How are whistleblowers protected under the common law?

The common law provides limited protections for employees who disclose illegal, immoral or illegitimate practices on the part of their employer. Indeed, an employee’s duty of fidelity and good faith can constitute a positive disincentive to whistle blowing, given an employee who discloses confidential information may be liable to disciplinary action, including dismissal. A whistle blowing employee may also be subject to legal proceedings for breach of common law or equitable duties or for defamation.

The duty of fidelity and good faith is subject to an exception where the disclosure relates to an ”iniquity" on the part of the employer. However, this may be of limited value to an employee who has lost his or her job and who is unable to recover substantial damages for breach of contract.

On the other hand, an employer’s failure to protect whistleblowers from victimisation can sometimes enable employees to recover substantial damages where they can show that such failure constituted a breach of the employer's common law duty of care, or that the employer is liable for the actions of its employees.

See How are whistleblowers protected under the common law?

Whistleblowers — raising concerns about the private sector

Whistleblower protection for persons disclosing concerns of misconduct or of an “improper state of affairs or circumstances” concerning private sector entities is set out in the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth).

Protection for whistleblowers may also be available under other legislation, such as discrimination, consumer and work health and safety legislation.

Where the concern relates to matters of public interest (eg, a private sector entity providing a public service) there may be some cross-over with legislation dealing with disclosures about the public sector.

See Whistleblowers — raising concerns about the private sector

Whistleblowers — raising concerns about the public sector

An extensive range of legislative protections exist for whistleblowers in Australia who raise concerns about the public sector and matters of public interest.

At the federal level, and in each state and territory, there is specific legislation protecting certain persons who disclose information that relates to improper conduct or maladministration by public officers and public bodies. In some jurisdictions, legislation extends to disclosures about conduct in the private sector, eg, where the disclosure relates to illegality, a risk to public safety or to the environment or where the conduct relates to private sector entities engaged to provide services to a public body. Disclosures under made under this legislation are “public interest disclosures”.

Other laws, such as corporations, taxation, employment, discrimination, work health and safety and consumer legislation also provide a degree of protection to whistleblowers in both the public and private sectors.

See Whistleblowers — raising concerns about the public sector.