7-point plan to help whistleblowers

October 2019

Transparency International Australia and Griffith University provide this seven-point plan for restoring public trust in Commonwealth whistleblower protections:

1. Undertake comprehensive overhaul or replacement of the Public Interest Disclosure Act 2013 (Cth) – not as a piecemeal reform, but so as to better support a consistent, coherent and workable national approach to whistleblower protection across Australia’s public sector, business and not-for-profit organisations.

2. Reform the criteria for when whistleblowing outside official channels remains protected – to be simpler, more workable, reflect presumed public interest in disclosure of wrongdoing, and be consistent for both the public sector (PID Act) and Commonwealth-regulated private sector (Corporations Act or replacement stand-alone legislation).

3. Revise statutory definitions of ‘intelligence information’ (PID Act, s. 41) and ‘inherently harmful information’ (Criminal Code, ss.121, 122) to ensure whistleblower protection at all levels is extended to genuine public interest disclosures i.e. which meet the simplified public interest tests and pose no actual, real, unacceptable risk of harm to national security, defence or law enforcement interests.

4. Strengthen journalism and other third-party shield laws to ensure (a) confidentiality of public interest whistleblower sources or clients, and (b) freedom of journalists and other relevant professionals from prosecution for receiving or using public interest disclosures in the fulfilment of their duties or functions (PID Act and Evidence Acts).

5. Ensure it is viable for public servants to use internal and official channels for disclosure of wrongdoing, by updating the PID Act to be a true whistleblower protection regime.

  • Amend anti-detriment protections to match international best practice, by removing the de facto requirement for a deliberate, knowing intention to cause harm before civil or employment remedies can be accessed (s. 13(1)(b)&(c))
  • Update the anti-detriment protections to match new national best practice (Corporations Act), by:
      • expanding the definition of unlawful detriment beyond employment actions;
      • extending civil liability to organisational failures to support and protect;
      • reversing the onus of proof for civil or employment remedies;
      • providing for exemplary damages

6. Make protections real by providing effective support to public interest whistleblowers:

  • Update the statutory minimum requirements for whistleblowing policies and programs in the public sector, and increase the Commonwealth Ombudsman’s monitoring and support roles;
  • Establish a fully resourced whistleblower protection authority to assist all reporters and regulators with advice, support, coordination and enforcement action to prevent, deal with, and gain remedies for detrimental conduct.
  • Continue to consider a reward scheme for public interest whistleblowers.

7. Recognise the wider validity of public interest disclosure of official information, beyond employee disclosures of wrongdoing, by making available a general public interest defence for any citizen charged with offences of unauthorised disclosure or receipt of official information (Criminal Code).