Whistleblowers Protection Act

A claim for damages under the Whistleblowers Protection Act (WPA) usually requires a determination by:

• The Protected Disclosure Coordinator of a public institution; or
• The Ombudsman; or
• Others as defined by the Act; or
• Ultimately, by the Court (irrespective of (a), (b) or (c)),
  
  that a disclosure is:
  
  
  • A Protected Disclosure (PD); or
  • A Public Interest Disclosure (PID).

Any natural person can make a disclosure about improper conduct of a public officer or public body.

A disclosure can be anonymous and may be made orally or in writing but must be made in accordance with the prescribed procedures of a public institution.

The anomaly associated with a WPA Disclosure is that it can be about conduct that occurred in the past, even conduct occurring before the WPA commenced. However, the protections can only apply from when the WPA was introduced in January 2003.

Therefore, the Act envisaged a situation where a determination of PD or PID could be sought at any time. What the Act then allowed for is damages for any reprisals flowing from such disclosure and, on one view, irrespective of the date of the determination of the PD or PID.

Hence, the Act encourages disclosures to be made about past conduct and seeking a PD or PID. The Act is designed to encourage complainants to come forward and if they have been treated detrimentally by reason of that disclosure, a statutory right of damages is provided for. On one view, a disclosure made in the past which is now held to be a PD/PID could give rise to a claim in damages if reprisals followed from the disclosure made many years ago.

A disclosure must be about "improper conduct" which is defined as:

• Corrupt conduct;
• A substantial mismanagement of public resources;
• Conduct involving substantial risk to public health or safety;
• Conduct involving substantial risk to the environment
  
  that would, if proved, constitute:
  
  
  • A criminal offence;
  • Reasonable grounds for termination.
  "Corrupt conduct" is defined as:
  
  
  • A dishonest performance of a public officer's functions
  • Inappropriate partiality
  • A breach of public trust
  • Misuse of information
  or a conspiracy to engage in any of the above.

If a disclosure is found to be a PD or PID (by the Coordinator, Ombudsman, or Court) then the complainant cannot suffer "detrimental action" by reason of such disclosure.

It must be recognised however, that a person's liability for his/her own conduct is not affected by the person's disclosure of that conduct under the Act. i.e. if you are part of the improper conduct there is no immunity for being the Whistleblower. Please appreciate however that the Act appears to have some inconsistency with respect to this immunity as provided for at Section 14 which states:

"A person who makes a Protected Disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the Protected Disclosure."

"Detrimental Action" is defined as:

• Action causing injury loss or damage
• Intimidation or harassment
• Discrimination, disadvantage or adverse treatment in relation to a person's employment career profession trade or business including the taking of disciplinary action

Claiming damages for detrimental action is a claim for damages as for a tort, including exemplary damages.