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Australia improves protection for whistleblowers (2)

FCRO Subsection: 
Editorial Staff

Part 2 of the review of Australia'sTreasury Laws Amendment (Enhancing Whistleblower Protections) ACt 2019

The restricted list of persons to whom a discloser can pass information referred to yesterday relates to those cases where "discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:

(a) the regulated entity; or

(b) if the regulated entity is a body corporate—a related body corporate of the regulated entity."

That's simple and clear. And it remains the case that only such information attracts protection. However, there is a significant modification of that restriction in the case of "public interest disclosure and emergency disclosure."

In the case of a public interest disclosure (that is a disclosure in the public interest) provided a protected disclosure has previously been made, then the discloser can, within limits, make the facts in the disclosure public. There must be compliance with a long list of conditions if the discloser is to remain protected.

The conditions are that
- the authorised disclosure was made more than 90 days earlier, and
- he "does not have reasonable grounds to believe" that action has been, or is being taken to remedy the situation, and
- he has "reasonable grounds to believe that making a further disclosure would be in the public interest, and
- after the 90 days period, he gave written notice to the body to which he made the original disclosure that allows it to identify the report and tells them that he intends to make a further disclosure, and
- that the information disclosed is no more than that in the previous disclosure, and
- that the further disclosure is made to a federal or state Member of parliament, or
- a journalist.

The term "journalist" is very loosely defined. How loosely? It's difficult to see how anyone other than a blogger or podcaster is excluded:

" journalist means a person who is working in a professional capacity as a journalist for any of the following:

(a) a newspaper or magazine;

(b) a radio or television broadcasting service;

(c) an electronic service (including a service provided through the internet) that:

(i) is operated on a commercial basis, or operated by a body that provides a national broadcasting service (within the meaning of the Broadcasting Services Act 1992 ); and

(ii) is similar to a newspaper, magazine or radio or television broadcast."

The "emergency disclosure" provision is in very similar terms but without the time restriction where "the discloser has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment; "

It follows, then, that reports of e.g. fraudulent misconduct by directors cannot fall under the emergency disclosure provisions but may fall under the public interest exception if no action is being taken by the regulator, etc. to which the report was made.

It is also very clear that passing information to Wikileaks or The Guardian is not protected unless a formal report to the relevant regulator has been made at least 90 days earlier and no action has or is being taken.

Reports relating to work related personal grievances that do not have "significant implications" for the company which is the subject of the report are not protected. For example, a report that an insulation installation company refused to provide masks, goggles and gloves resulting in the illness of many workers would probably be protected because it can have expensive consequences for the company; a complaint that only directors get chocolate digestive biscuits would not.