Industrial Law Journal

ii

Vol. 30 No. 2
\Uiistiehlowing ai Work: Ou Vhai Principies Juie 2001
Shouid Legislation De iiased?
D(I1’i(I Leii’is

Reeent Legisialion

Receia Cases

Ennpean i)e eiopmenis

‘ Book Reviens

Published for the

Industrial Lav Society
Editor: Paul Davies by Oxford Universily Press
Eqllahit3: \ Nev (jeneraLion? Sandra Fredman

\‘ hisileblowing ai \\ork: Ou What David Lewis

Pru flCi1)1CS Shoiu 1(1 1 egislation Be
Bíuse(I?

B E( ‘FNT 1 E( ISI

RECEN’l’ CASES

1L 1 Do PE \N 1 )EVEI Á)PM EN’I’S

B(H)K REVIES

1SSN 0505 9552

Industrial Law lournal Volume 30
5. CONCW$ION
The EU assumption of responsibility for ensuring that Member States take
measures to combat discrimination on grounds of race, ethnic origin, religion,
age, disability and sexual orientation is a welcome if belated deveiopment.
However, a closer look at the provisions has revealed that the substantive
content has incorporated many of the limitations familiar to domestic law. In
particular, the method of categorisation of groups and the definitions of
discrimination remam problematic. Nevertlieless, there is an explicit invitation
within the directives for Member States to take the law further. One suei step
is being taken within UK legislation. The imposition of a positive duty within
UK race discrimination legislation represents a significant reinforcement of
existing attempts to create a new generation of equality laws. Although the
details of this duty remam disturbingiy vague, and its aims remam unformuiated,
this is certainly the direction of the future.
168
Whístieblowíng at Work: On What Principies
ShouId LegísIatíon Be Based?
DAVID LEWIS*
ABSTRACT
This article briefly expiains why whistleblowing is thought to be in the public interest in
a democratic society. It then compares and contrasts the Iegisiatíon in Australia, New
Zealand, South Africa and the United Kingdom with a view to establishing the principies
on which a model statute might be based. The author observes that, although the
measures under consideration provide varying degrees of protection for whistlebiowers,
they do iess to facilitate disclosures and the investigation of concerns about wrongdoing.
As welt as suggesting mechanisms for improving the protection afforded, the author
concludes by making proposais about how disclosures can be more effectively encour
aged and handied.
1. INTRODUCTION: WHAT IS WHISTLEBLOW1NG AND IS IT AWAYS IN THE PUBLIC INIERE$T?
A broad definition of whistieblowing would encompass disclosure by
ees and ex-employees of malpractice, as well as iliegai acts or omissions
at work. The UK charity Public Concern at Work (PCAW) offers help and
free legal advice to people who have ‘a concern that something seems to be
seriously wrong, iliegal or dangerous which threatens the public interest’.
Clearly the use of the expression ‘public interest’ is not accidental here as the
common law defence to actions for breach of confidence depends on the
disclosure being in the pubiic interest (see Part 2 beiow). Because there is no
universally accepted concept of whistleblowing, the Australian Senate Select
Committee on Public Interest Whistleblowing reached the conciusion that
‘what is important is not the definition of the term, but the definition of the
circumstances and conditions under which employees who disclose wrongdoing
should be entitled to protection from retaliation’.’ Not surprisingiy, this is the
approach that ias been adopted in the countries that we will be considering
below.
A conventional but simplistic view of whistleblowers is that they are trouble
*Middlesex University.
Australian Senate Select Committee on Publíc Interest Whistleblowing, In the Public Interest
1
(Canberra: AGPS, 1994) para 2.2.
industrial Law Jaurnal, Vai. 30; Na. 2, June 2001 169
©Industrial Law Socjety
lndustal Law Journal Volume 30
makers who deserve to be punished for disloyalty.2 An alternative management
approach is to treat them as dedicated individuais who provide a valuabie safety
net when other forms of regulation fail. Suei an approach recognises that
workers are often in the best position to know whether there is maipractice
within an organisation. More positiveiy, there is the ‘enhightened seif-interest’
approach which sees whistieblowers benefiting their employers by offering
solutions to work problems. Those who first contact their managers about
wrongdoing give them the chance to correct it before the matter escalates. Thus
whistleblowing can be viewed as part of a strategy to maintain and improve
quality. No doubt some empioyers would resist the idea of providing rewards
for ethical behaviour. However, viewed from this ‘quaiity’ perspective, it may
well be appropriate to offer financial incentives to those who disclose malprac
tice. Arguably, those who report concerns about maipractice are in an analogous
position to those who propose improvements in organisational efficiency
through a suggestion scheme. Indeed, it is not unusual for governments to
provide financial inducements to ‘blow the whistle’ in certain circumstances.3
As well as helping to expose financial scandals, like those which occurred at
BCCI, Barlow Ciowes and with the Maxwell pensions, in some situations
whistleblowing may be vital to preserve the health and safety of both the
workforce and the general public. For example, the investigation into the
Heratd of free Enterprise disaster in 1987 found that employees had aired their
concerns on five previous occasions about the ship saffing with its bow doors
open. A member of staff had even suggested fitting lights to the bridge to
indicate whether the doors were closed. The inquiry concluded: ‘If this sensible
suggestion had received the serious consideration it deserved this disaster
...
might well have been prevented.’4 The enquiry into the 198$ Piper Alpha ou
platform disaster found that: ‘workers did not want to put their continued
employment in jeopardy through raising a safety issue that might embarrass
management’.5 By way of contrast, Joy Cawthorne resigned as an instructor at
an outdoor activity centre in protest over its safety standards. Subsequently she
gave evidence against her former employer after four children died in a
canoeing accident in Lyme Bay. The managing director was convicted of
manslaughter and sentenced to three years’ imprisonment.
2 On the compatibility of whistleblowing with
notions of Ioyalty see: R. Larmer, ‘Whistleblowing
and Employee Loyalty’ (1992) Journat o! Business Ethics 125—8.
for example, see the false Claíms Amendments Act 1986 (USA) and the rewards offered by
the Inland Revenue and Customs and Excise in the UK.
Department of Transport, Court of Enquiry No 8074 (London: HMSO, 1987).
Public inquiry into the Piper Atpha Disaster CM 1310 (London: HMSO, 1990).
170
II June 2001 Whistleblowing at Work
2, lHE COMMON LAW BACKGROUND
Before engaging in a detaiied discussion about the types of concern that should
be reported and to whom, it is important to outline briefiy the common law
background which pervades most of the jurisdictions we are examining.6
Tie common law ias never given workers a general right to disciose
information about their employment. Even the revelation of non-confidential
material could be regarded as undermining the impiied duty of trust and give
rise to an action for breach of contract. In relation to confidential information
obtained in the course of employment, the common law again provides protec
tion against disclosure tirough both express and implied terms. The duty of
fidelity can be used to prevent disclosures while the employment subsists and
restrictive covenants can be used to inhibit the activities of former employees
after the reiaüonship has ceased. However, post-employment restraints will
only be enforceable if they can be shown to protect legitimate business interests
and are reasonable in all the circumstances. Where employees have allegedly
disclosed confidential information in breach of an express or implied term they
may seek to invoke a public interest defence to a legal action. Although the
common law allows tie public interest to be used as a shieid against an
injunction or damages, we will see that it is a weapon of uncertain strength.
Since the case of Initial Services v Putterill,7 the Court of Appeal ias aliowed
an exception to tie principie of non-disclosure of confidential information
wiere there is ‘any misconduct of suei a nature that it ought in the public
interest to be disclosed to otiers’. Here a sales manager was sued for breach of
confidence to stop um passing documents relating to unlawful price-fixing to a
nationai newspaper. However, the disclosure must be to someone who ias an
interest in receiving it and, in tiis case, Lord Denning was of the opinion that
the media had a sufflcient interest for tiese purposes. In Lion Laboratories v
Evans,8 two empioyees gave a national newspaper copies of internal documents
doubting tie reliability of tie breathalysers manufactured by their employer.
The company sought an injunction to prevent publication of the information on
tie grounds of breach of confidence. Tie action failed because tie empioyees
were found to iave ‘just cause or excuse’ for disclosure. However, the Court of
Appeai indicated that tie press migit not always be tie appropriate medium
for disclosure.
Subsequently, in Re a Company’s Application,9 the High Court refused to
6 On the common Iaw background generally see: Y. Cnpps, The Legal Implications ofDisctosure
in the Public Interesi (London: Sweet & Maxwell, 1994).
[1968] 1 QB 396.
8 [1985]
QB 526.
[1989] IRLR 477.
171
Industrial Law Journal Volume 30
grant an injunction preventing an employee in the financial services sector from
disclosing confidential information about his company to a regulatory body,
notwithstanding that the disclosure might be motivated by malice. Although
Scott J continued an injunction against general disclosure, he held that an
employee’s duty of confidence did not prevent them disclosing to regulatory
authorities matters which it was within the province of those autliorities to
investigate. Thus, apart from the situation where an employee reports a breach
of statutory duty to a relevant regulatory body, the common law lias not
provided reliable guidelines about what could be disclosed and to whom.
However, one enduring feature of tlie public interest defence at common law is
that it could be available even if a disclosure was tainted by malice. This may
still be relevant as the whistleblowing statutes in the UK, New Zealand and
South Africa usually deny protection to those who are shown to have acted in
bad faith.
3. WHAT TYPES OF WRONGDOING CAN BE DISCLO$ED AND BY WHOM?
Before we examine the coverage of particular Acts, it is important to remember
that whistleblowing legislation does not exist in a vacuum. Often it has been
sewn upon employment protection, freedom of information, data protection,
privacy and human rights statutes. There are also specific measures which
require people to disclose information’° and in many countries there are statutes
which deal with victimisation for raising equal opportunities and health and
safety issues.1’ However, perhaps because of Article 5(c) of ILO Convention
15$ on Termination of Employment,’2 attention lias frequently focussed on
outlawing dismissal rather than providing a general right not to suffer detri
ment.’3 It should also be noted that contempt laws offer some protection against
tlie intimidation of witnesses.14
‘° In the UK, for example, Regulation 14 of the Management of Heaith and Safety at Work
Reguiations 1999 requires employees to inform employers about serious and immediate dangers to
heaith and safety. In addiüon, the Criminal Justice Act 1993, s 93A imposes a duty on ‘ali persons’
to report money Iaundenng.
‘ In the UK, the Sex Discrimination Act 1975, s 4(1), the Race Relations Act 1976, s 2(1)and
the Disabiiity Discnmination Act 1995, s 55 deal with victimisation on the grounds of sex, race and
disability respectively. The Empioyment Rights Act 1996 (ERA 1996) ss 44 and 100 deal with
certain health and safety matters.
12 This makes it invalid for employment to be terminated if the reason (or one of the reasons)
was: ‘the fihing of a complaint, or the participatíon in proceedings, against an employer involving
aileged violation of laws or regulations or recourse to competent administrative authorities’.
13
For example, ERA 1996 s 104 offers some protection to those who are dismissed for asserting
that their employer has infringed certain statutory rights. However, those who are subjected to a
detnment short of dismissal have no specific statutory protection and may be forced to rely on the
172
1 June 2001 Whistleblowjng at Work
There are a number of policy issues that legislators need to consider in
relation to the types of information that can be disclosed and by whom. First,
should the legislation cover both the public and private sectors and should
specific categories be exempted, for example the security services or allegations
about wrongdoing occurrÍng abroad? In the author’s opinion, since there is no
clear demarcation between the public and private sectors and events have
demonstrated that corruption and maipractice occur in both, there is no case
for excluding the private sector from the scope of whistleblowing legislation.
Another critical issue is whether protection should be afforded to employees, a
broader category of worker or to members of the public generally. It is the
writer’s view that, since wrongdoing can occur in all walks of life, as a matter of
principle protection should be afforded to every person who is prepared to
report it. However, if future legislation focuses only on employment relation
ships, it is suggested that rights should be given broadly to all persons who work
for and receive remuneration from another person or the State. As regards
what can be disclosed, legislators must choose whether to adopt a broad or
narrow approach to the definition of reportable matters, determine whether
past, current and future wrongdoing should all be covered and decide whether
information must relate to tlie discloser’s employment.
Finally, there is the important question of whether whistleblowers need to
establish good faith as well as reasonable grounds for believing that their
information is true. In the author’s opinion, it would be extremely unfortunate
if the possibility of motive being examined deterred some important disclosures,
perhaps in relation to health and safety or serious crimes. Indeed, if workers
have reasonable grounds to believe that their information is true or likely to be
true, why should theír motive for disclosing be relevant? Arguably the public
interest is best served if malicious reporting is dealt with simply by denying
protection to those who have knowingly made a false allegation. It is acknowl
edged that this would allow people to disclose accurate information which they
would not have revealed but for a desire to inffict harm upon others. However,
this may well be an acceptable price to pay in order to achieve the objective of
encouraging the reporting of wrongdoing. As regards disclosures which the
investigating authorities believe to be frivolous, vexatious, trivial etc, tlie writer
believes that these can justify a refusal to act but not the removal of protection
from the discloser (if ali the other statutory requirements have been met).
The object of South Australian Whistleblower Protection Act 1993 (WPA
argument that the employer’s breach of the duty to maintain trust and confidence amounted to a
constructive dismissal.
14
On whistlebiowers as witnesses see: D. Lewis and M. Spencer in D. Lewis (ed), Whistlebtowing
at Work (London: Athlone, 2001) Cli 2. The Australian states have been particuiariy concemed to
protect people who contact anti-corruption bodies.
173
Industrial L.aw Journal Volume 30
1993) is to ‘facilitate the disclosure, in the public interest, of maladministration
and waste in the public sector and of corrupt and ilegal conduct generally.. ,‘15
It is important to note that this statute also applies outside the employment
field and that protection is therefore afforded to ‘persons’ rather than ‘employ
ees’ or ‘workers’. Apart from information that tends to show that a public
officer is guilty of maladministration, ‘public interest information’ also covers
information that any other person or body is or has been involved: ‘(i) in an
illegal activity; or (ii) in an irregular or unauthorised use of public money; or
(iii) in substantial mismanagement of public resources; or (iv) in conduct that
causes a substantial risk to public liealth or safety or to the environment’.16
However, immunity from liability is only afforded if the discloser believes on
reasonable grounds that the information is true or ‘is not in a position to form
a belief on reasonable grounds about the truth of the information but believes
on reasonable grounds that the information may be true and is of sufficient
significance to justify its disclosure so that its truth may be investigated’. In
addition, Section 10 WPA 1993 makes it an offence for a person to make a
disclosure of ‘false public interest information knowing it to be false or being
reckless about whether it is false’.
Similarly, the Australian Capital Territory’s Public Interest Disclosure Act
1994 (PIDA 1994) allows anyone to make a public interest disclosure to a body
authorised to receive it. However, the definitions of ‘public interest disclosure’
and ‘disclosable conduct’ make it clear that it is the performance of public
offlcials that is the focus of attention. Thus a ‘public interest disclosure’ is one
whicli the discloser believes on reasonable grounds tends to show: ‘(a) that
another person has engaged, is engaging or proposes to engage, in disclosable
conduct;’7 (b) public wastage; (c) that a person has engaged, is engaging or
proposes to engage, in an unlawful reprisal; or (d) that a public official has
engaged, is engaging or proposes to engage, in conduct that amounts to a
specific danger to the health and safety of the public’.’8 However, a ‘proper
authority’ may decline to act if it considers that the disclosure is trivial, frivolous
or vexatious; is misconceived or lacking in substance; that there is a more
appropriate method of dealing with the disclosure reasonably available; or that
the disclosure lias afready been dealt with adequately.’9 In addition, those wlio
knowingly or recklessly make a false or misleading statement to a proper
authority may be fined or imprisoned.2°
15 WPA 1993 s 3. Maladministration’ includes ‘impropriety or negligence’: WPA 1993 s 4.
16 WPA 1993 s 4. This section also identifies who are ‘public officers’ for these purposes.
‘ Defined in PIDA 1994 s 4.
‘ PIDA 1994 s3.
‘ PIDA 1994 s 17(1) (as amended by the Public Interest Disclosure (Amendment) Act 1997).
20 PIDA 1994 s 34.
174
June 2001 Whistleblowing at Work
The New South Wales Protected Disclosures Act 1994 (PDA 1994) is
concerned solely with information that shows or tends to sliow corruption,
maladministration and serious and substantial waste in the public sector2’ and
protection is only afforded to ‘public officials’.22 A disclosure wliich ‘principally
involves questioning the merits of government policy’ will not be protected nor
will a disclosure which is made ‘solely or substantially witli the motive of
avoiding dismissal or otlier disciplinary action’.23 The authorities may decline to
investigate if they are of the opinion that the disclosure was made frivolously or
vexatiously and in these circumstances PDA 1994 affords no protection.24 In
addition, and it is an offence to ‘wilfully make any false statement, or mislead
or attempt to mislead’ in making a disc1osure.
Queensland’s Whistleblower Protection Act 1994 (WPA 1994) entities ‘public
officers’26 to disclose ‘official misconduct’ or ‘maladministration’27 that specific
ally, substantially and adversely affects someone’s interests. Such officers can
disclose negligent or improper management involving a substantial waste of
‘public funds’28 as well as a substantial and specific danger to ‘public health or
safety’ or the ‘environment’.29 In addition, anybody can disclose a substantial
and specific danger to the environment or to the healtli and safety of a person
with a disability or that a reprisal lias been taken against a person for making a
public interest disclosure.3° Disclosers must honestly believe on reasonable
grounds that they have information that tends to show the conduct or danger
alleged.31 It is also an indictable offence to intentionally give information to an
appropriate autliority that is false or misleading in a material particular.32
Section 6 of New Zealand’s Protected Disclosures Act 2000 (PDA 2000)
enables an employee of an organisation to disclose information in the manner
prescribed if the information is about serious wrongdoing in or by that organisa
tion and tlie employee believes on reasonable grounds tliat the information is
true or likely to be true. Section 3 PDA 2000 defines ‘serious wrongdoing’ as
including any of the following: ‘(a) an unlawful, corrupt or irregular use of
21 PIDA 1994 s 3(1).
22 lhe definition covers the police and local government elected representatives: PDA 1994 s 4
as amended by the Protected Disclosure Amendment (Police) Act 1998.
23 PDA
1994 ss 17 and 1$ respectively.
24
PDA 1994 s 16.
2$ PDA 1994
s 28.
26 These
are widely defined in WPA 1994 Schedule 2.
27 ‘Official
misconduct’ is defined in the Criminal Justice Act 1989 and ‘maladministration’ is
defined in WPA 1994 Schedule 6.
28
Defined in WPA 1994 Schedule 6.
29 Also
defined in WPA 1994 Schedule 6.
30
WPA 1994 ss 19 and 20.
31 WPA 1994
s 14.
32 WPA 1994
s 54.
175
Industrial Law Journal Volume 30
public funds or public resources; or (b) an act, omission or course of conduct
that constitutes a serious risk to public health or public safety or the environ
ment; or (e) an act, omission or course of conduct that constitutes a serious risk
to the maintenance of law, including the prevention, investigation and detection
of offences and the right to a fair trial; or (d) an act, omission or course of
conduct that constitutes an offence; or (e) an act, omission or course of conduct
by a public official that is oppressive, improperly discriminatory or grossly
negligent, or that constitutes gross mismanagement’. Section 20 PDA 2000
provides that disclosers of information must not act in bad faith or make
allegations which they know to be false.
In the UK, Section 43B(1) of the Employment Rights Act 1996 (ERA 1996)
defines a ‘qualifying disclosure’ as one which a worker reasonably believes
tends to show a matter falling into one or more of the following: (i) a criminal
offence; (ii) a failure to comply with any legal obligation; (iii) a miscarriage of
justice; (iv) danger to the health and safety of any individual(ie not necessarily
a worker); (v) damage to the environment; (vi) the deliberate concealment of
information tending to show any of the matters listed above. Apart from
disclosures made to legal advisers, the UK provisions only apply to whistleblow
ers who act in good faith. The coverage of South Africa’s Protected Disclosures
Act 2000 is virtually identical. The major difference being that an employee
who makes a disclosure must ensure that it relates to the conduct of an
employer or an employee of that employer.
We now turn to specific exclusions from the scope of protective legislation.
The UK legislation applies to Crown employment (but not the security services)
in the same way as it applies to other workers, save where a certificate of
exemption has been issued on grounds of national security.34 In addition,
Section 200(1) ERA 1996 was amended to ensure that those who have a
contract of employment in the police service cannot make a protected disclo
sure. Workers are allowed to make disclosures about a matter which occurs
outside the UK or which is not covered by UK law. However, a disclosure will
not be protected if the person ‘commits an offence by making it’. Similar
provisions apply to employees in South Africa except for the fact that no
mention is made about the police or national security. In both countries
disclosures made to a legal adviser are protected but such advisers are not
authorised to reveal information protected by professional privilege.36
By way of contrast, New Zealand does not appear to protect disclosures
about matters which occur outside its territory or legal jurisdiction. Additionally,
The PIDA 1998 inserted a new Part IVA into ERA 1996.
ERA 1996 ss 191(2) and 193.
ERA 1996 s 433(3).
36
ERA 1996 s 43D and PDA 2000 s 5.
176
1 June 2001 Whistleblowing at Work
instead of excluding the police and security services altogether, PDA 2000
contains special rules for the protection of information about international
relations, intelligence and security. It is also interesting that PDA 2000 does not
expressly deal with disclosures to legal advisers. Nevertheless, Section 22 states
that a disclosure of information covered by legal professional privilege is not
protected. Because of the federal system in Australia, the states need not deal
with security issues. As we have observed, public officials are the main benefi
ciaries of whistleblowing legislation and are entitied to make disclosures in all
states. No specific mention is made of disclosures to or by legal advisers in
South Australia and New South Wales, although the Australian Capital Terri
tory prevents disclosures which would otherwise be the subject of professional
privilege. In Queensland, disclosures can only be made to public entities.
A number of general points can be made about the types of information that
can be disclosed and by whom. first, although it is wideiy accepted that ‘the
public interest may be adversely affected by private interests’,37 it is an outstand
ing feature of the Australian statutes that, by and large, they fail to cover
information relating to the private sector. Similarly, in New Zealand it is not at
ali clear to what extent financial irregularities in the private sector will be
covered. Ou the issue of who can disclose, we have seen that three of the four
Australian states that have whistleblowing legislation normally only offer pro
tection to public officers. The definition of ‘employee’ in the South African
statute specifically excludes independent contractors38 but New Zealand has
adopted a more wide-ranging approach.39 In the UK the definition of ‘worker’
in Section 230 ERA 1996 is extended for these purposes to include certain
agency workers; certain workers who would not otherwise be covered because
they are not obliged to carry out ali of their duties personally; NHS practitioners
such as GPs, certain dentists, pharmacists and opticians; and certain trainees.4°
As regards the type of information that can be disclosed, it is clear that the
UK and South African statutes are the most all-embracing. Indeed, they appear
to cover most of the matters covered by the other jurisdictions. One possible
exception would bê where there was serious wrongdoing which did not amount
to a failure to comply with a legal obligation. Another problem area might bê
See Australian Seiiate Select Committee on Public Interest Whistleblowing, In lhe Pubtic
Interest (Canberra: AGPS, 1994) para 8.5.
38 PDA 2000 s 1.
PDA 2000 s 3 states that ‘employee, in relation to ao organisation, includes: (a) a former
employee; (b) a homeworker within the meaning of the Employment Relations Act 2000 5 5; (c) a
person seconded to the organisation; (d) an individual who is engaged or contracted under a
contract for services to do work for the organisation; (e) a person concerned in the management of
the organisation; (f) in relatíon to the New Zealand Defence force, a member of the Armed
Forces’.
40
ERA 1996 ss 230(3) and 43K(1) ensure that former workers are covered.
177
Industrial Law lournal Volume 30
the reporting of reprisais. Victimisation by employers and fellow workers would
potentially amount to a breach of a legal obligation to which they are subject.
However, outsiders who infiict detrimental treatment on a whistleblower may
not be in breach of a legal duty and employers can only be liable for failing to
prevent reprisais of which they were aware or should have been aware.
It should also be noted that under the legislation in the UK, South Africa,
Queensland and the Australian Capital Territory, the matter disclosed may
have occurred in the past, be currently occurring or likely to occur. The
remaining statutes do not appear to cover concerns about future wrongdoing.
Additionally, whereas the UK and South African statutes do not require any
link between the matter disclosed and the worker’s employment, in New
Zealand the ‘serious wrongdoing’ must be ‘in or by that organisation’. In
Australia, while the legislation in three out of the four states largely focuses on
wrongdoing in the public sector, there are no requirements that a concern must
relate to the particular discloser’s employment.
A common feature of these jurisdictions is that, broadly speaking, disclosers
must believe on reasonable grounds that the information is true or tends to
show the conduct alleged. However, additional safeguards have been imposed.
In Australia these take the form of making it an offence to knowingly or
recklessly give false or misleading statements. By way of contrast, in New
Zealand an employee who knowingly makes a false allegation or acts in bad
faith merely loses protection under PDA 2000. In the UK and South Africa
attention focuses on the issue of disclosures being made in good faith.41 It is not
clear in these statutes whether it is the employer who has to prove bad faith or
the worker to establish good faith.42 An additional problem in the UK and
South Africa is the requirement that, in certain circumstances, whistleblowers
must not be acting for personal gain.43 It is extremely difflcult to know exactly
what is envisaged here. For example, is personal gain different to financial
gain?w
“ Apart from disclosures to legal advisers under ERA 1996 s 43D and PDA 2000 s 5.
42 Since there is a potential infnngement of freedom of expression, it is arguable that the UK
Human Rights Act 199$ allows employment tribunais to place the burden on empioyers. Articie
10(1) of the European Convention on Human Rights states that: ‘Everyone has the right to freedom
of expression. This nght shall include freedom to hold opiníons and to receive and impart
information and ideas without interference by pubiic authonty and regardiess of frontiers.’ Articie
10(2) refers to the necessÏty for restnctions on this freedom in order to prevent the disclosure of
confidential information.
See ERA 1996 ss 43G and 43H and PDA 2000 s 9.
‘‘ According to ERA 1996 s 43L(2), in determining whether a person has acted for personai gain,
a reward payable under any enactment wiII be disregarded.
178
1 June 2001 Whistleblowing at Work
4. HOW $HOULD DISCLO$URE$ BE MADE AND TO WHOM?
Although in some situations it might be difficult to decide whether a particular
incident amounts to interna! or external whistleblowing, there are good reasons
for drawing a distinction.45 Internal reporting offers advantages to employers,
workers and the general public. The employer is given the opportunity to deal
with a concern without outside pressure or publicity. From the worker’s point
of view, once a matter has been raised externally, they may be seen as an
adversary and more likely to suffer retaliation.46 Hopefully, the public gain from
the speedy rectification of wrongdoing without the need for investigation or
expenditure by government agencies. Thus a major policy issue for legislators is
whether a statutory duty should be imposed on employers to establish whistle
blowing procedures.
Another question is whether time limits should be imposed for taking action
once a disclosure has been made or can this be left to a test of reasonableness?
A!though fixed periods have the disadvantage of being infiexible, they have the
attraction of introducing a degree of certainty. Finally, issues arise as to whether
acceptable recipients of externa! disclosures should be designated and whether
such recipients should have a legal obligation to refer information to a more
appropriate person in certain circumstances.
For disclosures to be protected in New South Wales, they must be made by a
‘public offlcial’ to: an investigating authority;47 or the head of a public authority;
or another offlcer of the investigating authority or public authority to which the
discloser belongs in accordance with the established reporting procedures within
the organisation;48 or to a member of Parliament or a journalist. Public officials
and the investigating authorities have a discretion to refer a disclosure to
another public offlcial, investigating or public authority ‘considered to be
appropriate in the circumstances’.49 However, an investigating authoríty must
refer such a disclosure if it is not authorised to investigate the matter and it is
of the opinion that another authority or official may appropriately deal with the
matter.5° Disclosures to an MP or journalist will only be protected if ‘substan
tially the same disclosure’ has already been made to an investigating or public
Some wnters do not accept that internal disclosures amount to whistieblowing: see P. Jubb,
‘Whistlebiowing: A Restrictive Definition and Interpretation’ (1999) Journal of Business Ethics
77—94,
See M. Micelli and J. Mear, Btowing the Whistle (New York: Lexington, 1992).
The investigating authorities are the Independent Commission against Corruption, the
Ombudsman and the Auditor-General.
The PDA 1994 provides no details about what should be included in an ínternal procedure nor
does it oblige organísations to estabtish such a procedure.
PDA 1994 s 25(1) and 26(1).
°° PDA 1994 s 25(2).
179
Industal Law Journal Volume 30
authority or public official. In addition, the public official must liave reasonable
grounds for believing that the disclosure was ‘substantially true’, the disclosure
must be ‘substantially true’ and the investigating authority etc to whom the
matter was referred: must have decided not to investigate the matter or not
have completed the investigation within six months; or must have investigated
the matter but not recommended any action be taken; or must have failed to
notify the person making the disclosure within six months of whether or not the
matter is to be investigated.5’
In Queensland, a public interest disclosure must be made to an appropriate
public sector entity.52 A recipient body may refer a disclosure to another entity
but cannot do so without considering whether there is an unacceptable risk tliat
a reprisa) would be taken. If practicable the person who made the disclosure
must be consulted.53 Although a public interest disclosure can be made in any
way, including anonymously, if an appropriate entity has establislied a reason
able procedure it must be used. However, disclosures can always be made to: a
person who manages the discloser (if the latter is an officer of that entity); an
offlcer of the entity who lias tlie task of receiving or taking action on the type
of information being disclosed; its chief executive officer or a member of its
governing body.54
The Australian Capital Territory allows anyone to make a public interest
disclosure to a body authorised to receive it (a ‘proper autliority’),55 which
expressly includes tliat authority’s chief executive officer and its governing body.
The Ombudsman or Auditor-General may act on the disclosure if s/he considers
tliat ‘there is no other proper authority that can adequately or properly act on
the disclosure; or that any proper authority that should have acted on the
disclosure has failed, or been unable for any reason, to adequately act on the
disclosure’.56 A proper authority must investigate a public interest disclosure if
it relates to its own conduct or the conduct of one of its officers; a matter that
tlie authority lias the power to investigate or the conduct of a person performing
services for the authority. If a proper authority receives a disclosure which it is
not empowered to deal witli, it must refer it to a government agency whicli is
so empowered. However, a disclosure must not be referred to another govern
ment agency, other tlian the Ombudsman if, in tlie authority’s opinion, tliere is
a serious risk that a person would engage in an unlawful reprisal or the proper
1 PDA 1994 s 19.
‘Public sector entity is defined in WPA 1994 Schedule 5.
WPA 1994 s 28.
WPA 1994 s 27.
Government agencies, the Ombudsman and the Auditor-General are proper authorities:
PIDA 1994 ss 9 and 13 (as amended by the Public Interest Disclosure (Amendment) Act 1997).
56 PIDA 1994 s 14 (as amended).
180
June 2001 Whistleblowing at Work
investigation of the disclosure would be prejudiced as a result. Government
agencies are required to establish and maintain procedures to facilitate the
making of public interest disclosures and to deal with tliem. Tlie procedures
must be set out in a document and deal witli tlie following: ‘(a) making public
interest disclosures; (b) assisting and providing information to a person who
makes a public interest disclosure; (c) protecting a person who makes a public
interest disclosure from unlawful reprisals ;(d) acting on public interest
disclosures’57
In South Australia a disclosure will only be protected if it is made to someone
to whom it is ‘in the circumstances of the case, reasonable and appropriate to
make the disclosure’. A Minister of tlie Crown and range of other bodies are
designated as appropriate authorities but these are not the only ones tliat can
be considered appropriate recipients of information.58 Section 6 WPA 1993
obliges public interest disclosers to assist with any investigation of the matters
to which the information relates unless tlie investigation is being conducted by
the subject of the complaint. A person wlio has no reasonable excuse for failing
to fulfil this requirement forfeits the protection of the Act.
In New Zealand, Section 7 PDA 2000 states tliat, subject to Sections 12 to
;4,59 employees ‘must disclose information in the manner provided by internal
procedures establislied by and published in the organisation for receiving
...
and dealing with information about serious wrongdoing’. However, Section $
PDA 2000 provides that disclosure may be made to tlie liead or a deputy head
of the organisation if: (a) the organisation lias no internal procedures estab
lished and published for dealing with information about serious wrongdoing; or
(b) the employee making the disclosure believes on reasonable grounds that the
person to whom the wrongdoing sliould be reported internally may be involved
in the serious wrongdoing or is, by reason of any relationship with a person
who may be involved iii the serious wrongdoing, not a person to wliom it is
appropriate to make the disciosure. In addition, Section 11(1) PDA 2000
requires every public sector organisation6° to ‘have in operation appropriate
internal procedures for receiving and dealing with information about serious
wrongdoing in or by that organisation’. Such procedures must comply with the
principies of natural justice and identify the persons in the organisation to
whom a disclosure may be made. According to Section 11(3) PDA 2000,
‘information about the existence of the internal procedures, and adequate
PIDA 1994s 10.
Where a disclosure is made in relation to fraud or corruption, the recipient is required to pass
the information as soon as possible to the Police Complaints Authonty or the anti-corruption
branch of the police force: WPA 1993 s 5.
These deal with inteiligence, security and international relations.
60
Defined in PDA 2000 s 3.
181
lndustal Law Journal Volume 30
information on how to use the procedures, must be published widely in the
organisation and rnust be repubiished at regular intervais’.
In relation to disclosures made outside the employing organisation, Section 9
PDA 2000 provides that a disclosure can be made to an ‘appropriate authority’
if the employee believes on reasonable grounds that: (a) the head of the
organisation is or may be involved iii the serious wrongdoing; or (b) immediate
reference to an appropriate authority is justified by reason of the urgency of the
matter or some other exceptional circumstances; or (e) there has been no action
or recommended action on the rnatter within 20 working days of the disclosure
being made. ‘Without limiting the meaning of that term’, an appropriate
authority includes the head of every public sector organisation and a private
sector body which comprises members of a particular profession which has
power to discipline its members. Section 3 PDA 2000 specifically excludes
Ministers of the Crown and members of Parliament.
Section 10(1)PDA 2000 provides that a disclosure can be made to a Minister
of the Crown or an Ornbudsrnan if the employee: (a) has already made
substantially the sarne disclosure in accordance with the previous sections; and
(b) believes on reasonabie grounds that the person to whom the disclosure was
made: (i) has decided not to investigate the matter; or (ii) has not made progress
with the investigation within a reasonable time; or (iii) has investigated the
matter but has not taken any action nor recommended the taking of action in
respect of the matter; and (c) continues to believe on reasonable grounds that
the information is true or likely to be true. According to Section 10(2) PDA
2000, a disclosure to an Ombudsman under this section can be made only if it is
in respect of a public sector organisation and it has not already been made to
an Ombudsman under Section 9. Section 23(2) PDA 2000 provides that
Ombudsmen are not bound to investigate a disclosure made under this Act.
In the UK, Section 43C(1) ERA 1996 protects workers who make qualifying
disclosures in good faith to their employer or to another person who is
responsible for the matter disclosed. According to Section 43C(2) ERA 1996,
workers are to be treated as having made disclosures to their employer if they
foilow a procedure which the employer has authorised, even if the disclosure is
actually made to someone else (for example, an independent person or organ
isation). Similarly, in South Africa, Section 6(1) PDA 2000 protects a disclosure
‘which is made in good faith: (a) and substantially in accordance with any
procedure prescribed, or authorised by the employee’s employer for reporting
or otherwise remedying the impropriety concerned; or (b) to the employer of
the employee, where there is no procedure as contemplated in paragraph (a)’.6’
In the UK, Section 43E ERA 1996 protects workers in Government
61
PDA 2000 s 6(2) mirrors ERA 1996 s 43C(2).
182
June 2001 Whistleblowing at Work
appointed organisations if they make a disclosure in good faith to a Minister of
the Crown rather than their legal employer. Sirnilarly, South Africa protects
disclosures to a member of Cabinet or of the Executive Council of a province if
the employee’s employer is appointed by such a body or is ‘an organ of state
falling within the area of responsibility of the member concerned’.62 Section
43F(1) ERA 1996 protects workers who make disciosures in good faith to a
person (or class of persons) prescribed for the purpose by the Secretary of
State. However, the worker must reasonably believe that (i) the matter falis
within the remit of the prescribed person, and ii) that the information and any
allegation contained in it are substantially true.6’ In South Africa, concerns rnay
be reported to prescribed persons in identical circurnstances.M Additionally, if
such persons are of the opinion that the rnatter would be more appropriately
dealt with by another prescribed person, they must ‘render such assistance to
the employee as is necessary to enabie that employee to comply with this
section’.65
In the UK, Section 43G ERA 1996 enables workers to make a protected
disclosure in other limited circumstances. In order to be protected workers
must: (i) act in good faith; (ii) reasonably believe that the information and any
ailegation contained in it are substantially true; (iii) not act for personal gain;
(iv) have already disclosed substantially the sarne information to the employer
or to a person prescribed under Section 43F ERA 1996, unless they reasonably
beiieve that they wouid be subject to a detriment for doing so, or that the
employer would conceal or destroy the evidence if alerted; and (v) act reason
ably. For these purposes regard shall be had, in particular, to: (a) the identity
of the person to whom the disclosure is made; (b) the seriousness of the matter;
(e) whether there is a continuing faiiure or one likely to recur; (d) whether the
disclosure is made ín breach of a duty of confidentiality owed by the employer
to another person; (e) any action the employer (or prescribed person) has taken
or might have been expected to take in relation to a previous disclosure; (f)
whether the worker has complied with any procedure authorised by the
employer for making a disclosure. Section 43H ERA 1996 deals with disclosures
about exceptionally serious wrongdoing. Again, in order to be protected: (i)
workers must act in good faith; (ii) they rnust reasonably believe that the
information and any aliegation contained in it are substantially true; (iii) they
62 PDA 2000 s 7.
63 The Schedule to the Public Interest Disclosure (Prescnbed Persons) Order 1999 SI 1549
specifies the persons prescribed and the description of matters in respect of which they are
prescribed.
In addítíon, specific mention is made of disclosures to the Public Protector or Auditor-General:
PDA 2000 s 8(1).
65 PDA 2000 s 8(2).
183
Industrial l.aw Journal Volume 30
must not act for personai gain; (iv) the relevant failure must be of an exception
ally serious nature; and (v) in ali the circumstances it rnust be reasonable to
make the disclosure. In this respect particular regard will be had to the identity
of the person to whom the disciosure is made.
Although the South African statute largely mirrors these provisions, it does
not distinguish in the sarne way between disclosures of an exceptionally serious
failure and other cases. In dealing with ‘general protected disclosure’, Section 9
PDA 2000 simply lists impropriety of an exceptionally serious nature as one of
the conditions that rnight justify external reporting. However, it is worth noting
that in assessing the reasonabieness of disclosure ‘the public interest’ is specific
ally mentioned.
We can see from the above that no country imposes a general duty on
employers to establish whistlebiowing procedures. Indeed, only New Zealand
and the Australian Capital Territory oblige government agencies and public
sector organisations respectively to establisli procedures for receiving and
dealing with disclosures. Nevertheless, there is some encouragement for individ
uals to use such procedures that are provided. For example, Queensland states
that if a public entity lias establislied a reasonable procedure it should be used.
Similarly, employees in New Zealand must norrnally disclose information in the
manner provided by an internal procedure. Only indirect pressure is exerted in
the UK and South Africa, where disclosures are more Iikely to be protected if
internal procedures have been followed.
As regards the possibility of referring disclosures to a more appropriate
recipient, the legislation in New Zealand, New South Waies and Queensland all
give the relevant authorities the discretion to do so. In the Australian Capital
Territory, a proper authority rnust refer a disclosure which it is not ernpowered
to deal with but, as in Queensland, it must have regard to the risk that a reprisal
would be taken. It should be noted that, althougli the UK and South Africa
permit concerns to be reported to prescribed persons in identical circurnstances,
oniy the latter requires assistance to be given to employees to enable them to
direct their information to an appropriate recipient. In relation to disclosures to
MP’s and journalists, this appears to be possible in only four out of the seven
jurisdictions under consideration.66
Whule New South Waies and New Zealand specify time limits for taking
action, the other countries simply leave this issue open to a test of reasonable
ness. There are also bound to be disagreements over the interpretation of such
nebulous expressions as ‘substantially true’, ‘substantially the same disciosure’
and ‘exceptionally serious failure’. Clearly, there is a danger that statutory
protection will be lost if adjudicators take a different view to that of the
The exceptions being Queensland, the Australian Capital Territory and New Zealand.
184
1 June 2001 Whistleblowing at Work
whistleblower. It is to be hoped that the right to freedom of expression will
enable disclosers to be given the benefit of the doubt where ‘substantiality’ and
‘exceptionality’ are in issue.
5. ADVICE, SUPPORT AND FEEDBACK FOR WHI$TLEBLOWER$
In Part 3 above we dealt with disclosures to and by legal advisers. In this part,
some of the policy issues are fairly straightforward. for example, to what extent
should legislation provide for whistleblowers (and potential whistleblowers) to
receive advice and assistance? Shouid recipients of information be obliged to
provide feedback about any action taken as a result of a disclosure? Should
whistleblowers be given blanket irnmunity from legal actions arising from their
disclosures? Perhaps more contentious are the methods of ensuring that confi
dentiality is maintained and the question of whether anonymous reporting
should be protected by statute. Many would argue that the anonymous reporting
of wrongdoing is better than no reporting at ali. Nevertheless, the practical
difficulties of investigating concerns that been reported anonymously and of
concealing a discloser’s identity tliroughout an inquiry have to be acknowl
edged. Thus it is hard to argue tliat legislators should not insist on whistlebiow
ers revealing their identity. However, because no statute can guarantee that
disclosers will not be victimised, the author believes that legislation should
provide for confidentiality to be maintained unless specified conditions justifying
the revelation of a whistleblower’s identity are met.67
In only three of the statutes under consideration is there provision for
whistleblowers to receive advice or assistance.68 In New Zeaiand, where an
empioyee notifies the Office of the Ombudsmen that he or she lias disclosed, or
is considering the disclosure of, inforrnation under PDA 2000, Section 15
requires an Ombudsman to provide information and guidance on a range of
rnatters reiating to how the legislation works. Where an allegation of unlawfui
reprisal is made in the Australian Capital Territory, the recipient authority must
supply the compiainant with information about the protection and remedies
avaiiabie under PIDA 1994.69 By way of contrast, in South Africa the relevant
Minister must issue ‘practical guidelines which explain the provisions of this Act
67
for example, where (a) the discloser consents; or (b) it is necessary to ensure that a concern is
investigated; or (c) it is necessary to prevent a serious risk to public health and safety.
68
It is worth mentioning that the Criminal Justice Commission (CJC) in Queensland has a
Whistleblower Support Programme. According to a leaflet issued by the CJC in 1995, this provides
professional counselling, advice and referrat by a qualified psychologist for people experiencing
difficulties as a result of becoming CJC whistleblowers. Advice is also available for those considering
whether or not they should become whistleblowers’.
69
NDA 1994 s 26.
185
Industrial Law lournal VoIume3O
and ali procedures which are available in terms of any iaw to employees who
wish to report or otherwise remedy an impropriety’. Ali organs of state must
give every empioyee a copy of these guidelines or must take ‘reasonable steps
to bring the reievant notice to the attention of every empioyee’.7°
Only in Austraiia are there statutory provisions in relation to the giving of
feedback. In New South Waies, an authority to whom a disclosure is made or
referred must, within six months, notify the person who made the disciosure of
the action taken or proposed to be taken.7’ In South Australia, if a protected
disciosure is made to a pubiic offlcial that person must, ‘wherever practicable
and in accordance with the iaw, notify the informant of the outcome of the
investigation’.72 It should also be noted that this legísiation is unique in imposing
an obligation on disclosers to assist with any investigation of the matters to
which the information relates.73 A whistlebiower who has no reasonable excuse
for failing to fulfil this requirement forfeits the protection of WPA 1993. In
Queensland, if asked by a person making a public interest disclosure, an
appropriate entity must give that person ‘reasonable information about action
taken on the disciosure and the results’.74 Similarly, in the Austraiian Capital
Territory, if a request is made by a public interest discloser or a referring
authority detailed progress reports must be suppiied in accordance with the
requirements of Section 23 PIDA 1994.
One method of supporting whistleblowers is to allow anonymous and/or
confidential reporting. However, legislators also need to protect the privacy
interests of the subject of any allegation and of third parties. Neither Queens
land nor New South Wales seem to requfre informants to reveal their identity.75
By way of contrast, in the Australian Capital Territory a proper authority is not
required to investigate a public interest disclosure if the person making it does
not identify himseif or herself.76 However, public officials cannot, without
reasonable excuse, wilfully disclose confidential information gained through
their involvement in the administration of the PIDA 1994 uniess the provisions
of Section 33(2) apply. Similarly, in Queensland public officers must not record
confidential information or intentionally or recklessiy disciose it unless the
requirements of Section 55(3) WPA 1994 are fulfflled. In South Australia, a
recipient of public interest information must not reveal the discloser’s identity
without that person’s consent uniess it is necessary to ensure that the disclosure
70
PDA 2000 s 10(4).
71 PDA 1994 s 27.
WPA 1993 s 8.
Unless the investigation is being conducted by the subject of the complaint: WPA 1993 s 6.
W?A 1994 s 32(1). Section 32(3) specifies the circumstances in which this information need not
be given and s 32(4) indicates when infonnation must not be suppiied.
WPA 1994 s 27(1) expressly mentions anonymous reporting.
76
PIDA 1994 s 16.
186
June 2001 Whistleblowing at Work
is properiy investigated.77 In both New South Wales and New Zealand, a body
to whom a protected disclosure is made or referred cannot reveal information
which might identify the discioser unless certain conditions are met.78 Neither
the UK nor the South African statute deal with the issues of anonymity and
confidentiality. The rationale being that uniess the whistleblower’s identity was
known it will be difficult to demonstrate that any detriment resulted from that
person’s disclosures. A different viewpoint is that, if confidentiaiity can be
maintaíned, detrimental treatment is more iikely to be avoided.
Another direct method of supporting whistleblowers is to provide them with
immunity from legal action. All the whistieblowing statutes in Australia relieve
individuais of civil and criminal liability for making a protected disclosure. As
regards defamation, protected disclosures attract the defence of absolute privi
lege in New South Wales and Queensland and qualified privilege is available in
the Australian Capital Territory.79 In addition to providing immunity from both
legal and disciplinary proceedings, the New Zealand legisiation expressly deals
with contractual restrictions and prohibitions on disclosure of information.8° By
way of contrast, both the UK and South African statutes are less wide-ranging.
Although they prevent employers contracting out of the protections afforded,81
they aiso put those who commit an offence by making a disclosure outside the
scope of the iegislation.82 Another problem for workers in the UK and South
Africa is that if a reasonable belief about wrongdoing turns out to be incorrect,
an action for defamation could be commenced. Clearly, a discloser may be able
to rely on the defence of qualífied privilege or the right to freedom of expression
but a blanket immunity from proceedings wouid be far more reliable.
6. PROTECTION AGAINST VICTIMI$ATION
It is the author’s view that if legislation is genuinely seeking to protect those
who disclose information in the public interest, it must attempt to deter
people from taking reprisais against whistleblowers. Whether it is desirable to
make victimisation a criminal offence is debatable83 but civil remedies are less
‘ WPA 1993 s 7.
PDA 1994 s 22(a)—(c) and PDA 2000 s 19 respectively.
The South Australian legislation makes no specific mention of defamation actions.
00
PDA 2000 s 18.
‘ ERA 1996 s 43J and PDA 2000 $ 2(3)respectively. The latter goes further by rendenng void
any provision which ‘has the effect of discouraging the empioyee from making a protected
disciosure’.
82 ERA 1996 $ 433 (3)and PDA 2000 s 1(ix) respectively.
83
In the UK, behaviour that falis within the scope of the Protection from Harassment Act 1997
is a criminal offence. However, many forms or repnsai against whistleblowers wiii not be caught by
this Act.
187
lndustaI Law Journal
contentious. Nevertheless, legislators have to decide whether it is enough to
provide compensation for any detriment suffered or whether other remedies
should also be available to prevent both the wrongdoing and any reprisais
continuing.
In New South Wales it is an offence to take detrimental action against
another person ‘substantially in reprisal for that other person making a pro
tected disclosure’ and the burden of proof is on the defendant.84 However, the
PDA 1994 does not provide victims with any additional means of obtaining
compensation. By way of contrast, the South Australian statute does not create
a new criminal offence but states that ‘a person who causes detriment to
another on the ground or substantially on the ground that the other person or
a third person has made or intends to make an appropriate disclosure of public
interest information commits an act of victimisation’.85 An act of victimisation
can be dealt with as a tort or as an act of victimisation under the Equal
Opportunity Act (1984)(SA).86
Both the ACT and Queensland attempt to prevent reprisais and make them
an offence and a tort if they occur. In Queensland, public entities are required
to establisli reasonable procedures to protect their officers from reprisals.87
Anyone can report that a reprisal has been taken for making a public interest
disclosure88 and an injunction may be sought if a person is suffering or may
suffer detriment from a reprisal.89 Section 53 WPA 1994 allows for applications
to be kept confidential and, under Section 50, a person may be required to take
specified action to remedy any detriment caused. In addition, public service
employees who feel it is likely that a reprisal will be taken against them can
apply for relocation on the grounds that it is ‘the only practical way to remove
or substantially remove the danger’.9° The Australian Capital Territory appears
to be unique in attempting to prevent continuing wrongdoing as well as
reprisais. Thus if a proper authority feels that its investigation has revealed that
there has been disclosable conduct etc, it must take such action ‘as is necessary
and reasonable to prevent the conduct or reprisal continuing or occurring in
...
future; and to discipline any person responsible for the conduct or reprisal’.91 It
is an offence to ‘engage, or attempt or conspire to engage, in an unlawful
PDA 1994 ss 20(1) and (lA). Section 20(2) provides a broad definition of detrimental action’.
9° W?A 1993 s 9(1). Detnment is broadly defined in s 9(4).
9° WPA 1993 s 96 contains power to make the equivalent of injunctive orders and award
compensation for loss or damage.
9° WPA 1994 s 44. S 41 defines reprisa1’ as causing or attempting to cause, detriment to another
person. Detriment’ is defined in Schedule 6.
88
WPA 1994 s 20.
9°
WPA 1994 ss 47—9.
9°
WPA 1994 s 46.
9°
PIDA 1994 s 22.
188
Volume 30 June 2001 Whistleblowing at Work
reprisal’ and remedies in tort (including injunctions and exemplary damages)
are also available.92 Again, public officials can apply for relocation where there
is a danger of unlawful reprisal and, as far as practicable, this request must be
acceded to if the requirements of Section 27(a) and (b) PIDA 1994 are met.
New Zealand provides that employees who have suffered retaliation from
their employer or ex-employer may have a personal grievance under Section
103(1) of the Employment Relations Act 2000 in the case of either dismissal or
action other than dismissal.93 However, this protection only applies to those
who are employees within the meaning of the Employment Relations Act 2000.
In addition, Section 25 PDA 2000 deals with victimisation by amending Section
66(1) of tlie Human Rights Act 1993 in order to protect persons (and relatives
or associates) who: (i) intend to make or have made a disclosure or have
encouraged disclosure by some other person under PDA 2000; or (ii) have
given information or evidence in relation to any complaint, investigation or
proceeding arising out of a disclosure under PDA 2000.
In the UK, Section 47B(1) ERA 1996 gives workers the right not to be
subjected to any detriment for making a protected disclosure.94 This section
fails to deal with a detriment imposed by someone who lias no direct relation
ship with the worker. Nevertheless workers may complain that their employer
has subjected them to a detriment by failing to protect them from the actions
of third parties, for example, another employer. In addition, workers who have
been dismissed for making a protected disclosure and are not qualified to claim
under the general unfair dismissal provisions, can bring a claim under Section
47B ERA 1996. Section 103A ERA 1996 makes it automatically unfair to
dismiss employees on the grounds that they have made a protected disclosure.95
Similarly, Section 105(6A) ERA 1996 makes it unfair to select employees for
redundancy if the reason for doing so is that they have made a protected
disclosure. There is no limit on the amount of compensation that can be
awarded to those who have been penalised for making a protected disclosure.
finally, unlike New Zealand and the UK, South Africa does not draw a
distinction between dismissals and action short of dismissal. Section 3 PDA
2000 simply states that ‘No employee may be subjected to any occupational
detriment by his or her employer on account, or partly on account, of having
made a protected disclosure.’ However, ‘occupational detriment’ is very broadly
defined and covers all adverse effects, including a refusal to hire.96 It should
1 92
9°
PIDA 1994 ss 25, 29—31.
PDA 2000 s 17 (as amended by the Employment Relations Act 2000).
9°
for these purposes, the extended meaning of ‘worker’ in ERA 1996 s 43K applies and it is
made clear that detriment covers both actions and a deliberate failure to act.
9° No qualifying penod of service is requíred and no age restriction operates in these
círcumstances.
9° PDA 2000 s l(ix).
189
Industrial Law lournal
also be noted that an empioyee who reasonabiy believes that sfhe may be
adversely affected on account of having made a protected disciosure ‘must, at
lis or her request and if reasonabiy possible or practical, be transferred... to
another post’ on not iess favourable terms and conditions.97
7. MONITORING AND REVIEW
In Part 4 we observed that no country imposes a general duty on empioyers to
establisli whistleblowing procedures and that only New Zealand and the Austra
lian Capital Territory require such procedures to be established in public sector
organisations. In this part, the policy issues are both easy to identify and resolve.
Should there be a statutory obligation on employers to monitor and/or review
their whistleblowing procedures and should Ministers lave a duty to report on
the operation of public interest disclosure legislation?
Four of the jurisdictions under consideration provide for monitoring andlor
review. In the Australian Capital Territory, a government agency that is
required by statute to prepare an annual report must inciude in it a description
of its whistiebiowing procedures together with detailed statistics about the
number and type of public interest disclosures received and investigated and
particuiars of remedial action taken.98 Similarly, in Queensiand public sector
entities which are required to produce an annual report must include statistical
information about the number of public interest disclosures received and the
number ‘substantially verffied’.99 In addition, the Minister must also prepare an
annual report to the state Legisiative Assembiy on the administration of the
Act.’°° This approach has also been adopted in New Zeaiand where the Minister
of State Services must review the operation of the legislation and report on
whether any amendments to its scope and contents are ‘necessary or desira
ble’.’°’ In New South Wales, Section 32 PDA 1994 simply provides for a joint
committee of members of Parliament to review the Act every two years and to
report to both Houses of Parliament.
PDA 2000 s 4(2)(3.
PIDA 1994 s 124.
WPA 1994 s 30(2).
‘°° WPA 1994 s 31(2).
101
A report must be presented to the House of Representatives not later than three years after
the commencement of the Act (which was oni January 2001).
190
Volume 30 1 June 2001 Whistleblowing at Work
8. CONCLUSION
A fundamental decision for any legisiature is whether to protect ali whistleblow
ers or oniy those engaged in some form of employment. Clearly if rights are to
be extended to citizens generaily this must be reflected both in the arrangements
made for reporting concerns and in the remedies available if victimisation
occurs. However, for the purposes of this article we wiii assume that future
iegisiation is líkely to embrace only those who have some type of employment
relationship. If this is the case, it is suggested that rights should be given to all
persons who work for and receive remuneration from another person or tlie
State. For the reasons given in Part 3 above, the author believes that whistle
blowing legislation should cover both public and private sectors. Equally, given
the global nature of business, there are good grounds for permitting disclosures
about matters which occur outside a state’s territory or jurisdiction. Issues of
national security will inevitably be problematic. However, instead of excluding
the police and security services altogether, it would be preferable to devise
special rules for the protection of information about international relations and
inteiligence.
In relation to the types of information that can be disclosed, we saw in Part 2
that the common law imposes no particular constraints. Thus, in the author’s
opinion, the broad definition of qualifying disclosures used in the UK and South
African legislation could be more universally adopted, with the proviso that
specific mention should be made of reprisals and serious wrongdoing tlat does
not amount to a breach of a legal obligation. Legislation should also allow the
reporting of wrongdoing that is likely to occur as well as matters that have
occurred or are continuing. Similarly, protection should be afforded irrespective
of whether there is a link between the matter disclosed and the person’s
employment.
For the reasons mentioned in Part 3, the author would argue tlat 50 long as
whistleblowers have reasonable grounds to believe that their information is true
or likely to be true, there should be no investigation of their motive for making
a disclosure. Malice can be dealt with by denying protection to those who
knowingly make a false aflegation and thus rendering them liable to disciplinary
proceedings. Similarly, frivolous, vexatious or trivial reporting could be grounds
1 for recipients of information refusing to act upon it. However, it should not
result in the loss of protection for disclosers who may genuinely perceive things
differently.
No jurisdiction considered in this article requires ali employers to establish
whistleblowing procedures. However, for the reasons mentioned in Part 4, the
author believes tlat a statutory duty to establish and maintain effective report
ing procedures would be in the interests of society. It might also be valuable if
191
Industrial Law Journal Volume 30 1 June 2001 Whistleblowing at Work

legislation ensured that authoritative guidance was provided about the role and reinstatement or re-engagement. However, whatever form of detriment is
contents of such procedures. Only in these circumstances would it be appropri infiicted, without some agency having the means to assist victims it seems iikely
ate to impose a reciprocal obligation on workers to exhaust internal procedures that many will not be in a position to obtain legal redress.
before making an external disclosure (unless there were good grounds for not Finally, the imposition of an obligation on Ministers to review the operation
doing so). Since any action taken by an empioyer or investigating body is a of legislation wouid hardly be radical. Hopefuily, in deciding whether any
factor to be taken into account in assessing the merits of wider disclosures, it is amendments are necessary or desirable, Governments will have regard not only
imperative that procedures provide for whistleblowers to receive proper feed to events in their own country but will be prepared to reconsider their statutes
back. A related issue is whether to set specific periods for taking action rather in the light of developments elsewhere. Ciearly much lias been achieved by way
than leave the matter to be determined by a test of reasonableness. The author of employment protection for whistleblowers. Nevertheless, it foilows from the
favours the fixing of time limits in the interests of certainty. However, in order principies enunciated above that the legisiation couid be significantiy improved
to avoid inflexibility, legislation could provide that these iimits do not have to in order to encourage disclosures and the investigation of concerns about
be complied with if there are exceptional circumstances which have been wrongdoing. Indeed, it is disappointing to conclude that, despite the existence
communicated to the whistleblower in writing. As regards information being of specific legislation, whistleblowers in many of the jurisdictions we have
disclosed to inappropriate externai agencies, it is suggested that such bodies discussed wili still have to rely on the public interest defence at common iaw in
should be obliged to refer matters that they are not empowered to deal with to certain circumstances.
a more appropriate recipient. The writer also believes that there is no justifica
tion for excluding MP’s or the media from being treated as potential recipients.
In Part 5 we observed that in only three of the statutes under consideration
is there provision for the giving of advice and/or assistance. Thus in negotiating
the compiicated processes that can result in a disclosure being protected, those
who cannot afford a private lawyer will have to rely on any heip offered by
trade unions, charities, voluntary organisations etc. In the author’s opinion this
situation is extremeiy unsatisfactory and, as a matter of principie, public interest
disciosure iegislation should create a speciaiist agency. At the very least such a
body is needed to educate citizens about the legitimacy of reporting concerns in
a democratic society and to ensure that advisory and counseiling services are
available. Inevitably cost wili be a major inhibiting factor. However, if resources
were made available, a public interest disclosure agency might be empowered
to receive disclosures, arrange for their investigation by an appropriate authority
and protect whistieblowers from reprisais. Such an agency would have a
particularly important role to play if legislation encouraged the general pubiic
to report concerns.
Legislation should also relieve individuais of civil and criminal liabiiity for
making a protected disclosure and deter people from taking reprisais. Thus it is
important that those who have made a protected disciosure do not suifer
discrimination at the hiring stage.’°2 Similariy, those who genuinely fear adverse
treatment in their empioyment shouid be entitled to seek a transfer and where
workers have lost their jobs they should aiso have the option of choosing

102
It is a major Ioophole in the UK legislation that it does nothíng to inhibit the victimisation of
whistleblowers dunng the recruitment process.

192 193