Today’s question is:

Are employees and volunteer members of Australian emergency services agencies protected by whistleblower legislation when reporting misconduct in the organisation.

The answer does depend on the jurisdiction so for the sake of an answer I’ll refer to the Public Interest Disclosures Act 1994 (NSW). The Act applies to ‘public officials’ that is ‘an individual who is an employee of or otherwise in the service of a public authority’ (s 4A). Specifically the definition of a public official includes (s 4A(2)):

(a)        a volunteer rural fire fighter who is an officer or other member of a rural fire brigade under the Rural Fires Act 1997 ,

(b)       a volunteer officer or volunteer member of an SES unit (within the meaning of the State Emergency Service Act 1989),

So yes, the legislation does apply to ‘employees and volunteer members of [NSW] emergency services agencies’.

It is not every disclosure of reprehensible conduct that is protected. The Act is (s 3) intended to (emphasis added):

… facilitate the disclosure, in the public interest, of corrupt conduct, maladministration, serious and substantial waste, government information contravention and local government pecuniary interest contravention in the public sector

Protection under the Act depends on the ‘public official’ going through a number of steps set out in s 8:

(1) To be protected by this Act, a disclosure must be made by a public official–

(a) to an investigating authority, or

(b) to the principal officer of a public authority or investigating authority or officer who constitutes a public authority, or

(c) to–

(i) another officer of the public authority or investigating authority to which the public official belongs, or

(ii) an officer of the public authority or investigating authority to which the disclosure relates,

in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by that authority or any of its officers, or

(c1) to the principal officer of the Department of Parliamentary Services, the Department of the Legislative Assembly or the Department of the Legislative Council about the conduct of a member of Parliament, or

(d) to a member of Parliament or to a journalist.

A disclosure pursuant to s 8(1)(d), ie to a journalist or a member of parliament is only protected if

(1) …

(2) The public official making the disclosure must have already made substantially the same disclosure to an investigating authority, public authority or officer of a public authority in accordance with another provision of this Part.

(3) The investigating authority, public authority or officer to whom the disclosure was made or, if the matter was referred, the investigating authority, public authority or officer to whom the matter was referred–

(a) must have decided not to investigate the matter, or

(b) must have decided to investigate the matter but not completed the investigation within 6 months of the original disclosure being made, or

(c) must have investigated the matter but not recommended the taking of any action in respect of the matter, or

(d) must have failed to notify the person making the disclosure, within 6 months of the disclosure being made, of whether or not the matter is to be investigated.

(4) The public official must have reasonable grounds for believing that the disclosure is substantially true.

(5) The disclosure must be substantially true.

The protection provided by the Act is that it is an offence for a person to take detrimental action against another for making the disclosure.  One might question how useful this protection actually is. Former NSW SES Commissioner Murray Kear was alleged to have committed an offence of taking detrimental action against a whistleblower. He was acquitted of that offence but the whole process cost both him and Deputy Commissioner McCarthy their jobs with the SES (see NSW SES Commissioner found to have engaged in corrupt conduct (May 29, 2014); noting that report that the Commissioner was ‘found’ to have engaged in corrupt conduct was reporting on the outcome of the ICAC inquiry, not the subsequent prosecution where, as I say, former Commissioner Kear was acquitted of the criminal allegations; see the Postscript to the post Accessing a judge or magistrate’s reasons for decision (November 18, 2016). I note also that the ICAC inquiry has been subject to significant criticism – see for example Margaret Cunneen (2016), ‘Great Harm to Innocent People An ICAC story‘ Proceedings of the Samuel Griffith Society, Volume 28, p. 86; even so the finding stands and is still reported by the ICAC.)

Even with whistleblower legislation in place, one would need to stop and think carefully whether all the requirements of the act have been complied with and whether the ‘protection’ offered by the Act is truly sufficient in light of potential costs.

Conclusion

Yes volunteers and employees of NSW emergency services can rely on the Public Interest Disclosures Act 1994 (NSW) if they want to report ‘corrupt conduct, maladministration, serious and substantial waste, government information contravention [or] local government pecuniary interest contravention’.  Disclosure needs to be to an agency established to investigate such matters (eg the Ombudsman or the ICAC). If they want to ‘go public’ they need to first report the matter via the agencies internal procedures or to an external investigating authority and then ensure the requirements under s 8 have been met.

I was asked about Australian emergency services. To answer that would require consideration legislation in each state and territory. I have taken NSW as an example but would expect there would be similar answers in each of the other jurisdictions – but for a full answer see :

  • Public Interest Disclosure Act 2013 (Cth);
  • Public Interest Disclosure Act 2012 (ACT);
  • Independent Commissioner Against Corruption Act 2017 (NT);
  • Public Interest Disclosure Act 2010 (Qld);
  • Public Interest Disclosure Act 2018 (SA);
  • Public Interest Disclosures Act 2002 (Tas);
  • Public Interest Disclosures Act 2012 (Vic); or
  • Public Interest Disclosure Act 2003 (WA).