12th Dec 2019
Would you like to be a more productive, creative and resilient lawyer?
The aged care Royal Commission’s three areas of immediate action are worthy, but won’t fix a broken system5th Dec 2019
Chucking dollars at the sector without a whole-of-government plan could cause harm.
A whistleblower is an individual who makes a public interest disclosure of information.
Whistleblowers perform an essential function in the community, ensuring that public officials are held to account and private actors operate within the confines of the law.
Often, without protection, the whistleblower could be in breach of confidentiality requirements. Victimisation of whistleblowers, such as termination of employment, reputational damage or other negative consequences, often follow public interest disclosures.
Information is usually discovered in an employment-like context, although the Australian Lawyers Alliance argues that disclosures outside of an employment context should also be protected. Ultimately, the appropriate determining factor as to whether a disclosure enjoys whistleblower protection should be whether it is in the public interest for the information to be revealed. While internal disclosures are to be preferred, there may be circumstances where this is not sufficient to protect the public interest.
Whistleblowers’ protections generally specify who may qualify as a whistleblower, the matters on which they may make disclosures, the types of protections they can expect, who they may make disclosures to, and what is required of the recipient of the disclosure. As becomes evident throughout this submission, gaps in any of these areas may mean that whistleblowers are not adequately protected, meaning that the public interest in having misconduct revealed is not adequately met.
Whistleblowing is a component of the right to freedom of speech (article 19 of the International Covenant on Civil and Political Rights (ICCPR)). Without clear secrecy obligations, the default position should be that disclosures are permitted (allowing for permissible exceptions to that right, such as to the rights or reputation of others and national security: article 19.33 of the ICCPR).
In devising laws and practices relating to whistleblowing, the words of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression are worth recalling:
“[T]he more a State can demonstrate that whistle-blowing results in changed institutional behaviour, individual accountability and protection, the more likely it is that whistleblowers will not go public.”
Reforms must cater both for the preference to resolve concerns privately, and the reality that public disclosures are at times necessary, and should never result in negative consequences for the whistleblower.