers are also involved, the offence is not prosecutable
against persons who are not public officers, acting alone.
The research suggests that much over-reliance has been placed on the usefulness of
the criminal offence of reprisal, as a means of achieving legal redress for the
detriment suffered by most whistleblowers, given that the nature of that detriment is
only rarely such that would make a prosecution appropriate (Brown 2008: 127-131).
Nevertheless, as long as such an offence is retained for its symbolic and deterrent
effects, it should be comprehensive and practical. The original proposal of EARC
(1991: A19) was that any person who takes a reprisal should be criminally liable.
The reasons for departing from this position remain unclear. No other comparable
legislation in Australia contains this limitation (see Brown 2006: 37).
Recommendation 8. That sub-s 42(1) of the Act be amended to provide that 'any
person' – not just 'a public officer' – who takes a reprisal commits an offence.
10. Disclosure outside an agency A disclosure made to a person or body that is not designated by the legislation to
receive disclosures (e.g., the media) should be protected in exceptional
circumstances as defined in the legislation. The protection should only apply if it is
reasonable in all the circumstances for the disclosure to be made to some other
person or body to ensure that it is effectively investigated. As a general guide, the
protection should apply where a person has first made the disclosure to a designated
person or body and there has been a failure by that person or body to take
reasonable and timely action.
No major reform
needed
Reform
needed
Reform
imperative
The question of whether the Act's protections extend to public sector whistleblowing
to the media as a last resort, or in other exceptional circumstances, is a fundamental
test of the credibility of the legislation, and of any government's full commitment to
public integrity and accountability.
The rationale for ensuring that protections remain available for reasonably-made
disclosures to the media has been stated elsewhere (see Brown 2006: 42-43; Brown
2007; Brown et al 2008: 278-282).
Whistleblowing Legislation in Queensland: The Agenda for Reform 23
There are two main reasons why this is imperative. The first is that it has been
needed in the past, and it is inevitable that at some stage, it will be needed again. For
example, the Fitzgerald Inquiry itself was initiated due to media exposure of endemic
and systemic official corruption. This exposure was triggered, in large part, by
disclosures to the media by officials with no other viable avenue of disclosure.
EARC (1991: 138-140) proposed that disclosures to the media attract protection
where the disclosure concerned a serious, specific and immediate danger to public
health or safety. While it may seem remarkable that EARC's recommendations did
not extend to protection of the type of disclosures that gave rise to the Fitzgerald
Inquiry, it must be remembered that EARC also recommended that the Act protect
disclosures by 'any person', including a much wider range of complainants than
simply public sector whistleblowers (see Part III). Its reasoning makes clear that
were the Act to be limited to public sector whistleblowers – as largely occurred –
then a less restrictive approach was justified.
However, the Queensland Government declined to proceed even on the limited
EARC recommendation, on the basis that new internal and regulatory disclosure
avenues were sufficient. It is a bold government that assesses its own integrity
systems to be so robust, that the need to protect public whistleblowers could not arise
again. Yet, unsurprisingly, it did.
In 2005, the Bundaberg Hospital Commission of Inquiry again recommended in
favour of the extension of protection to public whistleblowing, as a last resort
(Davies 2005: 472, Rec 6.512). The Queensland Opposition even moved
unsuccessfully to implement this recommendation (Whistleblowers Protection
Amendment Bill 2006). But the Queensland Government again declined to accept
either the specific proposal or the principle behind the recommendation.
The arguments against the reform as summarised by the then OPSC (2006: 18) were
that 'untested allegations' aired in the media could 'unjustly bring the person against
whom the allegations are made into disrepute', 'prejudice the conduct of the
investigation' and 'unnecessarily disrupt the workplace'.
The misconceived nature of these objections is addressed below. It is noteworthy,
however, that:
•
Other public inquiries to examine this issue has also concluded in favour of
protection of whistleblowing to the media at least as a last resort (e.g. Gibbs
1991; Senate Select Committee 1994);
•
The recent audit of government secrecy laws by Irene Moss AO, conducted
for the Australia’s Right To Know, concluded that public interest disclosure
legislation 'should at least protect whistleblowers who disclose to the media
after a reasonable attempt to have the matter dealt with internally or where
such a course was impractical' (Moss 2007: 73);
•
At a Commonwealth level, the Rudd Labor Government was elected with a
commitment to extend legal protection in these areas:
In situations where there may be compelling reason requiring disclosure [to third
parties such as journalists], a court will be able to weigh up all the relevant factors and
balance the public interest in disclosure against any breach of confidentiality which
may have occurred.
24
In these cases, there will be two key tests to determine when public interest disclosure
will attract legal protection. Firstly, where the whistleblower has gone through the
available official channels, but has not had success within a reasonable timeframe and,
secondly, where the whistleblower is clearly vindicated by their disclosure (ALP 2007).
Further, the recent House of Representatives Standing Committee report (2009: 1624) confirmed that protections should extend to public official's disclosures to the
media in at least limited circumstances, given that 'experience has shown that internal
processes can sometimes fail' and that 'in some cases… the disclosure framework
within the public sector may not adequately handle an issue and that a subsequent
disclosure to the media could serve the public interest'. Indeed the Committee
concluded that some protection of disclosures to the media is needed as 'an important
check on procedure' and a 'safety valve' for the system – and that:
A public interest disclosure scheme that does not provide a means for such matters to
be brought to light will lack credibility (House of Representatives 2009: 162).
The second reason why reform in this area is imperative, is because it works.
The protection of public disclosures was always recognised as fundamental to the
effectiveness of United States provisions, due to the experience of the Watergate
scandal in the period of the Nixon administration, among others. It is also now
recognised as fundamental in the United Kingdom – formerly the home of official
secrets – where the tribunal may grant protection in respect of a public interest
disclosure to the media, if satisfied that the disclosure:
•
•
•
is reasonable in all the circumstances, and
is not made for personal gain, and
meets one of four preconditions: that
(a) the whistleblower reasonably believed he or she would be victimised; or
(b) there was no prescribed regulator and he or she reasonably believed the
evidence was likely to be concealed or destroyed; or
(c) the concern had already been raised with the employer or a prescribed
regulator; or
(d) the concern was of an exceptionally serious nature. 4
The fact that the United Kingdom provisions extend to public whistleblowing has
been credited as creating a primary incentive for British agencies to implement
measures to better manage whistleblowing as an internal process – specifically to
reduce the need for disclosures to go public (i.e. avoiding the 'front page' test).
The same is widely regarded as one reason why the only Australian jurisdiction to
provide some protection for public sector disclosures to the media – New South
Wales – may have secured better research results than other jurisdictions with more
sophisticated integrity systems. The NSW provisions (Protection Disclosures Act
1994 (NSW), s 19) were in fact based broadly on a proposal by Professor Paul Finn,
rejected in Queensland but adopted in NSW (see EARC 1991: 139).
4
Employment Rights Act 1996 (UK), ss 43G and 43H, as inserted by Public Interest Disclosure Act
1998 (UK); see explanatory guide by Public Concern At Work, www.pcaw.co.uk.
Whistleblowing Legislation in Queensland: The Agenda for Reform 25
While the relevant NSW provisions are far from best practice (see Brown 2006: 4344; Brown 2007), it is noteworthy that NSW government agencies currently have, on
average, the most comprehensive procedures for managing whistleblowing, and
average outcomes that are at least as good as any other jurisdiction (Roberts 2008).
There may be several explanations for the relative quality of NSW procedures and
outcomes. However it appears that one is the risk that a whistleblower can
legitimately repeat their disclosure to the media – a motivating factor for agencies to
avoid this by dealing with internal disclosures more effectively.
A further benefit of recognising public whistleblowing is that it stands to relieve
public confusion over the differences between whistleblowing and ‘leaking’ or other
forms of unauthorised disclosure (such as selling state secrets), by providing clear
rules to differentiate between these different forms of disclosure.
An easily overlooked feature of this level of protection, is the stage at, and purposes
for which the protection is incurred. The research showed that only in rare
circumstances do public sector whistleblowers make a disclosure to the media. By
the time they do, their career is usually already suffering. The extension of
protection will not change these realities. What it will do is enable:
•
a whistleblower who is being prosecuted or disciplined for unauthorised
release of information, to at least be able to argue a public interest defence;
•
a whistleblower who is being sued for defamation or breach of confidence, to
at least be able to argue a public interest defence; or
•
a whistleblower who suffers detriment as a result of their reasonably-made
disclosure, to still at least seek compensation from their employer or such
other person as may have caused or allowed the detriment to occur.
None of these protections are automatic. In all circumstances, the relevant court or
tribunal will still need to be satisfied that the public disclosure was reasonable.
It is time for Queensland to re-establish itself at the forefront of Australian public
integrity and accountability systems, by catching up with international best practice,
and adopting a comprehensive approach to the protection of reasonably-made
disclosures, of whatever type, to third parties such as the media.
Recommendation 9. That a new section be inserted in the current Part 5 of the
Act, to the effect that ss 39-43 of the Act will also apply to a public interest
disclosure made to a third party, including a journalist, where the matter:
• has already been disclosed internally to the agency concerned and to an
external integrity agency of government, or to an external integrity agency
alone, and not been acted on in a reasonable time having regard to the
nature of the matter; or
• is exceptionally serious, and special circumstances exist such as to make
prior disclosure, internally or to an external integrity agency, impossible or
unreasonable (for example, in some circumstances involving serious and
immediate threat to public health or safety).
26
11. Agency responsibility to ensure protection The responsibilities of an agency under the legislation should include:

establishing proper internal procedures in the agency for receiving, recording
and investigating disclosures, for protecting persons who make disclosures, and
for safeguarding the privacy of those who make disclosures

ensuring that staff of the agency are made aware of their responsibilities under
the legislation, including the responsibility to support and protect any person
making a disclosure

upon receipt of a disclosure, assessing whether the person who made the
disclosure – or any other person – faces any risk of detriment or requires special
protection as a result

where necessary, taking all reasonable measures to protect a person who has
made a disclosure against direct or indirect detriment, actual or foreseeable, and

taking remedial action in the event that a person suffers detriment as a result of
making a disclosure.
It should be the duty of the senior executives of an agency to ensure that these
responsibilities are met by the agency.
No major reform
needed
Reform
needed
Reform
imperative
As noted earlier, s 44 of the Act requires that every agency 'must establish reasonable
procedures to protect its officers from reprisals that are, or may be, taken against
them by the entity or other officers of the entity'.
Apart from public reporting requirements, this is the sole means by which the current
legislative regime attempts to ensure that the Act is implemented by agencies. This
provision fell far short of the original recommendations of EARC (1991: A11-12) for
more detailed statutory guidance on agency procedures, as well as their oversight.
The Queensland provision now falls far short of best practice elsewhere in Australia.
In Victoria, Western Australia and the Northern Territory, the legislation requires
agencies to develop detailed procedures dealing with (a) the facilitation of
disclosures, (b) the investigation of disclosures, and (c) the protection and support of
those who make disclosures, which must be consistent with a model code or
procedures developed, and monitored, by a central oversight agency (see Brown
2006: 46-47).
The same approach has now been recommended for the Commonwealth (House of
Representatives 2009).
The research provides a comprehensive analysis of the relative presence,
comprehensiveness and quality of agency whistleblowing policies and procedures
(Brown 2008: 206-232; Roberts 2008). The national picture is sobering. Of 175
agencies whose procedures were assessed nationally, only five were rated as
Whistleblowing Legislation in Queensland: The Agenda for Reform 27
satisfying all the requirements set out in the current Australian Standard for
Whistleblower Protection Programs for Entities (AS 8004-2003).
However, a conspicuous research result was that, on average, even where they
existed, the whistleblowing procedures of Queensland Government agencies were
the least comprehensive of the four jurisdictions studied (Roberts 2008: 249).
The second report of the Whistling While They Work project, drawing on the
experience and performance of the 16 case study agencies, has now presented a new
blueprint for the issues that need to be addressed in the design of the whistleblowing
programs of all organisations (Roberts et al 2009). This report is also informing the
revision of the current Australian Standard.
The principles stated above reflected work-in-progress involved in that analysis, and
have been confirmed by the second report.
It is vital that these basic procedures be embedded in the management frameworks of
all agencies – as originally intended by the Act, but frequently not achieved. In
particular, as recommended in the second report, it is important that whistleblower
support be taken as a central part of the responsibility of public sector employers to
provide and maintain a safe and healthy workplace for all employees, rather than
treated as a rare issue to which organisations only react defensively in a crisis.
Recommendation 10. That s 44 of the Act be replaced with a new, more detailed
section providing that:
•
it is the responsibility of the CEO and management of each agency to
ensure that appropriate action is taken on all public interest disclosures,
and that appropriate support and protection is provided to employees; and
•
each agency must develop and implement a whistleblowing program which
addresses all the requirements in principle 11, the Australian Standard, and
the guidelines or model code developed by the oversight agency.
28
12. Remedial action Where detriment is suffered by a person as a result of a disclosure having been
made, remedial action of the following kind should be taken by the agency, or
failing that the oversight agency, to the extent necessary to prevent or remedy the
detriment:

stopping the detrimental action and preventing its recurrence, including by way
of injunction

placing the person in the situation they would have been in but for the
detrimental action, including if necessary the transfer of the person (with their
informed consent) to another equivalent position

an apology

compensation (pecuniary and/or non-pecuniary) for the detriment suffered, if
the detriment could have been prevented, avoided or minimised, and

disciplinary or criminal action against any person responsible for the detriment.
Jurisdiction to deal with compensation applications should be conferred upon a lowcost tribunal with expertise in determining the rights and responsibilities of employers
and employees. Consideration should also be given to reducing or reversing the onus
of proof in cases of detrimental action, so that where a public interest disclosure has
been made and detriment is suffered, it falls to those allegedly responsible to explain
why the detriment did not result from the making of the disclosure.
No major reform
needed
Reform
needed
Reform
imperative
Sections 43-54 of the Act provide the major legal remedies available for limiting and
remediating any detrimental effects upon a whistleblower for having made a public
interest disclosure.
Of these provisions, the most important is a person's entitlement under s 43 to sue for
damages in the District or Supreme Court, for a breach by any person of their duty
under s 41 not to 'cause, or attempt or conspire to cause, detriment to another person
because, or in the belief that, anybody has made, or may make, a public interest
disclosure'.
EARC intended this provision to operate generously to compensate mistreated
whistleblowers for damage to their lives and careers as a result of their reasonable
actions in blowing the whistle. This included recognition that under normal
employment law – such as in an action for wrongful dismissal – 'the amount of
damages available may bear no relationship to the true extent of the damage suffered
by a whistleblower' (EARC 1991: 180-182).
Unfortunately, the means chosen to make reasonable compensation available to
whistleblowers have never worked as intended. In practice, this compensation
avenue has proved difficult to access and of marginal, if any, utility in providing
remedies for damage suffered. The same is true in other Australian jurisdictions, all
Whistleblowing Legislation in Queensland: The Agenda for Reform 29
of which (except NSW) provide a similar compensation avenue. However the failure
of the Queensland approach is particularly well demonstrated by case law.
There are three reasons why the approach has proved defective.
1) Employers not liable for compensation for individual criminal acts Sections 42 and 43 were plainly intended to create two parallel, independent avenues
of redress where detriment is caused to a whistleblower – criminal prosecution (s 42)
and/or civil damages (s 43). However, in Howard v State of Queensland (2000), the
Queensland Court of Appeal determined that a whistleblower to whom detriment is
caused by another public officer, cannot seek damages against their employing
agency, because the detriment is an offence (under s 42) and the employer could not
be held vicariously liable for that detriment (under s 43) because:
[i]llegal acts committed by an employee which are inimical to the purposes of the
employment are regarded as falling outside the course of employment and no vicarious
liability falls upon the employer for them. 5
In the Court's lead judgment, Thomas JA determined that the 'direct liability of a
public sector entity for its own acts' marked the limits of the civil law liability that
the Act envisaged on the part of a public sector entity, with the result that the tort
identified in section 43 could 'be committed only by the direct acts of a person or
corporation', with 'vicarious liability for the acts of others... excluded.'
Ironically, the Court also found this situation to have been reinforced by the fact that
section 44 of the Act cast a duty on a public sector entity to establish reasonable
procedures to protect its officers from reprisals – when an equal but opposite
interpretation would see this as indicating a duty on the part of an employing agency
to take responsibility for foreseeable action or inaction by managers or staff.
The net effect of the decision was to limit the availability of s 43 compensation to
those circumstances where the defendant is shown to have actively caused deliberate
detriment (i.e. a direct reprisal) such as required for criminal liability under s 42.
The Court's interpretation largely nullifies the availability of s 43 for the
circumstances where it is most needed – when agencies breach their duty of care to
manage whistleblowing incidents so as to prevent or minimise either direct reprisals,
or more indirect, adverse workplace outcomes (see Brown 2008: 129).
While the Queensland provision was intended to provide a more generous remedial
measure than employment law, it in fact reached the opposite result to a parallel
NSW case under general employment law. In Wheadon v State of NSW (2001), the
NSW District Court found that the NSW Police Service was liable for damages of
$664,270 for having breached its duty of care to an officer who reported suspected
corrupt conduct. The officer experienced harassment and victimisation resulting in
serious stress culminating in psychiatric illness. The breaches for which the agency
was held liable included:
• failure to give support and guidance to the officer;
5
Howard v State of Queensland, [2000] QCA 223 (9 June 2000), per Thomas JA (with whom the rest
of court agreed).
30
•
•
•
•
failure to provide the officer with a system of protection (including active
steps to prevent or stop harassment and persecution);
failure to properly investigate the officer’s allegation;
failure to properly investigate allegations against the officer; and
failing to assure the officer that he had done the right thing by reporting. 6
The NSW Police Service has since revolutionized its programs for managing
whistleblowing.
These contrasting results highlight the need for reform of the Queensland Act. There
is a vital need to decouple the right to compensation from circumstances giving rise
to criminal liability, and make explicit that compensation is payable for breaches of
care that may fall short of acts to directly 'cause' detriment, and instead include
omissions or neglect which fail to address foreseeable risks of either direct reprisals
by others or other, more general adverse workplace outcomes.
2) Confused relationship with workplace law In Reeves-Board v Qld Uni of Technology (2001), the Supreme Court of Queensland
also found that since the right to compensation under s 43 provides for 'damages for
personal injury by an employee from an employer to which the employment was a
significant contributing factor', any action for compensation must also comply with
the requirements of the WorkCover Queensland Act 1996. 7 Consequently the court
struck out those parts of the whistleblower’s claim seeking damages for personal
injury, for failing to comply with certain requirements.
Significantly, the opposite result occurred in Victoria, where, in Owens v
University of Melbourne & Anor (2008), the Supreme Court found that nothing in
the Accident Compensation Act 1985 (Vic) limited the right of a whistleblower to
seek damages from her employer under section 19 of the Whistleblowers
This was partly because in Victoria, the
Protection Act 2001 (Vic). 8
whistleblowing legislation came after the workers’ compensation legislation.
More importantly, the Victorian Court also recognised the different purposes and
nature of the legislation, and the fact that the whistleblowing legislation was aimed
at a broader conception of employers’ responsibilities to protect their employees
than the definition of 'serious injury' in the workers' compensation legislation:
Detrimental action [under the Whistleblowers Protection Act 2001] includes injury but
importantly, extends to what may be described as collateral damage to a person’s
career, profession or trade, all of which may be apt to describe aspects of loss and
damage suffered by employees as well as other classes of person. The breadth of the
compensable loss and damage under the Act defines the cause of action within an
entirely different category to claims under the Accident Compensation Act,
notwithstanding an overlap that might occur in the case of injury. ... In my opinion
6
Wheadon v State of NSW, unreported, District Court of NSW, No. 7322 of 1998 (2 February 2001)
per Cooper J; see NSW Ombudsman (2009: 57).
7
Reeves-Board v Qld Uni of Technology [2001] QSC 314 (28 August 2001), [2002] 2 Qd R 85, per
Mullins J.
8
Owens v University of Melbourne & Anor [2008] VSC 174 (27 May 2008), per Judd J.
Whistleblowing Legislation in Queensland: The Agenda for Reform 31
s 19 creates a new, novel and additional class of rights and remedies to those which
already existed ... for work related injury. ...
The purpose of the Act would be frustrated if those who suffered detrimental action in
the workplace were denied the full range of remedies available under the Act merely
because any injury they suffer arose out of or in the course of their employment. 9
The contrasting results highlight the imperative that – rather than being set up as a
compensation avenue which tries to run entirely parallel to employment law – the
right to compensation under s 43 needs to be made an explicit part of current
employment law, even if also supported by a more general right to damages in tort
for cases where the breached duty lies outside the employment relationship.
2) Cost and risk The nature of an action for tort in the general courts, under s 43, is that the plaintiff
must necessarily incur significant legal costs to bring the action in the first place,
while also facing the normal risks of costs being imposed against them should they
fail. The scope for both types of costs is increased by the ill-defined nature of the
duty or duties that are alleged to have been breached, and the uncertainty of the
evidentiary requirements needed to demonstrate any breach.
It should be little surprise that most public employees (or former employees) are
likely to walk away, even when they have very valid claims which it would be in the
public interest to litigate, rather than take a compensation avenue which is likely to
prolong or worsen their ordeal.
Importantly, Queensland is one jurisdiction to have also contemplated the use of
other, more efficient, low-cost compensation avenues – pointing the direction for
reform. As discussed elsewhere, South Australia and Western Australia have also
created an alternative right for whistleblowers to seek compensation for victimization
in their Equal Opportunity Tribunals (Brown 2006: 39-40). Anecdotally, these
avenues have not proved effective, because they are geared to mediating and
remedying discrimination against employees based on identified characteristics
(gender, race, age, disability, sexual orientation) rather than the even more complex
duties that surround the management of whistleblowing incidents, which may
potentially befall any employee.
In Queensland, s 45 of the Act provides a bridge to employment law by providing
that a public officer may also challenge disciplinary action against them, personnel
actions involving them or others, or unfair treatment, on the basis that the challenged
actions constitute a reprisal for a public interest disclosure. While these carry no
separate statutory right to compensation, they point to the reality that the primary
duties governing the management of the key outcomes lie with their employer.
Further, Queensland is the only jurisdiction to provide a direct statutory link between
whistleblower protection and workplace relations law, by providing that an employee
may challenge a dismissal as unfair where that action was taken as a result of their
9
Owens v University of Melbourne & Anor (2008) per Judd J.
32
having made a public interest disclosure under the Act (Industrial Relations Act 1998
(Qld), s. 73(2)(f)(i)).
This link, while valuable, returns the question of compensation to the very same
issues examined by EARC in 1991. Plainly the main problems – identified by EARC
at the outset – are that:
•
compensation for wrongful dismissal under normal statutory employment
remedies, is not likely to normally be sufficient, given that reinstatement is
frequently not a viable option, and that the damage done to ongoing career
prospects may be far more severe than simply normal severance or payout
entitlements; and
•
compensation is not currently available under normal statutory employment
remedies, for breaches of duty of care towards a whistleblower that fall short
of dismissal.
By contrast, the solution found in the United Kingdom (and other jurisdictions) is to
place an organisation's liability for compensation squarely within employment law,
through new measures with that effect (Gobert & Punch 2000; Calland & Dehn
2004; generally www.pcaw.co.uk). This is the primary means by which the British
approach has an effect on organisational behaviour – for the same reason that
exposure to liability contributed to dramatic organisational change on the part of the
NSW Police Service, following the Wheadon decision above.
In the United Kingdom, damages may be pursued in the Employment Appeals
Tribunal for dismissal but also actions short of dismissal; are uncapped; and are
assessed according to what is 'just and equitable in all the circumstances', having
regard to the reprisals or failures complained of, and the nature of the loss or damage
suffered by the worker (Employment Rights Act 1996 UK, s 49(2)).
Australian employment law has recently undergone major change, most recently in
the form of the Fair Work Act 2009 (Cth) and complementary State legislation.
However these reforms also create an opportunity for more efficiently recognizing
whistleblower protection rights within national employment law. For example, the
House of Representatives Standing Committee (2009: 104) recommended that the
federal public sector whistleblowing regime should be supported by express
recognition of the right to make a public interest disclosure as a workplace right
under the Fair Work Act 2009 (Cth), with appropriate remedies.
The question of the broader interface between whistleblower protection in
Queensland, and general employment law, is especially relevant to the question of
private sector whistleblower protection. This is discussed further in Part III.
At the present time, however, Queensland retains its own Industrial Relations
Commission, providing independent review of workplace relations within the
Queensland public sector, which is the primary context in which issues of
compensation arise for whistleblowers under the present Act. It thus remains within
the power of the Queensland Government to reform these provisions to deliver an
efficient, low-cost avenue for compensation of mistreated or mismanaged
whistleblowers, sufficient to meet the original objectives of the Act.
Whistleblowing Legislation in Queensland: The Agenda for Reform 33
Recommendation 11. That s 43 of the Act be amended to provide that:
•
Damages may also be sought against any person who, through act or
omission, fails to take reasonable steps to protect a person from detriment
that could reasonably be foreseen to befall them as a result of a person
having made a public interest disclosure;
•
The liability of a person or organisation under s 43 is unaffected by the fact
that any person (including the defendant, or an employee or person under
the control of the defendant) has been, or could be, prosecuted for an
offence under s 42; and
•
Neither the liability of a person or organisation under s 43, or any other
right of compensation created by the Act, nor the procedure by which a
person may seek damages under those sections, are affected by the fact that
the same or similar damages may have been sought under any other
legislation (including workers' compensation legislation), provided that the
same damages may not be sought twice.
Further, that a new Part be inserted in the Act, creating:
•
A right for a current or current public officer, public contractor, or
employee of a public contractor, to seek damages in the Queensland
Industrial Relations Commission against an employing or contracting
public agency, of no limit, for any act or omission (including but not
limited to wrongful dismissal) which caused or contributed to damage or
loss on the part of the employee or contractor because they did, or might
make a public interest disclosure;
•
An obligation on public agencies to make an ex gratia payment of
compensation or other appropriate restitution to any public officer or
public contractor whom it is reasonably satisfied has suffered damage or
loss because they did, or might make a public interest disclosure,
irrespective of whether the person has availed themselves of the above
right to compensation (but with any such compensation or restitution to be
counted against any later award for compensation); and
•
A power and obligation on the oversight agency to take action on behalf of
any public officer or public contractor whom it is reasonably satisfied has
suffered damage or loss because they did, or might make a public interest
disclosure, in respect of whom no reasonable compensation or restitution
has been made, with the consent of that person.
34
13. Ongoing assessment and protection To the extent practicable, an assessment should be undertaken into the impact upon
a person of having made a disclosure under the legislation. This assessment should
be undertaken at an appropriate time or times (e.g., at intervals of two, five or ten
years). This assessment may be conducted by the agency to which the disclosure
was made, or by the oversight agency.
No major reform
needed
Reform
needed
Reform
imperative
As already discussed, the research showed that too few public agencies are making
significant effort to put in place effective programs for facilitating and managing
public interest whistleblowing. Consequently very few have in place any ongoing
program for monitoring the welfare of whistleblowers or former whistleblowers over
the medium to long-term, to establish the success or otherwise of their programs, or
ensure that reprisals or other detriment do not occur outside the timeframe of the
whistleblowing 'incident' itself (Roberts et al 2009: 104-106).
Recommendation 12. That the statutory requirements for minimum procedures in
recommendation 10 include a requirement for ongoing assessment of the welfare
of public officers who have made a public interest disclosure.
Whistleblowing Legislation in Queensland: The Agenda for Reform 35
Part III. Restoring Queensland as national leader 1. Non­whistleblower complainants and informants – consistent, but separate justice The principles are designed to apply to any employee, contractor or other person
working in a public sector agency. The principles are not designed to apply to
disclosures or complaints made by members of the public, such as clients and
customers of an agency. Members of the public warrant comparable protection, but
where it does not already exist, separate legislation may be required for that
purpose. Equally, there are specific situations for which a tailored scheme may be
required to protect people against reprisal or detriment by reason of making a
complaint, such as patients or aged persons in a nursing home
(Brown et al 2008: 282-3).
No major reform
needed
Reform
needed
Reform
imperative
The problem As outlined above, there is an important distinction between whistleblowing
legislation – which aims to facilitate and protect public interest whistleblowing by
organisation members – and legislative protection of other persons who make
equivalent complaints or disclosures about public sector wrongdoing, or provide
information as witnesses, but from outside an employment or similar relationship
with the public sector agencies concerned.
This distinction remains important, but is frequently lost in debates over how far
'whistleblower' protections should extend. As a result, there is often confusion about
whether or not legislative protections are working, and how they should be reformed.
The Queensland Government is uniquely placed to help resolve this confusion,
through a reform initiative which would both (a) make easier the implementation of
the Whistleblower Protection Act 1994 (Qld) (as amended above), and (b) strengthen
the protection of non-whistleblower complainants or witnesses providing information
about matters of public integrity and accountability.
In Queensland, the confusion has been considerable, and has contributed to the poor
implementation of the Act. It began in 1991, when EARC (1991: 14) assessed that
'there is no compelling reason why greater protection should be available to persons
who commit crimes committed by their employer [whistleblowers] than is available
36
to any person… who reports illegal conduct of any nature.' In other words, EARC
concluded that any person should be able to claim 'whistleblower' protection under
the Act.
When implementing the EARC report, the Queensland Government fortunately
avoided this approach in large part, narrowing the field of the Act back to
whistleblowers for most types of wrongdoing (official misconduct,
maladministration, waste of public funds) (ss 15-18).
However the Queensland Government also left two categories of wrongdoing open to
a public interest disclosure by 'any person' – e.g. private sector employees and
ordinary members of the public:
•
•
'danger to the health or safety of a person with a disability', and
'danger to the environment' (s 19).
For these wrongdoing types, the Act is both a whistleblowing law, and a law which
to protect complainants or informants in general.
This confusing combination of purposes is not found in the United States or Britain,
whose regimes focus on whistleblowers and not other categories of complainants.
Nor is the confusion found in NSW or Tasmania, nor is it proposed by the
Commonwealth, whose public sector whistleblowing regimes are (or will be) focused
on disclosures by public employees, public contractors or others who are 'insiders' to
the public sector.
However, in some Australian jurisdictions (notably South Australia, the ACT,
Victoria and Western Australia), the EARC approach was followed in its entirety,
with 'any person' able to claim whistleblower protection in respect of alleged or
suspected public sector wrongdoing – even when they are not whistleblowers. This
trend has continued even in recent years. This is because governments remain under
considerable pressure to be seen to be protecting any person who discloses public
sector wrongdoing, and not just public servants.
Why is it a problem? For the purposes of whistleblower protection, the 'any person' has one clear
advantage. It ensures that not only public employees, but other whistleblowers on
the fringe of organisational membership (such as public contractors, employees of
contractors, or volunteers within 'contracted out' public services) are brought within
the scope of the Act, when otherwise they might be left out. However as discussed
in Part II, there are other solutions to this problem.
The main problems of allowing 'any person' to make a public interest disclosure
under public sector whistleblowing legislation, are twofold.
First, the wider approach ('any person') is frustrating the purpose of the legislation in
those jurisdictions who have adopted it. This is because many, if not most
complaints of significant wrongdoing against public agencies by members of the
public, for which no protections are required, also technically become public interest
disclosures under the whistleblowing legislation.
Examples include serious defective administration leading to bad local government
planning or rating decisions (every complaint by a ratepayer or local citizen becomes
Whistleblowing Legislation in Queensland: The Agenda for Reform 37
a public interest disclosure), or legitimate complaints about badly substandard food
in prisons (every complaint by a prison inmate becomes a public interest disclosure).
States that have taken an 'any person' approach, have been forced to try to regain
control over matters needing to be treated as public interest disclosures, by (a)
erecting other legislative limits to the matters caught by the Act (Victoria), (b)
erecting administrative barriers to the making of public interest disclosures (Western
Australia), or (c) not implementing the legislation at all (South Australia).
All of these responses can and sometimes do defeat the purpose of the legislation,
even as it applies to public sector whistleblowers.
Second, many of the protections which are central to facilitating and protecting
whistleblowing, are only rarely needed, or even appropriate, for the protection of
non-whistleblower complainants or witnesses. This is explained in Table 3. This
table repeats the five major ways in which whistleblowing legislation works, shown
earlier in Table 2, but highlighting their reduced relevance to non-whistleblowing
disclosures.
Table 3. Why 'whistleblowing' protection should stay focused on whistleblowers
No.
1.
2.
3.
4.
5.
Type of legal effect
Obligations on organisations/
employers, and others, to receive and
act upon disclosure
Obligations on
organisations/employers to provide
and maintain a safe and nondiscriminatory working environment
for persons who make disclosures,
including support and protection
Defences against liability for
disciplinary, criminal or civil actions
that might be taken against a person as
a result of their disclosure (e.g. breach
of confidence, disclosure of secrets,
defamation)
Criminalisation of reprisals against
persons as a result of a disclosure
Rights of compensation for persons
who suffer damage or loss to
themselves or their career for making a
disclosure
General relevance for encouraging and
protecting…
whistleblowers
(organisation
members)
other
complainants
(clients, public)
High
(all complainants have
a right to action on
complaints)
Medium
Low
High
(only relevant for
non-whistleblowercomplainants at high
risk e.g. in residential
or custodial care)
Low
High
(sufficient defences
usually provided by
other legal processes,
e.g. court evidence,
parl privilege)
Medium
High
High
(no complainant should
suffer reprisal)
Low
(should be available
but is rarely required)
38
Table 2 provides a reminder as to why whistleblower protection is special. Other
complainants may well deserve enhanced and consistent statutory protection, but
they are not 'whistleblowers' in the sense of organisation members who both:
(a) possess privileged information about wrongdoing in that organisation by
virtue of their membership of the organisation, and
(b) require statutory encouragement and protection to reveal that information
when they otherwise would not, because they are subject to duties of loyalty
and other barriers to reporting including higher risks of reprisal.
The effectiveness of whistleblowing legislation relies on it being appropriately
tailored to the relationships between the intended or actual whistleblower, and the
organisation about which the whistle is being blown. As shown by Table 2:
• Some of the special legal protections warranted to encourage and protect
whistleblowers (e.g. immunity from defamation) are neither necessary nor
warranted for many types of customer or public complaint; and
• The main operational protections for whistleblowers (e.g. an organisation's
duty to support and protect its own employee who reports wrongdoing) are
neither necessary, warranted, or even possible for most categories of nonwhistleblower complainant.
Are there other legal protections for non­whistleblower complainants The solution to ongoing pressure for government to afford 'whistleblower'-style
protections to any deserving citizen, is a new initiative to ensure that those
protections which are needed by non-whistleblowing complainants or witnesses are
appropriately provided for in the legislation which governs their complaint.
At present, much Queensland legislation relating to public integrity and
accountability already contains relevant protections – separately to the
whistleblowing protection legislation. Some examples are provided in Appendix 1.
These protections run alongside standard common law protections for parties and
witnesses to litigation, protected by the law of contempt of court, and by the criminal
offence of perverting the court of justice. However more specialized protections are
also provided, as shown, for:
•
Complainants and others who assist investigations by integrity bodies such as
the Ombudsman and Crime & Misconduct Commission; and
•
Complainants and others who assist with the integrity of regulation and
service delivery in specific fields of activity, such as child protection.
These provisions also function as additional or complementary protections for public
sector whistleblowers. However they are designed for all categories of complainant
or witness, including general members of the public.
What these protections make clear, is that public sector whistleblowing legislation is
not the only legislation in which persons can, and do, receive the benefit of
comparable protections to whistleblowers. These include offences for reprisals
against complainants and witnesses; indemnity against prosecution or other liability
for disclosing information; and in some instances, protections against adverse
reactions by their own employers (including private employers).
Whistleblowing Legislation in Queensland: The Agenda for Reform 39
In other words, these protections can also span the divide between the public sector
and the private sector, in specific areas of policy or regulation. Primary examples are
child care service providers (public or private), and other child welfare, education
and health professionals, many of whom are located in the private sector but are
subject to State government regulation. In some circumstances these persons may be
whistleblowers; in other circumstances they are not.
The same types of protection are also available under separate legislation in other
states. In New South Wales, for example:
•
Section 50 of the Independent Commission Against Corruption Act 1988 (NSW),
provides that the Commissioner may 'make such arrangements as are necessary'
to protect the safety of any person, or to protect any person 'from intimidation or
harassment', as a result of any person assisting the Commission – whether by
giving evidence, supplying documents, or any other assistance. Contravention
without reasonable excuse of an order given by the Commissioner to any public
authority or official relating to protection of such a person, is an offence
punishable by up to 5 years imprisonment; and
•
Section 37 of the Ombudsman Act 1974 (NSW) makes it an offence for:
- Anyone to 'wilfully obstruct, hinder or resist' investigations under the Act;
- Anyone to use, cause, inflict or procure 'any violence, punishment, damage,
loss or disadvantage to any person' for or on account of their making a
complaint to the Ombudsman, assisting the Ombudsman, or giving evidence
to the Ombudsman (punishable by up to 5 years imprisonment);
- An employer to dismiss 'any employee from his or her employment', or
prejudice 'any employee in his or her employment, for or on account of the
employee assisting the Ombudsman' (punishable by up to 5 years
imprisonment), with the onus lying 'on the employer to prove that any
employee shown to have been dismissed or prejudiced in his or her
employment was so dismissed or prejudiced for some reason other than' their
having complained, assisted or given evidence to the Ombudsman.
A strong advantage of these separate, tailored protections is that it is always clear
who would have interest in and responsibility for taking action to enforce these
protections -- i.e. the investigating agency concerned. This is preferable to relying
on the police or other authorities who are removed from the issue, as has been a
problem under more 'general' whistleblowing legislation, especially where there is no
designated oversight agency.
So what needs to be done? The review of Queensland's public integrity and accountability framework, and
reform of the Whistleblower Protection Act 1994 (Qld), provides a much needed
opportunity to resolve ongoing confusion as to whether or not all categories of nonwhistleblower complainant or witness are appropriately protected.
This confusion should not be resolved by adding further categories of nonwhistleblower ('any person') to the reach of the Whistleblower Protection Act 1994.
This will only extend the confusion and make the public sector whistleblowing
regime even harder to administer.
40
However, these protections have grown up in an ad hoc manner over time. There are
legitimate questions as to whether complainant protections in other legislation are
adequate, consistent with best practice in other jurisdictions, consistent with each
other within Queensland, and consistent with whistleblowing protections, where this
is desirable.
There is also a legitimate question as to whether or how some of these protections
extend into the regulation of workplaces and employment relationships within the
private sector. In other words, where they verge on becoming whistleblower
protections, this is often less aimed at protecting public sector whistleblowers, than at
protecting private sector whistleblowers. This issue is addressed below.
Recommendation 13. That the Queensland Government commission a public
review of the extent and adequacy of general protections for complainants,
informants and other witnesses under Queensland legislation, separately to its
reforms to the Whistleblower Protection Act 1994, with a view to further reforms
aimed at ensuring best practice in public complainant protection.
Further, that once amendments have been introduced into other relevant
Queensland legislation to bring it into line with best practice in public complainant
protection – including environmental protection, public health and safety, and
disability services legislation – that protections for 'any person' who makes a
public interest disclosure on these matters be transferred from the Whistleblower
Protection Act 1994 to more appropriate legislation.
2. Private sector whistleblower protection – taking the initiative These thirteen principles outline the essential features of effective public interest
disclosure legislation. The principles are framed to apply to public sector agencies,
because of the research focus of the Whistling While They Work project. The
principles can nevertheless apply, with some modification, to the private sector and
to non-government agencies. The unifying theme of the principles – that a person has
a right to protection if they complain or disclose information about unacceptable
activity occurring in an organisation – imposes like obligations on all organisations
in society (Brown et al 2008: 282).
No major reform
needed
Reform
needed
Reform
imperative
The problem For the reasons introduced in the previous section, public interest whistleblowing is
not an issue confined to the public sector in Queensland, or nationally. For many
years, it has been clear that a more general framework for the protection of public
interest whistleblowers in the private sector is also needed (see e.g. Senate 1994).
Whistleblowing Legislation in Queensland: The Agenda for Reform 41
The pressure for protection of private sector whistleblowers has been another reason
why some Governments have attempted to take a broad approach to public sector
whistleblowing legislation, by allowing 'any person' to make a public interest
disclosure – even though protection can be illusory as this does not necessarily assist
private sector workers to make disclosures concerning their own employers.
This is another important issue for Queensland, because the Whistleblowers
Protection Act 1994 is also one of the few legislative efforts to extend 'general'
whistleblower protection to private sector wrongdoing. However, this is only in
limited circumstances, and with limited protections, and even then is not limited to
private sector 'whistleblowers' but rather any complainant (as discussed above):
• any person who discloses 'danger to the health or safety of a person with a
disability' or 'danger to the environment' can do so irrespective of who is
responsible for those dangers, i.e. including in relation to private sector
companies (s 19);
• any public officer who discloses any 'danger to public health or safety' can do
so irrespective of who is responsible for those dangers, i.e. including in
relation to private sector companies gain irrespective of who is responsible
for that danger (s 18); but
• non-public officers cannot seek protection for disclosing any other types of
wrongdoing (even if clearly illegal);
• and, as discussed earlier, the criminal offence of reprisal can only be
prosecuted against public officers (not, for example, an employer, co-worker
or other associate who undertakes a reprisal against a private sector
whistleblower, unless a public officer is also involved).
There are also, therefore, good reasons why the Queensland Government should play
a leadership role in unscrambling and improving the extent to which whistleblower
protection principles also apply in the private and civil society sectors.
Do other jurisdictions regulate private sector whistleblowing? The challenge for Queensland to resolve its own approach, is that regulation of
wrongdoing in the private sector spans all State and Territory boundaries, and
involves all levels of government, including the Commonwealth Government.
Only one Australian jurisdiction has attempted to enact whistleblowing legislation
which applies generally across the entire private sector. In South Australia, the
Whistleblowers Protection Act 1993 extends protection to any person (s 5) who
discloses wrongdoing (principally, 'illegal activity') by any 'adult person' or 'body
corporate', in addition to any government agency (s 3). In other words, the
legislation is largely sector-blind.
However the South Australian legislation (apart from no significant effort having
ever been made to implement it) operates at such a general level, as to provide only
limited coverage and protections:
•
While any person may be protected, this is effectively only for disclosing
'illegal activity' in the private sector (and not, for example, breaches of public
health or safety or actions falling short of illegality);
42
•
Protection extends only to civil and criminal immunity and compensation for
damage (not, for example, a criminal offence of reprisal); and
•
Protections are not tailored to employment or 'whistleblowing' relationships,
but rather function to protect any disclosure by any person against any other
person (i.e. as general complainant protection legislation).
These provisions are therefore regarded as having limited, if any, effect on private
sector whistleblowing behaviour or outcomes in South Australia.
In both Queensland and South Australia, these provisions can be regarded as having
never been well targeted, and as covering too wide a scope of complaints, grievances
and causes of action to easily support action to encourage and protect whistleblowers
(i.e. insiders). Despite extending to the private sector, in neither state does the
legislation impose any specific obligations on private sector entities to respond to
disclosures, protect or support whistleblowers, or avoid, prevent or remedy reprisals.
Accordingly, the South Australian and Queensland approaches do not provide
models, in themselves, for extending private sector whistleblower protection. Some
of the tailored complainant protection provisions discussed in the previous section,
where they include employment protections, provide far more effective protections
for private sector whistleblowers in those fields.
At the same time, however, the Commonwealth Government has gradually been
moving into the field of private sector whistleblower protection, in select areas.
These measures take in businesses operating in Queensland, but do not necessarily
follow consistent or best practice principles – including best practice where it does
exist in State legislation.
To date, the Commonwealth trend has followed a similar pattern to the United States,
although only partially and slowly. The main developments have been through:
•
The insertion of whistleblowing protections in national regulatory regimes or
legislation governing industries which receive substantial Commonwealth
Government funds or contracts; and
•
National corporate accountability reforms (the 2004 CLERP 9 reforms),
following the corporate transparency and disclosure reforms introduced in the
United States under the Sarbanes-Oxley Act, following the major collapses of
Enron and Worldcom.
An example of the former were the 2007 amendments to the Aged Care Act 1997
(Cth) (see Senate 2007). This occurred as part of the overhauled regime governing
the accountability of companies and organisations receiving Commonwealth funds
for aged care assistance, especially residential care ('approved providers'). Under s
63.1AA of the Act, approved providers must notify police or the Department of all
alleged or suspected 'reportable assaults' against persons in Commonwealth-funded
residential care (unlawful sexual contact, unreasonable use of force, or assault
constituting an offence against a law of the Commonwealth or a State or Territory).
More importantly, approved providers must also:
•
take 'reasonable measures' to require any staff member who suspects such an
assault, to report their suspicion either internally, or to the police, or to the
Department (sub-s (5)); and
Whistleblowing Legislation in Queensland: The Agenda for Reform 43
•
ensure, 'as far as reasonably practicable', that such staff member informants
are not victimized, either by or within the approved provider or by others,
such as employment agencies (sub-s (6); and
•
protect the staff member informant's identity (sub-s (7)).
Section 96.8 of the Act also provides that:
•
a staff member who reports a reportable assault:
- is statutorily protected from any action for (a) any civil or criminal
liability for making the disclosure, (b) breach of contract on the basis of
the disclosure, (c) defamation, or (d) termination of their contract of
employment; and
- has a right in court to seek reinstatement or compensation in the event of
a termination of their contract of employment for having made a
disclosure; and that
•
no person must be allowed to cause or threaten detriment to anyone as the
result of a disclosure of a reportable assault, punishable via administrative or
financial sanctions against the approved provider.
The CLERP 9 Corporations Law reforms imposed general whistleblowing provisions
on all Australian companies, with respect to suspected breaches of Australian
corporations law, under Part 9.4AAA of the Corporations Act 2001 (Cth).
Part 9.4AAA therefore provides the most extensive private sector whistleblowing
regime in Australia – on paper – as it applies to all companies formed under or
subject to Australian corporations law:
•
Section 1317AA(1)(a) provides for protection of any officer or employee of a
company, any person with a contract for the supply of services or goods to a
company, or any employee of a person with such a contract (a wide field of
potential whistleblowers);
•
Section 1317AA(1)(b) extends protection to any relevant disclosure made to
the Australian Security and Investments Commission (ASIC), an internal or
external auditor, a director, secretary or senior manager of the company, or a
person authorised by the company to receive disclosures (a wide range of
disclosure avenues, but not the media, even as a last resort); and
•
Section 1317AB protects the whistleblower by providing:
- statutory protection from any action for (a) any civil or criminal liability
for making the disclosure, (b) breach of contract on the basis of the
disclosure, (c) defamation, or (d) termination of employment;
- a right in court to seek reinstatement in the event of a termination of their
contract of employment for having made a disclosure;
- a criminal offence of victimisation ('causing detriment' or 'threatening to
cause detriment' to a person as a result of the disclosure), punishable by
fine or up to 6 months imprisonment (s 1317AC), with an associated right
to compensation for damage (s 1317AD); and
- a criminal offence for breaching confidentiality in respect of the
disclosure such as would identify the whistleblower (s 1317AD).
44
However, it is worth noting that protection only applies where:
• the disclosure is made 'in good faith' (s 1317AA(1)(d)); and
• the discloser informs the person to whom the disclosure is made of the
discloser's name before making the disclosure (i.e., no anonymous or initially
anonymous disclosures) (s 1317AA(1)(c)).
Almost identical provisions are also contained in ss 337A-337D of the Fair Work
(Registered Organisations) Act 2009 (Cth), providing protection to:
•
•
•
•
an officer, employee or member of a registered organisation (a union or an
employers' association)
who discloses a contravention of the Fair Work Act 2009 (Cth) or the Fair
Work (Registered Organisations) Act 2009 (Cth)
by their own organisation, or an officer or employee of their own organisation
(i.e. their own union or employers' association)
to Fair Work Australia, the Fair Work Ombudsman, or the Australian
Building and Construction Commissioner or Inspectors.
Where is private sector whistleblowing going? The answer is: no-one knows. As in some States, Commonwealth whistleblower
protection is only extending into the private sector in an ad hoc, unplanned way.
Public expectations regarding transparency, integrity, workplace justice and the right
to complain about wrongdoing – especially in closely regulated industries and areas
of publicly-funded services – are likely to increase this pressure for ad hoc extension.
This is especially the case since all governments are engaged in the search for
effective ways to enhance the accountability of private sector entities, given trends
towards 'contracting out' of public services, closer regulation in fields of public
importance, and the need for integrity in the distribution of public funds throughout
the economy (e.g. through grants and stimulus programs).
It is noted that the most recent charges to be laid against former Queensland
Minister, Mr Gordon Nuttall, related to the awarding of contracts for governmentfunded services.
Internationally, the permeability of the boundaries between sectors on issues of basic
public interest is increasing the case for 'whistleblowing laws to move to a full ‘no
loopholes’ approach, targeting public sector and private sector whistleblowing with
sector-blind principles and practices' (Latimer & Brown 2008: 775).
However, it is also clear that Commonwealth private sector measures to date have
not been informed by best practice principles, as known to exist at State level.
Deficiencies in Commonwealth measures include provisions that anonymous
disclosures needed not be acted upon, and limitations that protections only apply to
disclosures made 'in good faith'.
This conflicts directly with State and international approaches, which are generally
free of this qualifier, recognizing that public interest disclosures may often be subject
to 'mixed motives' – i.e. accompanied by other grievances or conflicts.
Whistleblowing Legislation in Queensland: The Agenda for Reform 45
It has long been recognised that whistleblowing 'motives rarely are unitary and may
be mixed with two parts honesty, one part ambition and one part vengeance' (McCall
1989: 15). This was amply demonstrated by the Whistling While They Work
research (Brown 2008) and is now well accepted in most areas of whistleblowing
policy (see e.g. Fox 1993: 144; EARC 1991) including two Commonwealth
parliamentary committees (Senate 1994: 170-172; House of Representatives 2009:
63, 72).
'Good faith' is subject to widely differing interpretations in practice, and often means
that a disclosure must be not just honest, but well-intentioned and free of malice.
The Commonwealth's Corporations Act scheme has been criticized on this ground
(Latimer 2006). The Australian Security and Investment Commission's own public
information regarding the provisions emphasizes this limitation:
The commentary on the exposure draft bill said of this requirement: ‘This is considered
appropriate given the need to discourage malicious or unfounded disclosures being
made to ASIC. Where a person has a malicious or secondary purpose in making a
disclosure, it is considered that the good faith requirement would not be met.’
(ASIC 2009).
This is a major disincentive to reporting, which could have been avoided had the
Commonwealth followed best practice as established in relevant State legislation.
Queensland's interests in establishing a more coherent, best practice approach to
private sector whistleblowing protection is also reinforced by developments in
federal employment law.
Under the Fair Work Act 2009 (Cth), the issues of workplace relations central to the
well-being of all whistleblowers or potential whistleblowers employed by trading or
financial corporations in Queensland, are no longer within the influence of the
Queensland Industrial Relations Commission. They are now governed by the federal
system of National Employment Standards and workplace rights, overseen by Fair
Work Australia and the Fair Work Ombudsman.
There is increasing recognition of the need for whistleblowers' rights to
compensation to be better integrated into Australian workplace relations law,
including workplace health and safety law, rather than left as an ill-defined and
expensive right to compensation for injury in the general courts (see Brown et al
2008; House of Representatives 2009: 96). As it stands, however, the former
Workplace Ombudsman has noted that the Fair Work Act is not currently structured
to provide this overarching protection:
Whilst the proposed workplace rights provisions [in the Fair Work Bill] may provide
more protection… [for] persons who make public interest disclosures than the current
[previous] provisions, they are not designed or adequate for this purpose. For example,
workplace rights arise out of workplace entitlements and complaints about an
individual's own employment. Matters of corruption, malpractice and the like may not
fall into this category if they do not relate to workplace entitlements or the
whistleblower's own employment (as quoted in House of Representatives 2009: 96).
46
So what needs to be done? Queensland needs to unscramble and improve its own approach to the protection of
private sector whistleblowers. It is one of only two States to have legislated directly
in respect of any private sector whistleblower protection, and the only one to do so in
the context of any comprehensive experience in whistleblower protection.
However, no State government can do this alone, given the need for reasonably
common standards across all State governments (in respect of State regulation).
There is continuing and justified pressure for increased 'seamlessness' in private
sector regulation by Commonwealth and State governments, including under current
strengthened Council of Australian Government (COAG) processes for the
harmonisation of State, Territory and federal laws.
It is important to note that private sector whistleblower protection cuts across many
of the regulatory fields in which harmonisation is already an issue, including
environmental protection, consumer protection, fair trading, public health and safety,
delivery of health care and other social services, and workplace health and safety.
Overwhelmingly, the Commonwealth Parliament must legislate key protections
within the national corporate, business and workplace relations systems that it now
controls.
However it has comparatively limited practical experience with
whistleblower protection, compared to the States.
While there are various ways in which an effective national approach to private
sector whistleblower protection could be pursued, the most effective would be a
cooperative, national, State-led approach. This should be supported by the
Commonwealth, and it would be necessary for the Commonwealth to be strongly
engaged, through agencies such as ASIC, Fair Work Australia, and the Australian
Competition and Consumer Commission (ACCC).
Recommendation 14. That the Queensland Government show leadership in the
field of private sector whistleblower protection, by initiating a joint State
Government-led project through a mechanism such as the Council for Australian
Federation, seeking the support and participation of the Commonwealth
Government, to identify the key principles and legislative strategies needed for an
effective, comprehensive, national regime for the protection of public interest
whistleblowers in Australia's non-government sectors.
Whistleblowing Legislation in Queensland: The Agenda for Reform 47
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Standard 8004, Standards Australia.
Australian Labor Party (ALP) (2007). Government Information: Restoring trust and
integrity, Australian Labor Party Election 2007 Policy Document, Canberra,
October 2007.
Australian Security and Investments Commission (ASIC) (2009). 'Whistleblowing:
Company Officers' Obligations', Information Sheet
<http://www.asic.gov.au/asic/asic.nsf/byheadline/Whistleblowers%3A+Com
pany+officers+obligations?> viewed September 2009.
House of Representatives Standing Committee on Legal and Constitutional Affairs.
(2009). Whistleblower protection: A comprehensive scheme for the
Commonwealth public sector. Canberra: Commonwealth of Australia.
Brown, A. J. (2006). Public Interest Disclosure Legislation in Australia: Towards
the Next Generation, Commonwealth Ombudsman, NSW Ombudsman, and
Queensland Ombudsman, Canberra.
Brown, A. J. (2007). Privacy and public interest disclosures – when is it reasonable
to protect whistleblowing to the media? Privacy Law Bulletin 4(2), 19-28.
Brown, A. J. (ed) (2008). Whistleblowing in the Australian Public Sector: Enhancing
the theory and practice of internal witness management in public sector
organisations. Canberra: ANU E Press.
Brown. A. J., Latimer P., McMillan J. & Wheeler, C. (2008). 'Towards Best Practice
Whistleblowing Legislation for the Public Sector: the Key Principles'. In
A. J. Brown (ed.), Whistleblowing in the Australian Public Sector:Enhancing
the theory and practice of internal witness management in public sector
organisations (pp. 261-288). Canberra: ANU E Press.
Calland R. and Dehn G. (eds) (2004). Whistleblowing Around the World – Law,
Culture & Practice. Public Concern At Work, London.
Davies, the Hon G. (2005). Report of Queensland Public Hospitals Commission of
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protection of whistleblowers, October 1991, Brisbane.
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Gibbs - Chairman), AGPS Canberra, December.
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University of Tasmania Law Review 23(2): 176-206.
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Latimer, P. & Brown, A. J. (2008). 'Whistleblower laws: international best practice'
31 University of New South Wales Law Journal 766.
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position, and whistle-blowing status: A discriminant analysis. Academy of
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Moss, I. (2007). Report on the Independent Audit into the State of Free Speech in
Australia, Australia’s Right to Know Committee, Sydney, 31 October 2007.
NSW Ombudsman (2009). Protected Disclosure Guidelines, 6th Edition, Sydney,
April 2009, Part E.
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the Public Service Commissioner, Queensland Government, Brisbane,
October 2006
<http://www.psc.qld.gov.au/library/document/catalogue/equity-ethicsgrievance/review-whistleblowers-protection-act-report.pdf>
Roberts, P. (2008). 'Evaluating Agency Responses: Comprehensiveness and Impact
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Whistleblowing Legislation in Queensland: The Agenda for Reform 49 Appendix 1 – Select Queensland complainant and witness protections (all complainants) Legislation
Section
OMBUDSMAN ACT 2001
38
Contempt of ombudsman
(1) A person is in contempt of the ombudsman if, in an investigation, the person-(a) insults or threatens-(i) the ombudsman; or
(ii) a person who gives or is to give information or a document to the ombudsman; or
(iii) a lawyer or other person helping a person who gives or is to give information or a document to the ombudsman; or
(b) deliberately interrupts the ombudsman or otherwise behaves in a disruptive way before the ombudsman; or
(c) creates or continues, or joins in creating or continuing, a disturbance in or near the place where the ombudsman is
performing a function under this Act; or
(d) obstructs or assaults a person who attends, or is to attend, before the ombudsman; or
(e) by writing or speech uses false and defamatory words about the ombudsman; or
(f) does anything, whether before the ombudsman or otherwise, that would be a contempt of court if the ombudsman
were a judge acting judicially; or
(g) publishes, or permits or allows to be published, information given to the ombudsman, or any contents of a document
produced to the ombudsman, if the ombudsman has ordered that the information or contents must not be published.
39
Punishment of contempt
(1) A person's contempt of the ombudsman may be punished under this section.
(2) The ombudsman may certify the contempt in writing to the Supreme Court (the court).
(3) For subsection (2), it is enough for the ombudsman to be satisfied there is evidence of contempt.
(4) The court may issue a warrant directed to a police officer for the arrest of the person to be brought before the court
to be dealt with according to law.
(5) The Bail Act 1980 applies to the proceeding for the contempt started by the certification in the same way it applies
50
to a charge of an offence.
(6) The court must inquire into the alleged contempt.
(7) The court must hear-(a) witnesses and evidence that may be produced against or for the person whose contempt was certified; and
(b) any statement given by the person in defence.
(8) If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had
committed the contempt in a proceeding in the court for the enforcement of a non-money order.
(9) The Uniform Civil Procedure Rules 1999, so far as they relate to the enforcement of non-money orders, apply, with
necessary changes, to the court's investigation, hearing and power to punish.
(10) The ombudsman's certificate of contempt is evidence of the matters stated in the certificate.
45
Information disclosure and privilege
(1) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or given to
officers of an agency, whether imposed by any Act or by a rule of law, applies to the disclosure of information relevant
to a preliminary inquiry or an investigation by the ombudsman.
(2) In a preliminary inquiry or an investigation, the State or an agency is not entitled to any privilege that would apply
to the production of documents, or the giving of evidence, relevant to the investigation, in a legal proceeding.
(3) A person has, for the giving of information and the production of documents or other things relevant to a
preliminary inquiry or an investigation, equivalent privileges to the privileges the person would have as a witness in
proceedings in a court.
47
Protection of person helping ombudsman
(1) This section applies if a person (relevant person) gives information or a document to the ombudsman for the
purposes of a preliminary inquiry or an investigation.
(2) A person must not cause, threaten to cause, or attempt or conspire to cause or induce someone else to cause,
detriment to the relevant person because, or substantially because, the relevant person gave the information or
document to the ombudsman.
Maximum penalty--100 penalty units.
(3) In this section-- detriment, to a person, includes dismissal of the person from the person's employment.
CRIME AND MISCONDUCT ACT
2001
203
Protection of members, legal representatives and witnesses
(1) The presiding officer of a commission hearing has, in the performance of the presiding officer's duties for the
Whistleblowing Legislation in Queensland: The Agenda for Reform 51 hearing, the same protection and immunity as a Supreme Court judge.
(2) A lawyer or other person when appearing for someone at a commission hearing has the same protection and
immunity as a barrister appearing for a party in a proceeding in the Supreme Court.
(3) A person required to attend or appearing at a commission hearing as a witness has the same protection as a witness
in a proceeding in the Supreme Court.
(4) No criminal or civil liability, other than liability under this Act, attaches to a person for compliance, or purported
compliance in good faith, with a requirement made under this Act.
(5) In particular, if a person produces a document or thing under a notice to discover or a notice to produce, no civil
liability attaches to the person for producing the document or thing, whether the liability would arise under a contract or
otherwise.
211
Injury or detriment to witness
A person who injures or threatens to injure, or causes or threatens to cause detriment of any kind, to another person
because-(a) the person, or someone else, appeared as a witness before the commission; or
(b) the person, or someone else, gave, or is to give, evidence before the commission; or
(c) the person, or someone else, complied with, or is about to comply with, a notice under section 75;
commits a misdemeanour.
Maximum penalty--255 penalty units or 3 years imprisonment.
212
Offence of victimisation
A person must not-(a) prejudice, or threaten to prejudice, the safety or career of any person; or
(b) intimidate or harass, or threaten to intimidate or harass, any person; or
(c) do an act that is, or is likely to be, to the detriment of any person;
because the person mentioned in paragraph (a), (b) or (c), or someone else, gave evidence to, or helped, the commission
in the performance of its functions.
Maximum penalty--85 penalty units.
338
Protection of witnesses etc.
(1) This section applies if it appears to the commission the safety of a person may be at risk or the person may be
52
subject to intimidation or harassment because the person-(a) is helping or has helped the commission in the performance of its functions; or
(b) is to attend, is attending or has attended at a commission hearing to give evidence or to produce a document or
thing; or
(c) proposes to produce or has produced a document or thing to the commission otherwise than at a commission
hearing.
(2) The commission may, with the person's consent, provide witness protection for the person under this Act or the
Witness Protection Act 2000.
344
Injunctions
(1) The commission may apply to the Supreme Court for an injunction on the ground that a person has engaged, or is
proposing to engage, in conduct that constitutes or would constitute-(a) a contravention of section 212; or
(b) attempting to contravene section 212; or
(c) aiding, abetting, counselling or procuring a person to contravene section 212; or
(d) being in any way, directly or indirectly, knowingly concerned in or a party to the contravention of section 212; or
(e) conspiring with others to contravene section 212.
(2) If the court is satisfied that the ground is made out, the court may grant the injunction in the terms it considers
appropriate.
(3) Subsection (2) has effect despite the provisions of the Industrial Relations Act 1999.
(4) The court may grant an interim injunction until it decides the application.
(5) Before the court grants an injunction, it must be satisfied on the balance of probabilities that the person who gave
evidence to or assisted the commission acted in good faith.
(6) The court may rescind or vary an injunction granted under subsection (2) or (4).
(7) The court may grant an injunction restraining a person from engaging in conduct-(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of
that kind; or
(b) whether or not the person has previously engaged in conduct of that kind; or
(c) whether or not there is an imminent danger of substantial damage to someone else if the person engages in conduct
Whistleblowing Legislation in Queensland: The Agenda for Reform 53 of that kind.
(8) The court may grant an injunction requiring a person to do an act or thing-(a) whether or not it appears to the court that the person intends to fail again, or to continue to fail, to do the act or
thing; or
(b) whether or not the person has previously failed to do the act or thing; or
(c) whether or not there is an imminent danger of substantial damage to someone else if the person fails to do the act or
thing.
(9) If the commission applies for an injunction under this section, the court may not require the applicant or any other
person, as a condition of granting an interim injunction, to give an undertaking about damages.
(10) An application under this section is to be heard in closed court.
CHILD PROTECTION ACT 1999
22
Protection from liability for notification of, or information given about, alleged harm or risk of harm
(1) This section applies if a person, acting honestly-(a) notifies the chief executive or another officer of the department that the person suspects-(i) a child has been, is being or is likely to be, harmed; or
(ii) an unborn child may be at risk of harm after he or she is born; or
(b) gives the chief executive, an authorised officer or a police officer-(i) information about alleged harm or alleged risk of harm to a child; or
(ii) information, relating to an unborn child, about a suspected risk of harm to the child after he or she is born.
(2) The person is not liable, civilly, criminally or under an administrative process, for giving the notification or
information.
(3) Also, merely because the person gives the notification or information, the person can not be held to have-(a) breached any code of professional etiquette or ethics; or
(b) departed from accepted standards of professional conduct.
(4) Without limiting subsections (2) and (3)-(a) in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information; and
(b) if the person would otherwise be required to maintain confidentiality about the information under an Act, oath or
rule of law or practice, the person--
54
(i) does not contravene the Act, oath or rule of law or practice by giving the information; and
(ii) is not liable to disciplinary action for giving the information.
159Q
Protection from liability for giving information
(1) This section applies if a person, acting honestly, gives information in compliance with this chapter.
(2) The person is not liable, civilly, criminally or under an administrative process, for giving the information.
(3) Also, merely because the person gives the information, the person can not be held to have-(a) breached any code of professional etiquette or ethics; or
(b) departed from accepted standards of professional conduct.
(4) Without limiting subsections (2) and (3)-(a) in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information; and
(b) if the person would otherwise be required to maintain confidentiality about the information under an Act, oath or
rule of law or practice, the person-(i) does not contravene the Act, oath or rule of law or practice by giving the information; and
(ii) is not liable to disciplinary action for giving the information.
GUARDIANSHIP AND
ADMINISTRATION ACT 2000
247
ENVIRONMENTAL
PROTECTION ACT 1994
482
Whistleblowers' protection
Protects any person from potential civil, criminal or administrative liability for disclosing to an official (such as the
registrar or tribunal staff, guardian, or a visitor) information about a person's conduct that breaches the Act.
Offence punishable by fine to obstruct an authorised person conducting investigation and enforcement actions under the
Act (could extend to interference with a witness).
Whistleblowing Legislation in Queensland: The Agenda for Reform 55