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The rise of the Whistleblower – where you stand legally, as an employer or employee

Our firm has recently experienced an increase in clients who are concerned about the concept of ‘whistleblowing’ and who have approached us for advice regarding their Public Interest Disclosure status (PID status).

Relevantly, whistleblower legislation continues to remain at the forefront of state and federal legislative reform discussions.

Both employers and employees should ensure they understand how these protections operate and how they could potentially be impacted. For example, there is distinctive legislation for the public and private sectors in relation to the operation and obligations of whistleblower protections. Currently, there is a trend in legislative reform at state and federal levels to encourage whistleblowers to come forward, and to increase their legal protections if they do so.

What is a PID status? – Whistleblower protections in the public sector

PID status is a protection granted to a whistleblower who has come forward to report the internal wrongdoings within their workplace that could be considered to be of public interest.

In NSW, The Public Interest Disclosures Act 1994 (NSW) (PID Act) is the relevant legislation for public officials to follow when making disclosures. The PID Act provides that PID status can be only be granted to public officials reporting suspect internal wrongdoings of the public authority they work for.

PID status can be granted if the disclosure satisfies certain criteria. The public official disclosing the information must honestly believe on reasonable grounds that the information disclosed shows disclosable conduct, such as:

  • the disclosure of corrupt conduct; or

  • maladministration; or

  • serious and substantial waste; or

  • government information contravention; or

  • local government pecuniary interest contravention.

Furthermore, protocol must be adhered to in that the disclosure must be made to the principal officer of the public authority and the disclosure must adhere to the policies and procedures within the workplace of that public authority.

Comparatively, within the Commonwealth public sector, a public official can also be protected by PID status in the disclosure of suspected internal wrongdoing under the Public Interest Disclosure Act 2013 (Cth). A disclosure can be made by a public official who reasonably believes that the information disclosed tends to show disclosable conduct. These types of conduct can include:

  • illegal conduct; or

  • maladministration; or

  • corruption; or

  • abuse of public trust; or

  • perverting the course of justice; or

  • wastage of public money; or

  • deception in scientific research

  • unreasonably endangering the health and safety of the environment.

Comparing State and Commonwealth Procedures