ICAC to Review and Update Whistleblower Protection

 Adelaide Law School’s Dr Gabrielle Appleby, Dr Judith Bannister and PhD candidate Anna Olijnyk recently made a submission to the South Australian Independent Commissioner Against Corruption’s review of the Whistleblowers Protection Act 1993 (SA).   This follows Gabrielle, Judith and Anna’s work on the new Commonwealth whistleblower legislation earlier this year.

The submission commends the South Australian legislation for its accessibility and clarity.  Compared to legislation in some other jurisdictions, the South Australian Act is relatively straightforward; there are few technical obstacles standing in the way of whistleblowers wishing to gain the protection of the Act. 

However, the submission identifies four major areas for improvement.  These areas all relate to the need to provide both practical and symbolic support for whistleblowers who make the difficult and risky decision to disclose information in the public interest. 

First, the submission recommends that the criteria which trigger the protection of the Act should be framed as ‘reasonable belief’ rather than objective tests.  Currently, a disclosure is protected if it contains information that tends to show involvement in certain activities (such as illegal activity or mismanagement of public resources) and is made to an appropriate person.   The submission recommends that the protection of the Act should turn on the whistleblower’s reasonable belief that the information shows involvement  in those activities, and that the person to whom the disclosure is made is appropriate.

Secondly, the SA Act places no obligation on the recipient of a disclosure to take any action in relation to the matters that the whistleblower raises.   If, however, there is an investigation by the police or an official investigating authority, s 6 of the Act provides that a whistleblower who fails to assist with the investigation forfeits the protection of the Act.  The submission recommends that s 6 be repealed, and that provisions requiring the investigation of conduct disclosed by whistleblowers be introduced.   A requirement for investigation would bring South Australia into line with most other Australian jurisdictions and, more importantly, would ensure that whistleblowers’ revelations of improper conduct do not go unheeded.

Thirdly, the SA Act does not impose criminal liability on those who undermine the protection of whistleblowers.  While the Act does provide that a person must not victimise, or divulge the identity of, a whistleblower, no offence or penalty is associated with these actions.  Instead, it is left to the whistleblower to pursue civil remedies in tort or under the Equal Opportunity Act 1984 (SA).   Not only does this place a heavy burden on a whistleblower; it also fails to act as an effective deterrent.  The submission recommends the introduction of penalties for victimisation, or disclosure of the identity of a whistleblower.

Finally, the submission recommends that financial assistance be provided to whistleblowers who are forced to pursue, or defend, litigation as a result of blowing the whistle.  This step is necessary in order to make the protection afforded by the Act truly effective.

A full copy of the submission is available here.

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