Whistleblower Protection Ten Years On: Consistencies, Inconsistencies & Regulatory Dilemmas

1. Whistleblower Protection Ten Years On: Consistencies, Inconsistencies & Regulatory Dilemmas Presenter John McMillan Commonwealth Ombudsman

2. The title of the law • Whistleblower Protection Act • Protected Disclosures Act • Public Interest Disclosures Act • Other terminology – eg, internal witness management; principled organisational dissent

3. Who is protected • Public sector employees • Private sector employees • Contractors • Any person

4. What disclosures are protected: about … • Illegality or contravention of the law by a public official • Fraudulent or corrupt conduct • A disciplinary offence/breach of a code of conduct • Danger to public health, safety or the environment • Financial mismanagement and public wastage • Improper conduct • Scope of “public official”

5. What kind of protection • Obligation on relevant agency to investigate disclosure • Obligation on agency to protect discloser, eg, confidentiality, relocation, progress report • Protection of person against disciplinary and criminal action by reason of disclosure • Offence to take detrimental/reprisal action • Civil damages to redress reprisal • Injunction to restrain reprisal

6. The criteria for protection • “Reasonable belief” that it is a public interest disclosure • Disclosure that tends to show the alleged conduct • Disclosure must be to a designated authority • Made in good faith/not knowingly false/not vexatious or frivolous • Public disclosure to media • Reverse onus of proof applying to agency • Anonymous disclosures

7. Other issues • Annual reporting on operation of the scheme • Obligation on agencies to establish internal reporting system • Coordination/supervision of the scheme • Periodic review of the scheme

8. Commonwealth Ombudsman 2005