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Whistleblower Guide

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Individuals observing corrupt behaviour in either government or the corporate sector often face a difficult, dangerous and lonely road.

Although confusing, Australian legislation offers some protection for ethical disclosures through the Public Interest Disclosure Act and the Corporations Act.

To help navigate this complex area of law, we’ve created this map for some guidance on the twisting road to gain protection. You do not need to provide any personal information to step through the guide.

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Private sector
Public sector
Intelligence services

Public sector officials who suspect wrongdoing within the Commonwealth public sector are offered protections under the Public Interest Disclosure Act 2013 (PID Act).

This act protects officials who disclose information from reprisal, exposure of their identity, and civil, criminal and administrative liability.

The PID Act provides protection to current, and former, Commonwealth officials who report disclosable conduct. This includes:

– Public servants and parliamentary service officers
– Service providers under a Commonwealth contract
– Australian Defence Force members
– Australian Federal Police appointees
– Statuatory office holders
– Staff of Commonwealth companies
– Individuals taken to be public officials

You can disclose information you believe, on reasonable grounds, shows wrongdoing by a public official, or contracted service provider, within a Commonwealth Government agency.

This includes:

  • Contravention of the law
  • Corruption
  • Conduct that perverts the course of justice
  • Abuse of a public official’s position
  • Wastage of public funds
  • Conduct that is an abuse of public trust
  • Conduct that unreasonably endangers health and safety, or the environment
  • Misconduct relating to scientific research, analysis or advice
  • Maladministration, including conduct that is unjust, oppressive or negligent
  • Conduct that, if proved, would result in disciplinary action.

The act does not provide protection to disclose:

  • the proper activities of intelligence agencies
  • disagreements that relate only to government policy (and related expenditure)
  • the actions of parliamentarians
  • workplace grievances or employment disputes.

How Do I Report Wrongdoing?

If you are eligible for protection, and have information related to suspected wrongdoing, then the first step is to make an ‘Internal Disclosure’ to an ‘authorised officer’ within the organisation you are employed within, or to the Commonwealth Ombudsman or Inspector General of Intelligence Services.

You do not need to prove that what you suspect is true, as long as you reasonably believe that the information tends to show disclosable conduct.

It is the agency’s responsibility to investigate the disclosable conduct. However, wherever possible you should be clear and accurate in the information you provide. You should also assist the agency to assess the information by providing any supporting information you have, such as documents, file notes or the names of any people who witnessed the conduct.

You do not have to identify yourself when making a public interest disclosure.

You may want to initially approach the agency anonymously to discuss your concerns about confidentiality.

You should be aware, however, that anonymous disclosures, like anonymous complaints, are often more difficult to investigate.

This is going to be a long list….

Can I Report Wrongdoing To A Journalist?

In general, the PID Act does not offer protection to those who make disclosures outside of authorised channels.

However, there are some circumstances where you have the right to make an ‘external disclosure’ – for example, to a journalist or union represenative.

If you do not meet the threshold to make an external disclosure, but believe the information you wish to disclose concerns substantial and immient danger to the health or safety of one or more people or the environment, you may also make an ’emergency disclosure’ to anyone.

You can make an external disclosure to someone outside your organisation if:

  • The investigation has not been completed within the time frame of the PID Act (90 days), and no extension has been granted, or
  • An investigation was done, but you reasonably believe that it was inadequate

And

  • The disclosure is not (on balance) contrary to the public interest

The extent of the information you disclose must be only what is necessary to alert the recipient of the substantial and imminent danger.

The danger would need to be substantial and imminent in the sense that the physical impact on safety or to the environment was imminent.

If you have not previously made an internal disclosure about the matter, or if you have done so and the investigation
is not yet completed, there must be exceptional circumstances justifying your action.

Can I Speak To A Lawyer?

You may give information to a lawyer for the purposes of seeking legal advice or professional assistance about making a PID, provided you do not disclose intelligence-related matters or sensitive law enforcement information.

If you are discussing national security matter, or other protected information, be aware that the lawyer should have necessary security clearance.

As a public interest law firm, Xenophon Davis is committed to….

People who suspect wrongdoing within the private sector are offered protections under the Corporations Act 2001 (Corporations Act).

This act protects those who disclose information from reprisal, exposure of their identity, and civil, criminal and administrative liability.

The Corporation Act provides protection to:

– Current, and former, employees and company officers;
– Currernt, and former, suppliers and contractors of companies
– Their spouses and family members

You must have reasonable grounds to suspect that the information you are disclosing about the company or organisation concerns:

  • misconduct, or
  • an improper state of affairs or circumstances.

This information can be about the company or organisation, or an officer or employee of the company or organisation, engaging in conduct that:

  • breaches the Corporations Act
  • breaches other financial sector laws enforced by ASIC or APRA
  • breaches an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months, or
  • represents a danger to the public or the financial system.

‘Reasonable grounds’ means that a reasonable person in your position would also suspect the information indicates misconduct or a breach of the law.

If your report of misconduct is solely about a personal grievance you are having in the workplace, the whistleblower protections in the law won’t apply.

How Do I Report Wrongdoing?

If you are eligible for protection, and have information related to suspected wrongdoing, then the first step is to make an ‘Internal Disclosure’ to an ‘authorised officer’ within the organisation you are employed within, or to the Commonwealth Ombudsman or Inspector General of Intelligence Services.

You do not need to prove that what you suspect is true, as long as you reasonably believe that the information tends to show disclosable conduct.

It is the agency’s responsibility to investigate the disclosable conduct. However, wherever possible you should be clear and accurate in the information you provide. You should also assist the agency to assess the information by providing any supporting information you have, such as documents, file notes or the names of any people who witnessed the conduct.

You do not have to identify yourself when making a public interest disclosure.

You may want to initially approach the agency anonymously to discuss your concerns about confidentiality.

You should be aware, however, that anonymous disclosures, like anonymous complaints, are often more difficult to investigate.

This is going to be a long list….

Can I Report Wrongdoing To A Journalist?

In general, the PID Act does not offer protection to those who make disclosures outside of authorised channels.

However, there are some circumstances where you have the right to make an ‘external disclosure’ – for example, to a journalist or union represenative.

If you do not meet the threshold to make an external disclosure, but believe the information you wish to disclose concerns substantial and immient danger to the health or safety of one or more people or the environment, you may also make an ’emergency disclosure’ to anyone.

You can make an external disclosure to someone outside your organisation if:

  • The investigation has not been completed within the time frame of the PID Act (90 days), and no extension has been granted, or
  • An investigation was done, but you reasonably believe that it was inadequate

And

  • The disclosure is not (on balance) contrary to the public interest

The extent of the information you disclose must be only what is necessary to alert the recipient of the substantial and imminent danger.

The danger would need to be substantial and imminent in the sense that the physical impact on safety or to the environment was imminent.

If you have not previously made an internal disclosure about the matter, or if you have done so and the investigation
is not yet completed, there must be exceptional circumstances justifying your action.

Can I Speak To A Lawyer?

You may give information to a lawyer for the purposes of seeking legal advice or professional assistance about making a PID, provided you do not disclose intelligence-related matters or sensitive law enforcement information.

If you are discussing national security matter, or other protected information, be aware that the lawyer should have necessary security clearance.

As a public interest law firm, Xenophon Davis is committed to….

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