Whistleblower Protection Ten Years On: Consistencies, Inconsistencies

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Whistleblower Protection Ten Years On
Consistencies, Inconsistencies Regulatory
Dilemmas
Presenter John McMillan Commonwealth Ombudsman
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The title of the law

• Whistleblower Protection Act
• Protected Disclosures Act
• Public Interest Disclosures Act
• Other terminology eg, internal witness
  management principled organisational dissent

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Who is protected

• Public sector employees
• Private sector employees
• Contractors
• Any person

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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

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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

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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

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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

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Commonwealth Ombudsman 2005