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Whistleblowers Protection Bill 1994
WHISTLEBLOWERS PROTECTION BILL
1994
EXPLANATORY NOTE
GENERAL OUTLINE
Objectives of the legislation
The objective of the Whistleblowers Protection Bill is to enhance the
legal protections for public officers and, in certain circumstances other
persons, who expose wrongdoing.
Reasons why the proposed legislation is necessary
In 1989 the Report of the Commission of Inquiry into Possible Illegal
Activities and Associated Police Misconduct (the Fitzgerald Report)
recommended that legal protection be given to honest public officials who
expose wrongdoing. The Fitzgerald Report proposed that the Electoral and
Administrative Review Commission (EARC) undertake a review of
possible whistleblower protection legislation in Queensland.
EARC presented its Report on Protection of Whistleblowers (Serial No
91/R4) in October 1991. EARC re-affirmed the conclusion of the Fitzgerald
Report that the public interest requires special protection for public officials
who expose wrongdoing in the workplace. The EARC report
recommended that comprehensive whistleblower protection legislation be
enacted to improve the protections available to whistleblowers in
Queensland.
General description of proposed Whistleblowers Protection Scheme
The Whistleblowers Protection Bill 1994 (the Bill) protects
whistleblower disclosures by public officers and, in certain circumstances,
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Whistleblowers Protection Bill 1994
by other persons including private sector employees. This Note examines
firstly how the Bill applies to public officers and then explains how the
legislation applies to private sector employees.
1. Application of the scheme to public officers
Types of public interest disclosures that can be made by public officers
The Bill protects a public officer who makes a disclosure (described in
the Bill as a "public interest disclosure") of information about:
� official misconduct (clause15); or
� maladministration by a public sector entity which adversely
affects a person's interests in a substantial and specific way
(clause 16). ("Maladministration" is defined as administrative
action that is unlawful, or arbitrary, unjust, oppressive,
improperly discriminatory or taken for an improper purpose); or
� negligent or improper management by a public officer, public
sector entity or a government contractor resulting or likely to
result in a substantial waste of public funds (clause 17); or
� conduct by another public officer, or by anyone, causing a
substantial and specific danger to public health or safety or to the
environment (clause 18).
As defined in the Bill's Dictionary , the term "public officer" covers a
wide range of public officials. "Public officer" means any constituent
member or employee (whether permanent or temporary) of a public sector
entity in Queensland. "Public sector entity" (defined in Schedule 5)
includes:
� a Parliamentary committee;
� the Parliamentary Service Commission;
� a court, tribunal or commission of inquiry;
� the administrative offices of courts and tribunals;
� the Executive Council;
� statutory authorities, instrumentalities and commissions (this
includes the Queensland Police Service, the Parliamentary
Commissioner for Administrative Investigations (Ombudsman),
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Whistleblowers Protection Bill 1994
the Queensland Audit Office, the Criminal Justice Commission
(CJC), the Corrective Services Commission, the Public Sector
Management Commission, a Regional Health Authority, and the
Queensland Heritage Council);
� all departments;
� universities, TAFE colleges and agricultural colleges; and
� local authorities.
Disclosures can be made to any appropriate authority
The Bill gives a public officer the legal right to make a public interest
disclosure to any public sector entity that is an "appropriate entity" to
receive the disclosure under clause 26. Under the Bill, a public sector entity
is an "appropriate entity" if:
� the disclosure concerns the conduct of the entity or its staff; or
� the entity otherwise has authority to investigate the disclosure; or
� the person making the disclosure has an honest belief that the
entity is an appropriate entity to receive the disclosure.
If a public sector entity receives a disclosure which concerns conduct that
another public sector entity may investigate, the public sector entity is given
a discretion to refer the disclosure to the other authority (clause 28). A
disclosure referred from one entity to another entity in this way continues to
receive the protections of the Act.
The Bill does not require public sector entities to establish special
procedures for receiving disclosures, however, the whistleblower is
required to use any reasonable procedures that are established by the entity
(sub clause 27(2)).
Internal disclosures by Public officers
Where a public officer has information about wrongdoing within his or
her own public sector entity of a kind mentioned in clauses 15-20, clause 26
permits the officer to disclose the information to their own public sector
entity, if the disclosure concerns the conduct of the entity or that of its staff.
The officer can also disclose the information to any external public sector
entity empowered to investigate or remedy the conduct. Depending on the
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Whistleblowers Protection Bill 1994
conduct, such external authority could include a Parliamentary committee,
the CJC, the Queensland Police, the Queensland Audit Office, the
Ombudsman, a Regional Health Authority, the Queensland Heritage
Council and a range of other investigatory bodies.
For those officers who choose to use external channels, the Bill does not
require them to first disclose their concerns internally. Clearly, it is in the
interests of good management to encourage staff to use internal reporting
procedures where appropriate and, to reinforce this, the Bill places a duty on
public sector entities to protect their staff who make complaints to them.
However, the protections in the legislation for external disclosures are not
dependent on the whistleblower having first used, or attempted to use,
internal channels. (An exception is made in the case of statutory GOCs
where the legislation protects employee disclosures made to management
but not to external authorities other than the CJC. See section of
Explanatory Note below dealing with how the Bill affects GOCs).
Where a public officer discloses information internally, sub clause 27(3)
ensures that the officer always has a right, notwithstanding any disclosure
procedures that might be established by the entity, to disclose the
information to:
� a supervising officer; or
� the chief executive officer; or
� another officer of the entity with authority to receive or take action
on the information disclosed (for example, the internal auditor if
the disclosure is about mismanagement of funds).
The following examples illustrate how the legislation would protect
internal and external disclosures by public officers by reference to a
hypothetical case involving a hospital finance clerk who discloses financial
mismanagement by the hospital:
Example 1
A finance clerk in a public hospital ("Ms A") has information
about negligent management practices by the hospital resulting in
substantial loss of public funds. Ms A discloses the information
to her supervisor, the hospital's chief accountant. Ms A's internal
disclosure is protected as the disclosure is about the conduct of
the hospital and Ms A has a right to make the disclosure to any
supervising officer.
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Whistleblowers Protection Bill 1994
Example 2
Ms A has information about negligent management practices by
the hospital resulting in substantial loss of public funds. Ms A
discloses the information to the regional director of the regional
health authority. Ms A's internal disclosure to the regional
director is protected as the disclosure is about the conduct of the
hospital (which is under the control of the regional health
authority) and Ms A has a right to make the disclosure to the
regional director as the chief executive officer.
Example 3
Ms A has information about negligent management practices by
the hospital resulting in substantial loss of public funds. Ms A
discloses the wrongdoing to the external auditor from the
Queensland Audit Office (QAO). Ms A's external disclosure to
the QAO is protected as it concerns conduct which may be
investigated by the QAO which is an appropriate entity to receive
disclosures of this type.
Example 4
Hospital management and Ms A are called to appear before the
Parliamentary Public Accounts Committee (PAC) which is
inquiring into findings of mismanagement by the hospital made
in a report of the Auditor-General. In the course of the public
hearings, Ms A discloses negligent management practices by the
hospital which have resulted in a substantial waste of public
funds. Ms A's external disclosure is protected as it concerns
conduct which may be investigated by the PAC which is an
appropriate entity to receive disclosures of this type.
Example 5
Ms A has information about improper management practices by
the hospital resulting in substantial loss of public funds. Ms A
chooses to take the information directly to the CJC as the
improper conduct involves official misconduct. Ms A's external
disclosure is protected as it concerns conduct which may be
investigated by the CJC which is an appropriate entity to receive
disclosures of this type.
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Whistleblowers Protection Bill 1994
Confidentiality obligations
The Bill does not confer statutory protection on public interest
disclosures made to the media. The intention of the legislation is to ensure
that disclosures are made to agencies that can take appropriate action on the
information disclosed. Disclosures to the media would not necessarily
further this objective and could engender unwarranted damage to
reputations of persons named or implicated in disclosures.
By their nature, whistleblower disclosures tend to reflect adversely on the
reputations of others. Under the Bill, to qualify for protection the
whistleblower will have to demonstrate that they had a honest belief on
reasonable grounds that the information they disclosed showed the
wrongdoing in question (sub clause 14(2)). However, it will not be
necessary to show that the disclosure was objectively true. This may mean
that information unfairly damaging to reputations may be disclosed by a
whistleblower who has a reasonable belief that the information was accurate
but which, on investigation, turns out to be inaccurate. Provided that the
information was made honestly on reasonable grounds, individuals named
or referred to in the disclosure will have no recourse through defamation
proceedings or other legal action which could otherwise be taken against the
whistleblower.
The legislation endeavours to minimise unwarranted public damage to
reputations by requiring disclosures to be made to entities with the power to
investigate the complaint in accordance with established Parliamentary, legal
or administrative process. Secondly, it imposes a duty on the investigating
authority not to disclose confidential information received in a disclosure,
including the identity of the whistleblower and the identity of a person
against whom the disclosure has been made (clause 55).
However, the appropriate entity is authorised to disclose confidential
information for the purpose of carrying out a lawful function, including
investigation of the disclosure, and to disclose the information to a court or
tribunal, e.g. for the purpose of criminal or disciplinary proceedings (sub
clause 55(3)).
Where required by the rules of natural justice, the entity may advise the
person or persons against whom the disclosure was made of the contents of
a disclosure. The identity of the whistleblower cannot be revealed to such
persons unless it is essential to do so in accordance with the law of natural
justice and it is unlikely that the whistleblower will be victimised as a result
(sub clauses 55 (4)-(5)).
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Whistleblowers Protection Bill 1994
Application of confidentiality obligations to disclosures made publicly to
appropriate entities
The Bill recognises that from time to time public interest disclosures are
made in public proceedings of a Parliamentary committee, a commission of
inquiry, the CJC, a court or tribunal, or other public authority authorised to
take evidence in public proceedings. Such public disclosures are protected
by the legislation.
In respect of such disclosures, the obligation to preserve confidentiality
will not apply except where further disclosure of the information is
prohibited by the entity in accordance with its lawful powers and obligations
(sub clause 55(7)). For example, the CJC has lawful authority to prohibit
publication of evidence given to the Commission on the grounds that
publication would be unfair to a person or contrary to the public interest.
These powers are provided not to "cover up" wrongdoing but to ensure that
the rights of all persons affected by allegations of wrongdoing are properly
protected during investigations.
Protections for public officers who make disclosures
The Bill provides a very wide range of legal protections, sanctions and
remedies to safeguard public officers who make public interest disclosures
under the Act. These are listed and discussed below.
Limitation of Action (clauses 39-40)
A public officer will incur no civil or criminal liability for making a
public interest disclosure and will have absolute privilege in defamation
proceedings and immunity from prosecution for breach of secrecy
obligations.
Unlawful Reprisal (clause 41)
The Bill makes it unlawful for a person to cause detriment to another
person because, or in the belief that, the person has made or may make a
public interest disclosure. The Bill's Dictionary defines "detriment" as:
(a) personal injury or prejudice to safety; and
(b) property damage or loss, and
(c) intimidation or harassment; and
(d) adverse discrimination, disadvantage or adverse treatment about
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Whistleblowers Protection Bill 1994
career, profession, employment, trade or business; and
(e) threats of detriment; and
(f) financial loss from detriment.
Under clause 41 a person who causes detriment in retaliation for
whistleblowing is considered to have taken an unlawful "reprisal".
The Bill recognises that, particularly in the employment context, action
detrimental to a person may be taken for more than one reason. The Bill
provides that the action is a reprisal (and therefore unlawful) if the retaliation
for whistleblowing played a substantial part in the action. However, it will
not be necessary to prove that the reprisal resulted solely from a desire to
retaliate against the whistleblower for making a disclosure.
The proposed test for a reprisal will apply to all proceedings under the
Whistleblowers Protection Act where it is relevant to prove that a reprisal
has occurred or is likely to occur. In respect of proceedings for the proposed
criminal offence of reprisal (see below), it would necessary to apply the
normal criminal standard--that is it would necessary to prove beyond
reasonable doubt that retaliation for whistleblowing was a substantial
ground for the detrimental action. In order to establish a cause of action for
damages or for injunctive relief (see below), it would be necessary to prove
on the balance of probabilities that retaliation for whistleblowing was or is a
substantial ground for the detriment or likely detriment--ie. the normal civil
standard of proof would apply.
Criminal Offence of Reprisal (clause 42)
The Bill establishes that a public officer who takes a reprisal commits a
criminal offence attracting a maximum penalty of $10,020 or 2 years
imprisonment (clause 42) and is also guilty of misconduct and may be
dismissed from office or otherwise disciplined (clause 57).
The commission of the criminal offence of reprisal, and the disciplinary
offence of reprisal sufficient to warrant an officer's dismissal, would
constitute "official misconduct" within the meaning of s.32 of the Criminal
Justice Act. Under the Criminal Justice Act, principal officers of public
sector entities who are covered by that Act will therefore have an obligation
to refer complaints of reprisal to the CJC (subject to any procedures
established by the Commission for referral of suspected official
misconduct).
To facilitate investigation of reprisals, the Bill contains a public interest
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Whistleblowers Protection Bill 1994
disclosure category designed to protect public officers who disclose
reprisals against them or other persons (clause 20). Under clause 26 such
disclosures may be made to any public sector entity where:
� the disclosure concerns the conduct of the entity or its staff; or
� the entity otherwise has authority to investigate the disclosure; or
� the disclosure concerns an alleged reprisal resulting from an initial
public interest disclosure made to the entity; or
� the person making the disclosure has an honest belief that the
entity is an appropriate entity to receive the disclosure.
A public officer will therefore have the choice of disclosing the conduct
to his or own agency (if the disclosure concerns the conduct of the agency
or its staff or the agency can otherwise investigate the complaint) or to an
appropriate external body including the CJC.
Damages Entitlement (clause 43)
The Bill provides that a public officer who suffers a reprisal will have a
right to apply to a civil court for damages including damages for pain and
suffering. (This right will be separate and additional to the whistleblower's
right to seek compensation for loss of income from the Industrial Relations
Commission if they are dismissed for whistleblowing--see below).
A limitation on this right is that the Bill requires that if a claim for
damages goes to trial it must be decided by a judge without a jury. Judges
are likely to be better placed to determine the public interest in assessing the
extent of liability, including the effect on employers should excessive
damages claims be upheld. However, the Bill places no statutory limitation
on any amount that may be awarded by a trial judge.
Employee Appeals (clause 45)
Certain public officers have rights of appeal to an independent review
body where they suffer detriment as a result of certain forms of personnel
action, for example the promotion of another person to a position for which
the officer was also an applicant, or the taking of disciplinary action against
the officer.
The Bill clarifies that where there is a right of appeal in relation to
disciplinary action, or a promotion of another officer, or a transfer, or unfair
treatment, a public officer may appeal to have the action set aside on the
additional ground that the action constituted a reprisal.
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Whistleblowers Protection Bill 1994
The Bill does not give separate authority under the Whistleblowers
Protection Act for a review body to direct remedial action other than to set
aside the action complained against. To do so could prove difficult in the
case of promotion appeals. As appointments to appealable public sector
positions are made on the relative merits of the applicants, it would be
inappropriate for a review body to direct the appointment of the appellant to
the position in question if the only ground considered or substantiated in the
appeal was a reprisal for whistleblowing. However, clause 45 would enable
the original appointment to be set aside and for the selection process to be
recommenced.
Principally, clause 45 is intended to assist:
� Public Servants and certain other employees who have rights of
appeal to the Commissioner for Public Sector Equity under the
Public Sector Management Commission Act 1990;
� Police officers who have rights of appeal to the Commissioner
for Police Service Reviews under the Police Service
Administration Act 1990;
� Members of the Police Service and certain other persons who,
under the Criminal Justice Act, have right of appeal to a
Misconduct Tribunal in respect of disciplinary charges of
misconduct made against them;
� local government employees who have rights of appeal to a local
authority appeals tribunal under the Local Government Act 1993;
and
� officers and employees of the Parliamentary Service who have
rights of appeal to the Parliamentary Service Commission under
the Parliamentary Service Act 1988.
Sub clause 45(3) clarifies that where the appeal is to a review body
having recommendatory not determinative powers, the officer may seek a
recommendation from the review body that an action constituting reprisal
be set aside. An example of such a review body is the Commissioner for
Police Service Reviews whose powers are limited to making
recommendations to the Police Commissioner in respect of appeals made
by Police officers.
Relocation of a Public Sector Employee (clause 46)
Where it is likely that a reprisal will be taken against a public servant or
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Whistleblowers Protection Bill 1994
other employee of a department, and the only practical way to remove the
danger is to relocate the person, the Bill gives the person the right to appeal
to the independent Commissioner for Public Sector Equity. An appeal may
also be made on the person's behalf by his or her chief executive.
Where the Commissioner upholds the appeal, the Commissioner is
empowered to recommend to the Governor in Council that the person be
moved to another location within the person's same department or to
another department and, if the person is a public servant, that the person's
position be transferred with them. If the officer is a member of the Senior
Executive Service, the officer may also be transferred to another location
within the public sector.
The Bill gives the Governor in Council necessary powers to give effect to
the Commissioner's recommendation including authority to abolish the
officer's position and recreate it at no less a classification in another
department.
Importantly, a person cannot be relocated under this section without his
or her consent. Also, where it is proposed to transfer a person to another
department, the consent of the chief executive of that department must also
be obtained. It would not be in the best interests of an employee to be
relocated to another agency where the chief executive was opposed to the
transfer.
Protection Against Unfair Dismissal (Schedule 4)
The Bill amends the Industrial Relations Act 1990 to make it unlawful to
dismiss a public officer for making a public interest disclosure under the
Whistleblowers Protection Act 1994.
The effect of this is to give an employee dismissed for making a public
interest disclosure the clear right to seek remedy from the Industrial
Relations Commission under the unfair dismissal provisions of the
Industrial Relations Act. Under that Act, if the Commission is satisfied that
the employee was dismissed unlawfully the Commission is empowered to
reinstate the employee or to award compensation.
Injunctive Relief (clauses 47-54)
The Bill enables an injunction to be sought from the Industrial Relations
Commission to restrain a reprisal contemplated or taken against a public
officer for making a public interest disclosure under the Whistleblowers
Protection Act, where the reprisal involves a breach of employment
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Whistleblowers Protection Bill 1994
conditions established under the Industrial Relations Act. The injunction
may be sought by the public officer, or by a relevant union on the officer's
behalf, or by the CJC if the reprisal involves conduct that the CJC can
investigate (i.e. official misconduct or misconduct by a member of the
Police Service).
Where an unlawful reprisal does not fall within the jurisdiction of the
Industrial Relations Commission, the Bill enables an injunction to be sought
from the Supreme Court. The injunction may be sought by the officer, or
by the CJC if the reprisal involves conduct that the CJC can investigate.
The Bill authorises the Industrial Relations Commission and the
Supreme Court to direct that an application for injunctive relief be heard in
chambers rather than in open court, and also to order that any proceedings
for an injunction not be published. The direction may be given where the
Commission or the Court considers that disclosure of the proceedings
would not be in the public interest, or that persons other than parties to the
application do not have sufficient reason to be informed of the proceedings.
This discretionary power is provided primarily to safeguard the legitimate
interests of the whistleblower where, in proceedings for injunctive relief, he
or she may be, or has been, subject to unsubstantiated attacks on their
reputation from a party against whom the injunction is being, or has been,
sought.
The Bill also allows the Supreme Court or the Industrial Relations
Commission to hear an application for an injunction ex parte (that is without
the other parties being heard) if considered necessary by the Court or the
Commission, for example, because of the urgency of the situation (see Re
Griffiths 1991 2 Qd R 29).
2. Application of the Scheme to Private Sector Employees
In its Report on Protection of Whistleblowers, EARC recommended that
private employees should be protected for disclosing activities by private
sector employers involving danger to public health and safety or the
environment. The Government does not agree with such a broad approach
which could impose additional costs for small business arising from the
procedural requirements of whistleblower protection, and the possibility that
small firms could face litigation over claims arising from relatively trivial
disclosures.
Nevertheless, the Government considers that improved statutory
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Whistleblowers Protection Bill 1994
protection is warranted for both private and public sector employees who
disclose information in the following categories:
(a) information given to any appropriate entity about
substantial and specific danger to the health or safety of a
person with a disability. Sub clause 19(1)(a) covers any person
who makes such disclosures.
This disclosure category is especially intended to protect
employees of disability services managed by the State or by
private institutions who expose practices undertaken by these
services which substantially threaten the safety and well being of
their clients. In light of recent investigations by the CJC, there is a
recognised need to protect the interests of intellectually disabled
persons in institutional care who are particularly vulnerable to
potential abuse. However, the definition of disability is not
confined only to intellectual disability;
(b) complaints made to the Health Rights Commission about
health services. The Health Rights Commission Act 1991 already
provides a range of protections for persons making complaints to
the Health Rights Commission who are entitled to do so under
that Act; however, amendments to the Act in Schedule 4 of the
Bill are designed to strengthen these protections generally
consistent with those available under the Whistleblowers
Protection Act; and
(c) information given to any appropriate entity about the
commission of a prescribed offence where the commission of
such an offence constitutes a substantial and specific danger
to the environment. Sub clause 19(1)(b) covers any person
making such disclosures.
Sub clause 19(1)(b) has to be read in conjunction with Schedule 2
of the Bill which lists the prescribed offences to which this
disclosure category relates. The offences include unlawful release,
discharge, and carriage of toxic and otherwise dangerous goods
and substances; serious contamination of land; unlawful clearing
of trees by Crown lessees; activities involving danger to protected
plants, animals and fish; and danger to heritage sites and items of
the Queensland estate. In many cases, the offences carry
significant maximum penalties. It is considered that
whistleblower protection for private employees will facilitate the
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Whistleblowers Protection Bill 1994
reporting and investigation of such offences in the interests of
effective enforcement of legislation designed to protect the
Queensland environment.
Under sub clause 19(1)(c) protection is also given to any person
who discloses failure by mining companies to comply with
conditions of mining leases or mineral development licenses
(including requirements relating to rehabilitation of mine sites)
where non compliance constitutes a substantial and specific
danger to the environment. The references in Schedule 2 to
sections 6.15, 6.27 and 7.33 of the Mineral Resources Act 1989
are inserted for this purpose.
Protections for private sector employees who make disclosures
Any person including a private sector employee, who makes a disclosure
under clause 19 of the Bill will have the following protections under the
Whistleblowers Protection Act:
� immunity from civil and criminal proceedings (clauses 39-40);
� damages entitlement (clause 43); and
� a right to seek injunctive relief from the Industrial Relations
Commission or from the Supreme Court. The injunction may be
sought by the employee or by his or her union (clauses 47-54).
The unfair dismissal provisions of the Industrial Relations Act will also
apply to any person making a public interest disclosure under clause 19 of
the Bill (see amendments to Industrial Relations Act in Schedule 4).
The Bill also applies the above protections to anyone, including a private
sector employee, who makes a disclosure under clauses 20 and 26(3) to an
appropriate entity about an alleged unlawful reprisal taken against them or
anyone else for making a public interest disclosure.
Protections for complainants to the Health Rights Commission
Persons who are complainants to the Health Rights Commission will
also be afforded increased protections. These protections will be provided
by the Health Rights Commission Act (rather than the Whistleblowers
Protection Act) which will remain the primary statutory protection regime
for complainants to the Health Rights Commission.
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Whistleblowers Protection Bill 1994
The Health Rights Commission Act already provides complainants with
immunity from civil and criminal proceedings and contains an offence of
unlawful reprisal for victimising a complainant. The Bill (Schedule 4)
proposes amendments to the Act which increase the maximum penalty for
unlawful reprisal under the Health Rights Commission Act to $10,200 or 2
years imprisonment and provide a damages entitlement.
Further, the Bill amends the Industrial Relations Act to make it unlawful
to dismiss a complainant for making a complaint to the HRC.
3. Position of GOC employees under the legislation
The Bill treats company GOCs and statutory GOCs differently, reflecting
their different commercial and legal status.
Company GOCs
As company GOCs operate as fully commercial entities within a
competitive framework, they are treated under the Whistleblowers
Protection Act in the same manner as private sector companies. This is
achieved by excluding them from the definition of "public sector entity" in
Schedule 5, the effect of which is that protection is not given to an employee
of a company GOC who makes a disclosure except where the disclosure
can be made by anyone under the Bill i.e under clause 19 or 20.
Statutory GOCs
The legislation recognises that statutory GOCs are not fully akin to
private sector companies in that they are not incorporated as companies
under the Corporations Law. However, statutory GOCs are required to
operate in a commercially competitive framework and, should opportunities
be available to expose poor management practices by GOCs that are not
available within the private sector, the commercially competitive activities of
statutory GOCs could be damaged.
Acknowledging this, the Bill (clause 37) strikes a compromise position
on whistleblower protection for statutory GOC employees by allowing
employees to make internal disclosures to their GOC under clauses
15,16,17 or 18. That is, the legislation protects employees of statutory
GOCs who make disclosures to the GOC itself about official misconduct,
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Whistleblowers Protection Bill 1994
maladministration, waste of public funds or danger to public health and
safety, where the wrongdoing in question concerns the conduct of the GOC
or its staff. However, protection is not given to such staff who wish to
make disclosures to outside authorities except:
� where an employee discloses official misconduct by an officer of
the GOC to the CJC under clause 15 (the CJC has jurisdiction to
investigate official misconduct by officers of statutory GOCs but
not company GOCs); and
� where an employee makes a disclosure that anyone can make
under clause 19 or 20 to an appropriate entity.
4. Investigation of public interest disclosures
The Bill gives a right to public officers and other persons in specified
circumstances to make disclosures to public sector entities which have
requisite authority to take action on them. However, the legislation will not
create additional obligations on public sector entities to investigate
disclosures received. Considered as a whole, public sector agencies already
have numerous obligations, powers and discretions to investigate
allegations of wrongdoing made to them. These include substantial powers
available to the Ombudsman and the Queensland Police Service, as well as
to the range of independent review bodies established since the
commencement of the Fitzgerald Inquiry, including the Queensland Audit
Office, the Health Rights Commission, the Criminal Justice Commission
and a range of existing and proposed Parliamentary scrutiny committees.
Nevertheless, the Bill requires public sector entities to publicly account
for their handling of disclosures received. Clause 30 requires public sector
entities to report annually on the number of public interest disclosures
received and the number of disclosures substantiated following
investigation. As well, clause 32 imposes a duty on public sector entities to
give whistleblowers who have made disclosures to them reasonable
information about action taken on disclosures received.
5. Confidential counselling for whistleblowers
A confidential advisory service for whistleblowers has been established
under administrative arrangements. Advice will be provided by a
professional unit within the Public Sector Management Commission. This
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Whistleblowers Protection Bill 1994
unit will also provide advice to employees, management and other persons
on the application of ethical standards under the Public Sector Ethics Act
1994.
The CJC has established a specialist Whistleblowers Support Program to
assist persons who give evidence to, or otherwise assist, the CJC.
It is important to note that persons contemplating whistleblowing under
the Whistleblowers Protection Act and who seek counselling from the
PSMC, the CJC, a private legal adviser, or from any other source, would be
protected by clause 41 of the Bill dealing with unlawful reprisal. Clause 41
makes it unlawful to take a reprisal against a person in the belief that they
have made or may make a public interest disclosure. Therefore, if an
employer learns that an employee has sought counselling from the PSMC,
the CJC or from anyone and victimises them in belief that they are
contemplating making (or have made) a disclosure the employer would be
in breach of the Act.
Estimated Cost of Implementing the Legislation
It is difficult to estimate the long term financial impact of the scheme on
the public sector. There may be some administrative costs for entities of the
public sector in complying with the procedural requirements of the Act,
principally the requirement to keep basic records of disclosures received and
report to Parliament on the handling of disclosures.
Major investigating authorities such as the CJC, the Ombudsman, the
Health Rights Commission already have established procedures for
recording disclosures made to them.
The Public Sector Ethics Act 1994 will impose a requirement on various
public authorities to provide training for staff on fundamental ethical
obligations for public officials established by that Act. It would entail little
extra cost for these authorities to include a training component on the
Whistleblowers Protection Act.
The Public Sector Management Commission has budgeted $135,000 for
1994/95 to provide central training, assistance and advice to public sector
agencies and employees on the implications of the Public Sector Ethics Act
and the Whistleblowers Protection Act.
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Whistleblowers Protection Bill 1994
Consultation
In the course of their reviews, EARC and the Parliamentary Committee
for Electoral and Administrative Review consulted widely within the public
and private sector.
EARC received 48 submissions which are listed in Appendix C of its
Report. Organisations and persons making submissions included various
local authorities, Government departments, the Aboriginal and Torres Strait
Islander Commission, the Catholic Justice and Peace Commission, the
Criminal Justice Commission, the Auditor-General, the Institute of
Municipal Management, Victims of Corruption, Queensland Advocacy
Incorporated, Queensland Watchdog Committee, Australian Journalists
Association (Qld Branch), the Australian Press Council, Dr W De Maria,
Mr N Powell and Mr Kevin Lindeberg.
The Parliamentary Committee received 14 submissions which are listed
in Appendix B of its Report. Organisations and persons making
submissions included the Queensland State Service Union, the Queensland
Law Society, Mr R Osmak and Mr Kevin Lindeberg.
EARC also conducted a public seminar which included contributions
from Professor Paul Finn of the A.N.U., Mr Ian Temby QC of the
I.C.A.C., Sir Max Bingham QC Chair Criminal Justice Commission, Ms
Janine Walker of the Queensland State Service Union, Mr Jack Waterford
of the Canberra Times, Dr Glyn Davis Commissioner for Public Sector
Equity, Mr Gil Muir of the Queensland Confederation of Industry, and Mr
Peter Short President Queensland Law Society.
In considering EARC's recommendations, the Government consulted
with all departments, the Litigation Reform Commission, the Auditor-
General, the Health Rights Commission, the CJC and the Parliamentary
Commissioner for Administrative Investigations.
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Whistleblowers Protection Bill 1994
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 provides the Act's short title.
Clause 2 provides for the Act to commence on a date to be fixed by
proclamation made by the Governor in Council.
Clause 3 declares the Act's legislative objective.
Clause 4 indicates that certain terms used in the Bill are defined in the
Bill's Dictionary in Schedule 6 with certain definitions provided in section
form in Schedule 5.
Clause 5 indicates that the Act binds the State.
Clause 6 establishes that the legislation does not limit protections to
whistleblowers that might otherwise be available to them under another law.
For example the Bill does not alter the protections available to anyone under
sections 104 and 131 the Criminal Justice Act (inserted by the
Whistleblowers (Interim) Protection and Miscellaneous Amendments Act
1990) who assists the CJC.
Also, the Bill does not abolish or prejudice any existing protections
available in common law and statutory law that may be available to persons
who make disclosures to or through the media.
PART 2--GENERAL EXPLANATION OF SCHEME
AND CERTAIN DEFINITIONS
Clauses 7-12 provides an overview of the whistleblower protection
scheme established by Parts 3-6 of the Bill.
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Whistleblowers Protection Bill 1994
PART 3--DISCLOSURES THAT MAY BE MADE
Clause 13 indicates that purpose of Part 3 is to outline the types of
"whistleblower" disclosures that may be made under the legislation.
Clause 14 indicates that the types of public interest disclosures that may
be made are specified in clauses 15-20.
Clause 14 also clarifies the meaning of "information" for the purpose of
the disclosure categories.
Sub clause 14(2) establishes a test concerning the degree of accuracy
required of disclosures and the state of mind of the whistleblower. A
disclosure of information made under clauses 15-20 must be made on the
basis that the person making the disclosure honestly believes on reasonable
grounds that the information tends to show conduct referred to in the
relevant disclosure category. For example, a person purporting to make a
disclosure under clause 17 would be protected if it could be demonstrated
that he or she honestly believed on reasonable grounds that the information
disclosed tended to show negligent or improper management resulting in a
substantial waste of public funds.
The legislation does not require that the information disclosed be
objectively accurate but does require that it be objectively capable of giving
rise to a belief that the information provided evidence of a matter falling
within a public interest disclosure category.
This "reasonable" test, recommended by EARC, is intended to
discourage purely speculative allegations while also recognising that in
making a disclosure a whistleblower may not be aware of all facts relevant
to the allegation made and that the disclosure may be based on less than
perfect knowledge and information.
Sub clauses 14(3) and (4) establish that a public interest disclosure can be
made about past, present or future events.
Sub clause 14(5) provides that information contained in a disclosure need
not in a form that would be admissable in court (this is subject to clause
35(2)(b) which requires that information contained in disclosures made to a
court or tribunal in proceedings must be relevant and admissable).
Clause 15 allows a public officer to make disclosures to appropriate
public sector entities (including the CJC) about official misconduct as
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defined in the Bill's Dictionary (see note under Dictionary).
Clause 16 allows a public officer to make disclosures to appropriate
sector entities (including the Ombudsman) about maladministration
affecting someone's interests in a substantial and specific way.
Clause 17 allows public officers to make disclosures to appropriate
public sector entities concerning negligent or improper management
resulting or likely to result in a substantial waste of public funds. (Under
clause 26, an appropriate entity could include the Queensland Audit Office
and the Parliamentary Public Accounts Committee). It should be noted that:
� the alleged waste should be as a direct or indirect result of
negligent or improper management of public funds;
� the alleged waste would have to be "substantial". Should a person
claim protection under clause 17, it would be matter for the court
or the appeal authority to determine whether the disclosure tended
to show substantial waste of public funds in the context of the
information disclosed and the circumstances of the case;
� the alleged mismanagement may be on the part of a public
officer, public sector entity, or a private sector contractor
providing goods and services with public funds;
� disclosures under clause 17 are not protected if they concern mere
disagreements over the policy priority to be given to expenditures.
The disclosure category is intended to be confined to waste
caused by mismanagement of government programs not
disagreement over program objectives.
Clause 18 allows public officers to make disclosures to appropriate
public sector entities about anything which constitutes a substantial danger
to the health and safety of the public or to the environment.
This is a very broad category and is designed to facilitate disclosures by
public officers about any conduct within the public or private sector which
poses a substantial and specific danger to public health, safety or the
environment. The Bill's Dictionary establishes that danger to the "public"
includes danger to persons under lawful care or control (e.g. a prisoner
under the control of a prison officer).
Clause 18 is qualified by the requirement that the danger to public health
or safety or the environment be "substantial" and "specific". EARC
indicated that a qualification of this kind is warranted to make it clear that
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Whistleblowers Protection Bill 1994
this disclosure category is not intended to be a vehicle for general
ideological criticism of, for instance, the priorities determined by
government policy or managerial decisions in the area of environmental
protection. However, disclosures which showed that management practices
were posing a substantial and specific danger to health, safety or the
environment would be protected.
Clause 19 allows any person (including private sector employees) to
make a disclosure to an appropriate public sector entity concerning
prescribed environmental offences and danger to disabled persons. The
reasons for this disclosure category are discussed in the General Outline of
this Note.
Clause 20 allows any person (including private sector employees) to
disclose information to an appropriate public sector entity showing that an
unlawful reprisal has been taken against a person for making a public
interest disclosure under the Act.
Clause 21 clarifies that public interest disclosures can be made even if the
whistleblower is unable to identify a particular person which the disclosure
concerns.
Clause 22 ensures that protection is given to public interest disclosures
made under lawful compulsion, for example disclosures made in
information that is required to be given to the Criminal Justice Commission
under sections 37 and 94 of the Criminal Justice Act.
Clause 23 clarifies that public interest disclosures made after the Act's
commencement which concern wrongdoing that occurred before the Act
commenced are protected. However, the protections in the Bill do not apply
to disclosures made prior to the commencment of the Whistleblowers
Protection Act.
PART 4--DISCLOSURE PROCESS
Clause 24 outlines the purpose of Part 4.
Clause 25 provides that a public interest disclosure must be made to a
public sector entity that is an "appropriate entity" to receive the disclosure
under the terms of clause 26.
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Whistleblowers Protection Bill 1994
Clause 26 establishes when a public sector entity is an appropriate entity
to receive a disclosure. The meaning of "appropriate entity" is discussed in
the General Outline of this Note.
In Schedule 3, examples are given of appropriate entities that are able to
receive disclosures under clause 26 because the disclosure is about the
conduct of their staff, or the entity's conduct, or because the entity has a
power to investigate or remedy the complaint.
Sub clause 26(3) clarifies that a person who suffers a reprisal for making
a disclosure to a particular entity may inform the entity of the reprisal, even
if it does not have authority to investigate the conduct. Although the entity
may not be able to investigate the conduct, it would be able to refer the
complaint to an appropriate entity such as the CJC under clause 28.
Clause 27 establishes how disclosures can be made to appropriate
entities:
� a disclosure can be made in any way, including anonymously,
subject to any reasonable requirements for making disclosures
established by a particular entity;
� disclosures may always be made to the chief executive officer and
certain other officers of public sector entities specified in sub
clause 27(3) (see under General Outline above);
� the Act does not override other procedures required under law for
making a public interest disclosure. For example, the Act does
not affect the duty of principal officers of public sector entities to
report official misconduct to the Complaints Section of the CJC
under the requirements of s.37 of the Criminal Justice Act, or the
requirement of members of the Police Service to report
misconduct to the Complaints Section of the Commission under
section 7.2(2) (c) of the Police Service Administration Act;
� disclosures that are properly made under the Act to a public sector
entity are deemed to have been received by the entity. This
provision ensures that such disclosures are protected, even if the
entity refuses to receive the disclosure or has lawful grounds for
declining to take further action on the information received.
Clause 28 enables an appropriate entity to refer a public interest
disclosure to another entity if the disclosure concerns the conduct of the
other entity or that of its staff or is otherwise a matter that the entity can
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Whistleblowers Protection Bill 1994
investigate. A disclosure referred from one entity to another entity in this
way continues to be protected.
Sub clause 28(2) provides that the referring entity may still investigate a
disclosure (if it has authority to do so) notwithstanding that it is referred to
another entity.
Sub clauses 28(3)-(5) require appropriate entities not to refer a disclosure
to another appropriate entity if there is an unacceptable risk of a reprisal
being taken against the whistleblower or any other person. To determine
whether such a risk exists, the entity must, as far as practicable, consult with
the person who made the disclosure.
Clause 28 does not affect any other lawful procedure by which a public
interest disclosure must be referred. For example, the Act does not affect
the duty of principal officers of public sector entities to report official
misconduct to the CJC under the requirements of the Criminal Justice Act
and the requirement of members of the Police Service to report misconduct
to the CJC under the Police Service Administration Act.
Clause 29 requires public sector entities to keep proper records of
disclosures received. This is primarily to enable public sector entities to be
able to substantiate claims that particular disclosures had been made to them
for the purpose of applying the Act's protections. If proper records of
disclosures are not kept by entities, in certain cases difficulties could arise
for whistleblowers who wish to substantiate that they had made disclosures
(particularly if disclosures are not made in writing). Similarly, a public
sector entity may consider that a purported disclosure received by the entity
did not meet the requirements of the Act but may have difficulty
establishing this without proper records.
Records kept under clause 29 are subject to the confidentiality
requirements of clause 55.
Clause 30 requires public sector entities to include in their annual reports
statistical information on:
� the number of disclosures received during the year; and
� the number of disclosures substantially verified during the year.
Statutory GOCs are excluded from the annual reporting requirement as
public reporting of disclosures made to them by staff could put them in a
commercially disadvantageous position vis-a-vis private sector competitors.
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Whistleblowers Protection Bill 1994
Clause 31 requires the Minister responsible for administering the Act to
report annually on the operation of the Act. The purpose of this is to enable
the Minister to provide Parliament with an overview on how the Act is
being implemented across public sector entities and to raise any issues
concerning the Act's administration.
For this purpose, sub clause 31(3) requires public sector entities to
provide reasonable assistance to the Minister's department in preparing the
report.
Clause 32 imposes a duty on appropriate entities to provide to the
whistleblower (or to a public sector entity which referred a disclosure)
reasonable information about action taken on the disclosure and the results,
where such information is requested.
The entity is not required to give the discloser information if it would be
impractical to do so, or if the discloser has previously been given the
information, or if the request is vexatious. Also information must not be
disclosed to the discloser if it would prejudice the safety of anyone (an
example could be a Police or CJC officer operating undercover) or
necessary confidentiality about an informant.
Sub clause 32(5) exempts the CJC from the requirements of clause 32 as
s.33 of the Criminal Justice Act already requires the CJC to inform its
complainants of action taken on complaints made to the CJC that it has
investigated.
Clauses 33-35 provide special arrangements for the making of
disclosures about judges, magistrates and other judicial officers in
recognition of judicial independence and clarify when disclosures made in
court proceedings are public interest disclosures.
Clause 34 requires that any disclosure under clause 15 concerning
official misconduct by a judicial officer can only be made to the officer's
chief judicial officer (e.g. the Chief Justice in the case of a Supreme Court
judge) or to the CJC. Other disclosures under clauses 16-19 may only be
made to the chief judicial officer, however, the chief judicial officer may, at
his or her discretion, refer the disclosure to another appropriate entity.
Sub clause 34(5) enables a disclosure about a reprisal taken against a
person (for making a disclosure about a judicial officer) to be made to the
chief judicial officer, or to the CJC if the reprisal is official misconduct.
Clause 35 clarifies that where a disclosure that can be made to an
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Whistleblowers Protection Bill 1994
appropriate entity under the Bill is made to a court or tribunal in a
proceeding, the disclosure is a public interest disclosure and is therefore
protected by the Act, provided that the information disclosed is relevant to
the proceeding and is admissable.
Clauses 36-37 indicate how the Act applies to statutory GOCs and their
staff (see under General Outline above).
PART 5--PRIVILEGE, PROTECTION AND
COMPENSATION
Clause 38 sets out the purpose of Part 5 which establishes the protections
available to persons who make public interest disclosures. The protections
are discussed in the General Outline of this Note.
Clause 39 provides a person with immunity from civil or criminal action
for making a public interest disclosure, including absolute privilege in
defamation proceedings and immunity from prosecution for breach of any
secrecy obligations.
Clause 40 clarifies that if a person commits a criminal or other offence
(or does some other wrongdoing for which he or she is liable in law, or
under an administration process) and reveals their misconduct in a public
interest disclosure, the fact that they made the disclosure does not give them
immunity from prosecution or other lawful action that might be taken
against them in respect of their own misconduct.
Clause 41 establishes that it is unlawful for anyone to take a reprisal
against a person for making a public interest disclosure under the Act and
establishes a test for determining when unlawful reprisal has taken place.
This test applies to all proceedings under the Act where it is relevant to
prove that a reprisal has occurred (for example in proceedings for the
criminal offence of reprisal under clause 42). This test is discussed in the
General Outline of this Note.
Clause 42 establishes that a public officer who takes an unlawful reprisal
against anyone for making a disclosure to a public sector entity commits a
criminal offence. Sub clause 42(3) also imposes criminal responsibility on
any other person, whether or not a public officer, who assists, counsels or
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Whistleblowers Protection Bill 1994
procures the public officer to commit the offence.
Clause 43 enables any person who suffers reprisal for making a public
interest disclosure to sue for damages (see General Outline of this Note).
Clause 44 establishes a duty on all public sector entities to establish
reasonable procedures for protecting staff who make public interest
disclosures.
Clause 45 allows public officers with existing employee appeal rights to
make an appeal on the additional ground of reprisal for whistleblowing (see
General Outline of this Note).
Clause 46 in certain circumstances, enables public servants, departmental
employees and SES staff who are likely to be victimised for making, or
having made, a disclosure to be re-located (see General Outline of this
Note).
Clauses 47-54 allow injunctive relief to be sought from the Industrial
Relations Commission or from the Supreme Court for any person entitled
to make a public interest disclosure and who may suffer, or has suffered,
unlawful reprisal for doing so. The injunction may be sought by the:
� whistleblower; or
� his or her relevant union (if relief is being sought from the
Industrial Relations Commission); or
� the CJC if the whistleblower is a public officer and the reprisal
involves conduct that CJC can investigate.
See explanation under General Outline above.
PART 6--GENERAL
Clause 55 establishes an obligation on public sector entities to respect the
confidentiality of disclosures (see General Outline of this Note).
Clause 56 makes it an offence for the whistleblower to knowingly give
false or misleading information in a disclosure.
Clause 57 establishes that a public officer may be dismissed or otherwise
disciplined for misconduct for breaching sections 42,55 or 56.
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Whistleblowers Protection Bill 1994
For serious breaches, an officer could expect to face a double
penalty--dismissal or other disciplinary action plus prosecution for the
relevant offence. In less serious cases, disciplinary action may be sufficient.
A decision whether to prosecute an officer would be a matter for the
Director of Prosecutions taking into account the results of any investigation
conducted by the CJC.
Sub clause 57(2) is inserted to make it clear that, under the Criminal
Justice Act, the CJC may investigate a contravention of clauses 42, 55 or 56
involving official misconduct or misconduct by a member of the Police
Service.
Clauses 58-60 deal with how indictable offences under the Bill may be
dealt with summarily. These are interim provisions pending the introduction
of new procedures under the proposed new Criminal Code and Summary
Offences Act.
Clause 61 provides a regulation-making power under the Act.
Clause 62 provides for the Acts specified in Schedule 4 to be amended
as set out in the Schedule.
SCHEDULE 1--CHIEF EXECUTIVE OFFICERS
Identifies officers of certain public sector entities who are deemed to be
"chief executive officers" for the purpose of receiving disclosures. The
purpose of the Schedule is discussed in the General Outline of this Note
(see also note under Schedule 5).
SCHEDULE 2--OFFENCES ENDANGERING THE
ENVIRONMENT
Prescribes environmental offences for the purpose of disclosures made
under sub clauses 19(1)(b) or (c) of the Bill.
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SCHEDULE 3--EXAMPLES OF APPROPRIATE
ENTITIES IN PARTICULAR CIRCUMSTANCES
Provides examples of appropriate entities that may receive disclosures
under clause 26(1)(a) or (b) because the disclosure is about their own
conduct or that of their officers, or about a matter that the entity may
investigate or remedy.
SCHEDULE 4--AMENDMENTS
FREEDOM OF INFORMATION ACT 1992
Clause 1 ensures that confidential information relating to public interest
disclosures obtained by a public sector entity as defined by sub clause 55(1)
cannot be accessed by anyone under the Freedom of Information Act 1992
unless its disclosure is required for a compelling reason in the public
interest.
HEALTH RIGHTS COMMISSION ACT 1991
Clauses 1-8 increase protections provided under the Health Rights
Commission Act 1991 for complainants to the Health Rights Commission
(see under General Outline of this Note) and make certain other changes
consistent with the proposed Whistleblowers Protection Act.
INDUSTRIAL RELATIONS ACT 1990
Clauses 1-3 amend the Industrial Relations Act 1990 to make it unlawful
to dismiss any person for making a public interest disclosure under the
Whistleblowers Protection Act or for making a complaint to the Health
Rights Commission (see under General Outline of this Note).
PUBLIC SECTOR MANAGEMENT COMMISSION ACT 1990
Clauses 1-2 make amendments to the Public Sector Management
Commission Act 1990 consequential to clauses 45 and 46 dealing with
appeals.
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Whistleblowers Protection Bill 1994
SCHEDULE 5--SECTIONAL DEFINITIONS
Clause 1 in conjunction with Schedule 1 defines "chief executive officer"
of an appropriate entity for the purpose of sub clause 27(3) which
establishes that in addition to the other officers specified, a public interest
disclosure may be made to the chief executive officer of an appropriate
entity.
Schedule 1 identifies officers of certain public sector entities who are
deemed to be "chief executive officers" for the purpose of receiving
disclosures. This is to make it easier to identify who the chief executive
officer is in the case of some public sector entities where this might not be
readily apparent. It also allows certain other senior executives of particular
entities to be deemed as chief executive officers for the purpose of receiving
disclosures. For example, in the case of a Regional Health Authority,
Schedule 1 establishes that the chairperson of the authority, the regional
director and the chief executive of the Department of Health are all deemed
to be a chief executive officers for the purpose of receiving disclosures
relevant to the authority.
Clause 2 defines "public sector entity" for the purpose of:
� identifying the public authorities to which public interest
disclosures may be made under clauses 15-20 (provided the
authority is an appropriate entity to receive the disclosure under
clause 26);
� establishing an obligation on public sector entities to establish
reasonable procedures for protecting their staff who make public
interest disclosures to them (clause 44), to maintain records of
disclosures received (clause 29), and to report on action taken
(clause 30); and
� establishing protections under Part 5 for employees of public
sector entities ("public officers") who make disclosures.
SCHEDULE 6--DICTIONARY
Defines certain terms used in the Bill.
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� The State of Queensland 1994