Australia: Whistleblower laws: how to handle a protected disclosure

With the new Federal whistleblower laws commencing on 1 July 2019, it is an opportune time to review how your organisation will handle and manage protected disclosures. The proper handling of a disclosure is vital from many perspectives.

Undoubtedly, the poor handling of disclosures can result in a culture of silence and lost opportunities for improvement. A failure to act on a disclosure can result in the matter being reported to the media or Parliament with potential reputational damage. Conversely, the good management of a disclosure can result in a more ethical culture. It can avoid reputational damage and prosecution for breach of the whistleblower laws.

In this bulletin, we:

  • summarise the key obligations on business when handling a protected disclosure;
  • outline the broad process of handling and managing a disclosure; and
  • discuss some of the many considerations that influence how you can best handle a protected disclosure.

A consideration of these matters, and how your organisation will investigate disclosures, will then influence the content of any whistleblower policy to be promulgated by your business.


If a protected disclosure is made, strict confidentiality must be maintained. The information that is confidential is both the discloser's identity and information that is "likely to lead to the identification of a discloser" (the confidential information).

This obligation of confidentiality is imposed on the recipient of the disclosure, the organisation and any other person that directly, or indirectly, obtains the confidential information. What this means is that the recipient of the disclosure cannot disclose the identity of the discloser, even to other eligible recipients in the organisation or to those that will investigate.

Confidential information can be disclosed if it is made to a prescribed regulator or the discloser gives consent. Obtaining consent is important in order to assist in the effective management of the disclosure. Normally there would be a need for the recipient to initially obtain consent from the discloser to at least refer the disclosure to the relevant personnel equipped to investigate and manage the matter, like HR, legal or internal audit.

The obligation of confidentiality also does not apply if:

  • the information is not of the identity of the discloser; and
  • the disclosure is "reasonably necessary for the purposes of investigating" the matter; and
  • the business and relevant personnel "takes all reasonable steps to reduce the risk that the [whistleblower] will be identified".

No guidance is otherwise provided as to what constitutes "all reasonable steps". This will be assessed on a case-by-case basis with the protection of disclosers given paramount importance.

Protecting the confidential information will therefore mean taking care in what you say, including:

  • referencing a personal identification by a trait such as gender, age, disability, religion or ethnicity;
  • revealing the nature of the information disclosed in circumstances where the information would only be known to a limited number of individuals; and
  • the role or position of the discloser if there are a small number of people who fit that description.


There are significant protections against victimisation. Crucially, these provisions apply to persons who are believed or suspected to have made, or have proposed to make, a protected disclosure. The protections are enlivened if the victimising conduct was motivated by the belief or suspicion that the person has made, or will make, a disclosure.

The types of conduct that may constitute victimisation are broad and include dismissal, injury, alteration of an employee's position, harassment or intimidation and harm (including psychological harm) and damage to a person's property, their reputation, business or financial position.

Failure to comply with these protections attracts significant penalties for both individuals and companies.

The disclosure management process

The steps leading up to the investigation of a disclosure are critical. These steps put in place the framework as to how a disclosure is best managed balancing obligations to protect confidentiality and avoid victimisation but have the appropriate freedom to manage, investigate and respond to the disclosure. Broadly the process is as follows:

The triage step

The first step is to determine whether you are dealing with a protected disclosure covered by the strict whistleblower provisions in the Corporations Act 2001 (Cth), or some other type of complaint. This step is broadly about checking the following matters:

Business should err on the side of caution in determining whether a disclosure concerns misconduct or an improper state of affairs but jealously protect from personal work-related grievances being treated as a protected disclosure. A complaint, disclosure or grievance that is not protected under the Corporations Act may provide more freedom and flexibility to manage.

A report of information that is not a protected disclosure may still be, for example, an exercise of a workplace right by an employee under the Fair Work Act 2009 (Cth) to make complaint. Protections apply under that legislation against adverse action because a workplace right was exercised.

The assessment step

This is the next critical step – assessing the disclosure and planning the next steps needed to act on the disclosure.

Assessment is about more than just the disclosure itself. Sure, you need to assess whether further information and detail is needed from the discloser to enable you to act on the matter. You may also make an assessment as to whether the report warrants any action or investigation at all, or needs to be referred externally to a regulator. But more is needed.

You must undertake a risk assessment early, including from a work health and safety perspective. What is the risk of harm or victimisation to the discloser? What are the risks of a breach of confidentiality? What are the risks of harm to the subject of the disclosure? A risk assessment will identify strategies to managing risk, the steps you need to take prevent victimisation and manage confidentiality but also identify the ability to action the matter.

Organisations should be discreet in all communications and holding meetings with disclosers at times and locations to avoid identification and speculation. Disclosures (and any subsequent investigation material) should be stored securely on networks and separately from HR files.

The assessment step also involves considering whether the disclosure can be appropriately dealt with by investigation or managerially. Some complaints, including anonymous complaints, may allow or require an audit or inquiry of business records, or some surveillance, as opposed to interviews or more formal investigative processes.

Assessment is also about identifying how you will investigate the matter, and what you need to be able to investigate properly. You should start to develop terms of reference and an investigation plan. Is the matter to be dealt with internally or externally? Will the need to maintain confidentiality impede the investigation? Do you need consent from the discloser to reveal their identity?

What is the reporting structure for any action, noting the confidentiality requirements? Is consent needed to be able to report the matter to any internal reports, including to action the disclosure and any outcomes?

The consultation step

This step works in tandem with the assessment step. Communication about the process and protections are vital to obtaining consent and flexibility in the management of the disclosure.

Consulting with disclosers about risk is a valuable source of information. For example, has the discloser discussed their complaint with others? This may identify sources for a breach of confidentiality. Alternatively, is the disclosed matter widely known?

The inclusion of disclosers in the risk management process also builds their confidence and trust in the process. Discussion needs to take place about any risk management measures and strategies to be implemented.

The business needs to discuss with the discloser any limitations in the investigation due to confidentiality. A discussion about sources of information may assist in identifying if the matter can be dealt with without revealing confidential information. But if consent to disclose is needed to investigate the matter more deeply, the discloser needs to be told. Any consent obtained should be documented.

Disclosers need to be told of the protections to them from victimisation. If they give consent to disclose their identity, they need to know that the organisation will appropriately warn all those involved against victimisation and notify them of the responsibility to maintain confidence. Disclosers also need to be aware of the support available to them during any investigation, such as contact officers and EAP.

Importantly, any risk assessment process and investigation plan needs to be continuously reviewed. Part of avoiding a protected interest disclosure is to regularly keep the discloser up to date on steps and actions being taken. Continual communication is vital.

The action step

The organisation must be seen to take action in response to a disclosure.

The action step does not always need to involve an investigation. Other ways to gather information may include an IT audit, some form of surveillance, or a survey to gauge culture. The may also be steps to address the problem revealed by the disclosure, such as training, improvements to procedures, policy reform or other managerial action. These responses may avoid the need for the disclosure of confidential information or for a formal investigation.

What's next

Companies need to develop and promote clear policies and procedures regarding whistleblowers and the handling and management of their disclosures. Training recipients of protected disclosures and those that manage them is vital to ensure good complaint handling.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions