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 indeed apply, but would do so subject to several qualifications, such as:[10]

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]

Medical professionals who have worked at Nauru are launching a High Court challenge against the secrecy provisions of the Australian Border Force Act 2015.[11]

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.[12]

State and territory laws

Apart from South Australia, the state and territory whistleblower protection laws only cover the public sector.[13]

Queensland

Protection is currently offered by the Public Interest Disclosure Act 2010 (Qld).[14]

New South Wales

Protection is currently offered by the Protected Disclosures Act 1994 (NSW).[14]

Australian Capital Territory

Protection is currently offered by the Public Interest Disclosure Act 2012 (ACT).[14]

Victoria

Protection is currently offered by the Whistleblowers Protection Act 2001 (Vic).[14]

Tasmania

Protection is currently offered by the Public Interest Disclosures Act 2002 (Tas).[14]

South Australia

Protection is currently offered by the Whistleblowers Protection Act 1993 (SA).[14]

Western Australia

Protection is currently offered by the Public Interest Disclosure Act 2003 (WA).[14]

Northern Territory

Protection is currently offered by the Public Interest Disclosure Act 2008 (NT).[13]

See also

Whistleblowers Australia

References

  1. 1 2 Paul Farrell (26 September 2014). "Journalists and whistleblowers will go to jail under new national security laws". The Guardian.
  2. 1 2 Sarah Sedghi (1 July 2015). "Border Force Act could see immigration detention centre workers jailed for whistleblowing". ABC News. Australian Broadcasting Corporation.
  3. 1 2 http://transparency.org.au/wp-content/uploads/2014/09/FINAL__-Whistleblower-Protection-Laws-in-G20-Countries-Priorities-for__-Action.pdf at page 24
  4. ↑ Dadic, Zac (2009). "Whistleblower Protection and Disclosures to Members of the Queensland Legislative Assembly" (PDF). 24 (2). Australasian Parliamentary Review: 97–113.
  5. ↑ Crimes Act 1914 (Cth) s 70
  6. 1 2 Paul Farrell (22 January 2015). "Journalists reporting on asylum seekers referred to Australian police". The Guardian.
  7. ↑ "Bills Digest No. 125, 2012–13: Public Interest Disclosure Bill 2013" (PDF). Australian Parliamentary Library. Retrieved 20 April 2016.
  8. ↑ "Bills Digest No. 19, 2014-15: National Security Legislation Amendment Bill (No. 1) 2014" (PDF). Australian Parliamentary Library. 3 June 2013. Retrieved 20 April 2016.
  9. ↑ Australian Border Force Act 2015 (Cth) s 42
  10. 1 2 Hoang, Khanh. "FactCheck: Could a whistleblower go public without fear of prosecution under the Border Force Act?". The Conversation. Retrieved 2016-05-06.
  11. ↑ "What are the secrecy provisions of the Border Force Act?". ABC News. 27 July 2016. Retrieved 27 July 2016.
  12. ↑ "Blowing the whistle: Protection for whistleblowers in Australia" (PDF). KordaMentha. September 2014. p. 4. Retrieved 20 April 2016.
  13. 1 2 "Whistleblowing: Some Relevant Considerations" (PDF). CPA Australia. p. 9. Retrieved 20 April 2016.
  14. 1 2 3 4 5 6 7 "Australia – Whistleblowing Protection, Overview". Blueprint for Free Speech. 20 November 2014. Retrieved 20 April 2016.
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