Towards 'ideal' whistleblowing legislation? Some lessons from recent Australian experience

Abstract

Whistleblower protection is increasingly important for detection and rectification of wrongdoing in and by organisations, and enforcement of citizen and worker rights. However the form of legal protections remains contentious, with the search for 'ideal' or 'model' laws complicated by the diversity of approaches attempted by jurisdictions; frequent lack of evidence of their success; and the lack of a common conceptual framework for understanding approaches across different legal systems. This article seeks to aid understanding of the ways in which different policy purposes, approaches and legal options can be combined in the design of better legislation, using Australia's recently passed Public Interest Disclosure Act 2013 (Cth). It provides a guide to key elements of the new legislation, as an example of legislative development taking place over a long period, informed by different trends. In particular, it is one of the first national laws to seek to integrate divergent approaches to the 'anti-retaliation' model of whistleblower protection, including its place in the employment law system; sets new standards for the role of 'public whistleblowing' in such a regime; and provides new responses on basic questions of coverage, including which individuals are able to gain the benefit of the legislation (who is a 'whistleblower'?). This provides lessons as to how different legal approaches might be better integrated, in pursuit of a clearer understanding of the interface between whistleblowing and other integrity reforms.