Councils and criminal reporting – recent law changes make it important to know your rights and obligations
Australia’s whistleblower and defamation laws are changing to offer greater protections to those reporting crimes, and to whistleblowers in the public sector. Councils must be aware of their obligations and ensure their policies and procedures are updated accordingly.
In this article, we outline:
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recent developments in the law concerning the regulation of corruption and public interest disclosures
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proposed reforms to defamation legislation that extend the “absolute privilege” defence.
We also consider how such changes may impact local councils.
Anti-corruption legislation
Recently, federal and state anticorruption regimes have been amended to increase protections for whistleblowers who report corrupt conduct in government. Perhaps the most significant of these changes is the establishment of the new National Anti-Corruption Commission, or NACC.
The NACC is an independent Australian Government agency that detects, investigates and reports on serious or systemic corrupt conduct in the Australian Government public sector. It also has an educational role.
While the NACC cannot investigate concerns relating to a State or Territory government entity, including their local councils, it may well take an interest where contracts in those areas are funded by Commonwealth grants. To that 14 extent, its work has the potential to impact all local councils within Australia.
Public interest disclosures
In addition to the newly formed NACC, reforms to New South Wales’ public interest disclosures legislation came into effect in 2023. Broadly, public interest disclosures concern ‘serious wrongdoing’ in the public sector. The new Public Interest Disclosures Act 2022 (PID Act) is aimed at:
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simplifying the disclosure process
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improving protections for whistle blowers
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preventing technicalities which resulted in unprotected disclosures.
The new provisions also:
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reduce the threshold to trigger protections for public officials from detrimental action if they are suspected of having made a public interest disclosure
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place a duty on agencies to investigate or refer a public interest disclosure, provide training to employees on public interest disclosures, and to undertake risk assessments and corrective action when necessary
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make agencies statutorily liable for any injury, damage or loss suffered by a person as a result of a failure to comply with their statutory risk management obligations.
Councils must ensure internal whistleblower, complaints and workplace health and safety policies are updated to align with current laws. They should also provide education and resources (such as confidential disclosure hotlines for staff and stakeholders) to their staff regarding whistleblower and public interest disclosure requirements.
Defamation legislation update
Australia’s defamation laws are also changing, with proposed reforms aimed at improving protections for victims and witnesses reporting potential criminal activity to the police. The Stage 2 Model Defamation Law Provisions are due to come into effect in July 2024.
The changes follow heightened social concern about the “chilling” effect potential defamation claims may have on victims’ reporting of alleged sexual misconduct or fraud. In response, it is proposed to extend the absolute privilege defence to anyone reporting alleged or suspected criminal conduct to police.
Absolute privilege provides a complete defence to a defamation claim, irrespective of the publisher’s motive or reasonableness. This is distinct from qualified privilege, which can be defeated by evidence of malice on the part of the publishing party.
Presently, absolute privilege applies where the matter is published during proceedings of a parliamentary body, Australian Court or Australian Tribunal, or in circumstances specified in Schedule 1 of the Defamation Act (Act). One of those circumstances is any matter disclosed to or by the NSW Independent Commission Against Corruption. The current position, however, is that false reports and declarations are punishable offences.
The Federal position is slightly different. It is a criminal offence to take reprisal against a person for making a referral, providing information or giving evidence to the NACC or under the PID Act. While a defence of qualified privilege would likely apply, adding the NACC to Schedule 1 of the Defamation Act would confirm that absolute privilege applies to disclosures to the NACC.
Future case law may clarify whether the NACC is captured by the proposed reforms to absolute privilege in defamation law. Should the answer be yes, this is likely to eliminate the chilling effect potential defamation claims have on those reporting crime.
In any event, councils should keep in mind that the PID Act is covered by the absolute privilege defence in Schedule 1 of the Defamation Act. This means councils should encourage public interest disclosures of corrupt conduct by assuring staff and stakeholders against the perceived chilling effect of defamation claims.
Conclusion
Council officers should be aware of their rights and obligations with respect to anti-corruption legislation, including understanding that:
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whistleblower protections exist for those reporting “serious wrongdoing” in the public sector
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the newly created NACC and the Independent Commission Against Corruption have broad mandates to detect and investigate corruption > local councils are most likely affected by reforms to the PID Act and may also experience indirect consequences from the Federal NACC powers
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amendments to the Defamation Act due to come into effect in July 2024 extend protections to reports of crime, to prevent victims and witnesses being sued in defamation.
Should you have any queries, please don’t hesitate to reach out to any of the authors.
Authors: Adam Cutri, David de Mestre & Isabelle Stillman