Symbols or Substance? Priorities for the Reform of Australian Public Interest Disclosure Legislation

The last 15 years have seen many developments in Australian public interest disclosure, or "whistleblower protection", legislation. Since 1991, every Australian public law jurisdiction has enacted or introduced such legislation, and in 2004 comparable provisions extended similar principles to Australian corporate law, and to a lesser extent workplace relations. This paper presents key results from a comparative analysis of these legislative regimes, focusing on five issues: who may disclose wrongdoing in the public interest, the types of wrongdoing that may be disclosed, protection of "public" as opposed to internal or regulatory whistleblowing, compensation mechanisms for aggrieved whistleblowers, and how to best achieve effect legal recognition of the obligations of all employers - public or private - towards employees who blow the whistle in the public interest. This analysis demonstrates the need for greater consistency in the key legal thresholds and operational requirements imposed by Australian whistleblower protection regimes, and the potential for common tests and processes covering both the public and private sectors. In large part, the prospect for accelerating the transition towards more effective, less "symbolic" regimes depends on a clearer consensus about the public importance of employee disclosures and the organisational advantages of open, proactive approaches to disclosure management.