Christine Milne (Tasmania, Australian Greens) Share this | Hansard source

I move Australian Greens amendment (1) on sheet 7309:

(1) Schedule 5, page 34 (after line 9), at the end of the Schedule, add:

Part 3—Protection for whistleblowers

Fair Work Act 2009

4 Section 12

  Insert:

     public interest disclosure: see subsection 351A(2).

5 After section 351

  Insert:

351A Public interest disclosures

(1) A person (the first person) must not take adverse action against, threaten or harass another person because the first person believes that the other person made, or was going to make, a public interest disclosure.

  Note: This section is a civil remedy provision (See Part 4-1).

(2) A public interest disclosure means a disclosure covered by subsection (3) if it is made in the circumstances covered by subsection (4), but does not include a disclosure of information by a person if the person knows that the information, or part of the information, is false or misleading.

(3) This subsection covers disclosures by a person about any of the following kinds of conduct that the person reasonably believes an employer, employee or an independent contractor has engaged in, or intends to engage in:

  (a) an act or omission that would constitute a crime against the laws of the Commonwealth, a State or a Territory;

  (b) a misappropriation of money or property belonging to another;

  (c) a misuse or concealment of information that relates to, or has been obtained because of, a person's employment, where the misuse or concealment is made for personal benefit or is detrimental to the public interest;

  (d) an act or omission that presents a significant risk to:

     (i) a person's safety; or

     (ii) public health; or

     (iii) the environment;

  (e) an act or omission that has, or is likely to cause, an unjust or unacceptable impact on a person.

(4) A disclosure by a person is made in the circumstances covered by this subsection if:

  (a) either:

     (i) the person has made the disclosure to his or her employer and the employer has failed to properly respond in a reasonable time; or

     (ii) it is not appropriate for the person to make the disclosure to his or her employer; and

  (b) it is reasonably necessary for the person to make the disclosure to a person other than his or her employer.

(5) No action or proceeding, whether criminal or civil, lies against a person for or in relation to a public interest disclosure made by the person in accordance with this section.

6 Subsection 539(2) (column 1 of item 11 of the table)

After "351(1)", insert "351A(1)".

I rise today to move this amendment for the Australian Greens on whistleblowing or public interest disclosure. This is something the Australian Greens feel very strongly about. We note that the government made all sorts of promises about dealing with comprehensive whistleblower legislation, but we are yet to see it.

This is a really important amendment as we know that whistleblowers in Australia are afraid to come forward in many cases because they suffer vilification and frequently they lose their jobs or do not get promotion. So we are in a situation where, instead of transparency and openness and reporting of problems, we have covering up. This amendment will enshrine whistleblowing as a workplace right under Fair Work Australia. The act applies to 80 per cent of the Australian workforce, including the federal government sector, many state agencies and large swathes of the private sector. If claims are made that it covers small business, we can say that the overwhelming majority who are doing nothing wrong have nothing to fear.

Essentially, this amendment will enshrine whistleblowing as a protected right through the existing mechanism in the act called 'adverse action'. What that does is prevent an employer, fellow employee or contractor from taking an adverse action against someone after they have made a public interest disclosure. This could include firing them, demoting them, reducing their pay, cancelling supply orders et cetera. If an adverse action is taken they will be able to claim compensation under the act.

The example that I can give is one that has just been reported in the last couple of weeks—that is, with Mr Twiggy Forrest's Fortescue Metal Group. They commissioned an archaeologist firm to inspect the cultural artefacts and connections of the traditional owners in the Pilbara. When Fortescue did not like the results, they ordered that sections be taken out and they withheld payments until they did. This scourge affects environmental assessments and native title applications too. One firm wrote to the Western Australian department after the requested changes were made and the other refused to make the changes and had to forgo $70,000. In the private sector, whistleblowing protections should extend to contractual right to payment as well as subsequent adverse treatment against contractors if they make a protected disclosure.

Another example is the HIH collapse. This could have been avoided if these proposals were in place at the time. The external actuaries and auditors of HIH relied so heavily on their business that they did nothing when the HIH board refused to heed the recommendations and deferred to the board's authority in fear of upsetting the business relationship and regular work. So there was no incentive or protection for people to blow the whistle on what was clearly going on in that particular company. It is important that we move to recognise whistleblowing as a workplace right.

In addition to adverse action, the amendment also incorporates threats and harassment to stop workplace bullying, which commonly follows disclosure of the information. As we heard recently when a former policeman came forward in relation to what has led to a royal commission into sexual abuse, he knew that his career would be over in terms of the bullying that would go on as he revealed the extent to which moves had been suppressed within the police force formerly.

To qualify for the protections of Fair Work, the whistleblower must first raise the issue with the employer and then, if there is no adequate response to the disclosure within a reasonable time, they may make a disclosure that is reasonably necessary to another person. If it is not appropriate for the person to inform their employer for a justifiable reason, they can immediately inform a third party and still be covered by the scheme. If the above procedure is followed, they would be immune from civil and criminal action arising from the disclosure. It is really important that we take this on board and work now to make sure that we give whistleblowers this workplace right and protect them from any adverse consequences that might occur when they are clearly acting in the public interest. It needs to be not only in the public sector but it also needs to cover the private sector.

The classes of disclosable conduct are listed in the subclause, and there is a catch-all in (e) that says they include 'illegal acts, misappropriating money or property, misuse or concealment of information and risks to public health, a person's safety, and the environment'. In other words, they are disclosable conduct that would be protected by making whistleblowing a fairly extensive workplace right. But a person who discloses information, or even a part of it, with knowledge that it is false or misleading will not be covered by the provisions, so it is not just a carte blanche and it is not trying to encourage vexatious individuals or people making up things or presenting false information. It is actually saying that the provision for whistleblowers covers you providing the information you are giving is truthful and in accordance with what you are claiming. It will cover people in the public and private sectors.

Given the enormous wealth that is being made around the country, particularly in the resources sector, and the decision by the Commonwealth to devolve responsibility to the states for environmental protection and environmental assessment, it is critical that we get coverage for whistleblowers in legislation. I am hoping that there will be support in the Senate for acting on what people say they want—that is, actually protecting whistleblowers in the public interest and making whistleblowing a workplace right.