Whistleblower protection in Australia
Whistleblower protection in Australia is offered for certain disclosures under a patchwork of laws at both federal and state level. Eligibility for protection depends on the requirements of the applicable law and the subject matter of the disclosure. Not all disclosures are protected by law in Australia. At federal level, whistleblowers face potential imprisonment for making disclosures about certain subjects, including national security[1] and immigration[2] matters. Transparency International Australia considers the protections for private sector whistleblowers to be generally weaker than for those in the public sector, with the main provisions found in corporations legislation that does not mandate any internal company procedures.[3]
Australia's first whistleblower protection laws were introduced in Queensland following the recommendations of the Fitzgerald Inquiry.[4] Laws have subsequently been introduced in other states and territories, culminating with the adoption of federal legislation with the passage of the Public Interest Disclosure Act 2013.
Federal law
General provisions
The unauthorised disclosure of Commonwealth information is a federal crime under section 70 of the Crimes Act 1914 that carries a penalty of two years imprisonment.[5] The provision is often used to pursue whistleblowers and leaks by federal government employees and private contractors.[6] Since the Abbott Government took office, federal agencies have referred journalists from journalists from the Guardian Australia, news.com.au and the West Australian using this provision in a bid to uncover the sources for immigration stories.[6]
The Public Interest Disclosure Act 2013 introduced a new comprehensive framework for protecting Commonwealth public sector whistleblowers.[7]
National security
The National Security Amendment Act (No 1) 2014 (Cth) amended the legislation governing ASIO to criminalise the disclosure of any information relating to a "Special Intelligence Operation".[8] The Guardian noted that any act committed by ASIO could be declaration a Special Intelligence Operation with the Attorney-General's approval and removed from scrutiny.[1]
Immigration law
Section 42 of the Australian Border Force Act 2015 (Cth) imposes a penalty of two years imprisonment for a whistleblower who makes a disclosure in relation to an Australian immigration detention facility, although section 42(2)(c) exempts a disclosure where it is "required or authorised by or under a law of the Commonwealth, a State or a Territory".[9]
The Conversation considered whether the section 42(2)(c) exemption would apply so that a whistleblower could rely on the protections of Public Interest Disclosure Act 2013 (Cth).[10] It found that the exemption might do apply, but subject to several qualifications, such as:[10]
- the whistleblower would first need to report their concerns internally
- an external disclosure could only then be made after the whistleblower believed on reasonable grounds that the either the investigation or response were inadequate or delayed
- the disclosure must not be contrary to the public interest nor make public sensitive information about law enforcement
- the disclosure cannot be made about a matter in which a Minister has taken action or proposes to take action.
Section 42 of the Australian Border Force Act 2015 (Cth) has been criticised by the Australian Lawyers Alliance for its potential chilling effect on whistleblowers and journalists.[2]
Private sector
Transparency International Australia considers the protections for private sector whistleblowers to be weaker than for those in the public sector, with the main provisions found in corporations legislation that does not mandate any internal company procedures.[3]
Part 9.4AAA of the Corporations Act provides a degree of protection.[11]
State and territory laws
Apart from South Australia, the state and territory whistleblower protection laws only cover the public sector.[12]
Queensland
Protection is currently offered by the Public Interest Disclosure Act 2010 (Qld).[13]
New South Wales
Protection is currently offered by the Protected Disclosures Act 1994 (NSW).[13]
Australian Capital Territory
Protection is currently offered by the Public Interest Disclosure Act 2012 (ACT).[13]
Victoria
Protection is currently offered by the Whistleblowers Protection Act 2001 (Vic).[13]
Tasmania
Protection is currently offered by the Public Interest Disclosures Act 2002 (Tas).[13]
South Australia
Protection is currently offered by the Whistleblowers Protection Act 1993 (SA).[13]
Western Australia
Protection is currently offered by the Public Interest Disclosure Act 2003 (WA).[13]
Northern Territory
Protection is currently offered by the Public Interest Disclosure Act 2008 (NT).[12]
See also
References
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- ↑ 3.0 3.1 http://transparency.org.au/wp-content/uploads/2014/09/FINAL__-Whistleblower-Protection-Laws-in-G20-Countries-Priorities-for__-Action.pdf at page 24
- ↑ Lua error in package.lua at line 80: module 'strict' not found.
- ↑ Crimes Act 1914 (Cth) s 70
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- ↑ Lua error in package.lua at line 80: module 'strict' not found.
- ↑ Lua error in package.lua at line 80: module 'strict' not found.
- ↑ Australian Border Force Act 2015 (Cth) s 42
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- ↑ 13.0 13.1 13.2 13.3 13.4 13.5 13.6 Lua error in package.lua at line 80: module 'strict' not found.
