Are you curious about the Whistleblower Protection Act? Ever faced whistleblower retaliation? This article takes a broad approach to understand what kind of protections whistleblowers receive in Australia. Keep reading to find out more.
What is whistleblowing?
Whistleblowing is the basic practice of making disclosures about misconduct. The misconduct can be a past incident, an existing one or one in the execution stage Whistleblowers can be a company employee or a customer. They report actions that they find to be illegal or non-compliant with company policies. Whistleblowing can be evident within an organisation as well as in public. Let’s look at both types of whistleblowing, one at a time;
- Internal Whistleblowing – This is the kind of whistleblowing that takes place within an organisation. Here, the whistleblower reports incidents of misconduct to the company authorities. Company authorities employ the practice of whistleblowing by encouraging employees to report wrongdoings within the company. This ensures that corporate security and safety is maintained. Actions that go against the code of conduct of the company are deemed wrong. The company conducts a proper inspection and imposes appropriate disciplinary sanctions.
- External Whistleblowing – This is the kind of whistleblowing that takes place in public. Public disclosures can be printed or digital publication to either the police or the media. A whistleblower goes to a concerned authority or a government agency to report the observations. In external whistleblowing, there is actual litigation that takes place.
What is the Whistleblower Protection Act?
The Australian Whistleblowing Protection Act mentions Whistleblower Protection Right and Claims. It dictates protection laws for specific disclosures both at the federal and state level. Protection is provided depending on the election law requirement and the disclosed issue. In Australia, disclosing information on national security and immigration is a punishable offense. In such cases, whistleblowers may be liable for imprisonment. A whistleblower may depend on the Whistleblower Protection Act to provide protection. However, conditions apply;
- A federal-level disclosure should first occur internally
- An external disclosure can be made if the concern is found credible
- The disclosure should be made in the interest of the public
- The disclosure cannot include law enforcement details that are deemed as sensitive public information
- The disclosure cannot discuss a particular minister’s course of existing or potential action
Whistle-blowers should consult relevant employment law lawyers or whistleblower attorneys for guidance. These lawyers are efficient, updated and aware of amendments concerning whistleblowing. Every state has its own set of the Whistleblower Protection Act manual. All of them define whistleblowing with subjective references. The kinds of misconduct entailed within the act are different for every state. So, it is advisable to check on public sensitive subject matters to prevent potential legal action.
What bodies do the whistleblowing law apply to?
In 2019, significant changes were made to Australia’s whistleblowing law framework. Under this, the new laws applied to the following:
- A company/organisation
- A foreign or financial corporation formed within the limits of the Commonwealth
- An Authorised Deposit-Taking Institute (ADI) or a licensed Non-Operating Holding Company (NOHC) or a subsidiary of either bodies
- A general insurer or an authorised NOHC or a subsidiary of either bodies
- A life company or a licensed NOHC or a subsidiary of either bodies
- A superannuation organisation or a super trustee
Note – Refer to the original act listings to read about the limitations for each entity included in Australia’s whistleblowing legislation.Under the new laws, the previously mentioned bodies have to follow a whistleblowers policy. The policy requires companies to maintain a few obligations. These are:
- Privacy – The confidentiality of a whistleblower must be maintained to prevent retaliation of any form. The identification of the whistleblower is kept private until;
- The whistleblower wishes or consents to disclose their identity
- The whistleblower’s identity is disclosed to the Australian Prudential Regulation Authority for obtaining legal advice on whistleblowing laws
- Unfair Conduct – This ensures that no company encourages harmful threats targeted towards a whistleblower. The kind of detrimental conduct that is considered unlawful are as follows;
- Dismissing/ firing an employee
- Causing injury on working hours
- Shift to a disadvantageous position
- Harassment or intimidation
- Physical or psychological harm
- Property damage
- Reputational Damage
- Causing financial damage or business ruin
- Other forms of damage
Non-compliance to maintaining a whistleblowing policy or confidentiality or fair conduct will result in an appropriate penalty.
Why do whistleblowers need protection?
Whistleblowers need protection because they may face retaliation in response to the disclosures that they made. Retaliation can be in the form of demotion, harassment, dismissal, discrimination etc. A whistleblower can report retaliation with direct and indirect sources of evidence. Some of the indirect evidence that may aid in proving whistleblower retaliation is:
- Events occurring in quick succession, i.e. the incidents of disclosure followed by retaliation
- Presence of eyewitness /eyewitnesses
- Employment records showing demotion or similar action indicating retaliation
- Threats in the form of emails from the employer
- Other inferential proof of retaliation
Non-compliance to laws stated in the Australian Whistleblowing Protections Act
The penalty as per Corporations Act concludes the following:
- Unfair Conduct – In case of criminal penalty, an individual has to pay $50,400 or face two-year jail time. A corporate body has to pay $504,000. In the case of a financial penalty, an individual has to pay $1,050,000 or three times the benefit derived. A corporate body has to pay $10.5m or three times the benefit derived or 10 percent of its annual turnover.
- Confidentiality Violation – In case of criminal penalty, an individual has to pay $12,600 or face six months of jail time. A corporate body has to pay $126,000. In the case of a financial penalty, an individual has to pay $1,050,000 or three times the benefit derived. A corporate has to pay $10.5m or three times the benefit derived or 10 percent of its annual turnover.
- Non-compliant Whistleblower Policy – Here, the criminal penalty is applicable whereby an individual has to pay $12,600. A corporate has to pay $126,000.
For proper inquiry and legal advice regarding whistleblowing in Australia, consult a licensed lawyer. Contacting local lawyers are more suitable for quick services and detailed consultation. If you ever face whistleblowing retaliation in Perth, contact a qualified employment lawyers Perth for proper decision-making on how to go about it.