WRITTEN BY Kieran Pender
At the May 2025 HR Breakfast Club, Kieran Pender – senior lawyer, academic, and whistleblowing expert – shed light on the evolving legal landscape of whistleblower protections in Australia. His timely presentation traced the growing challenges with Australia’s current framework and provided practical advice for employers navigating this complex legal environment. Here’s what you need to know.
Once global leaders in whistleblower protections, Australia’s current regime is now widely regarded as fragmented, underperforming, and in urgent need of reform. Citing the 2023 Cost of Courage research, Kieran noted that there has not been a single court judgement in favour of a whistleblower under Australia’s primary whistleblower laws since enactment. Only one individual has ever received court-ordered compensation – just $5,000.
Kieran discussed how the current legal landscape is fragmented. Specifically, there are many different regulatory frameworks for whistleblower protections across federal, state and territory public sectors and the federal private sector – creating overlap and inconsistencies between legislation.
Each regime sets out criteria for the four key elements for whistleblower protection. While the content differs across legislation, the key elements in establishing protection are:
The outcome is legal uncertainty, even for well-intentioned organisations. Employers must ensure they are clear on which laws apply and how to comply. Kieran walked through two of the most common legislative frameworks in establishing whistleblower protection – the Corporations Act 2001 (Cth) (Corporations Act) and the Public Interest Disclosure Act 2013 (Cth) (PID Act)
Kieran discussed the key features of investigations into disclosures. Notably, Australia provides several protections for whistleblowers including immunity from civil, criminal and administrative liability.
Further, whistleblowers are protected from reprisal and detriment through the Corporations Act and PID Act. Within the Corporations Act, a reverse onus of proof applies once the whistleblower has established that they have suffered detriment and the PID Act outlines that it is a criminal offence to take or threaten to take a reprisal action against anyone in relation to a PID Act. Importantly, whistleblower reports made anonymously will still have access to these protections.
Kieran outlined some practical guidance for proactive compliance with whistleblower obligations. Notably, Kieran emphasised that companies should:
The Corporations Act is not a workplace law for general protection purposes. However, it is common to see dual-pleaded claims with both a Fair Work Act general protections aspect and a Corporations Act whistleblowing aspect. A PID Act claim can also be made by way of general protections claims.
Kieran discussed a number of recent cases such as Mount v Dover Castle Metals Pty Ltd FCA 101and Reiche v Neometals Ltd (No 2) FCA as well as Jackson v Heart Research Institute Ltd FCA 301 to assist in defining key terms such as ‘the disclosable conduct threshold’, ‘eligible recipient’, ‘knowledge required for reprisal’ and ‘confidentiality’.
Finally, Kieran suggested that we can expect substantial changes into the future. Currently, the Attorney General’s Department is in phase 2 of its review of the PID Act, a discussion paper on the treasury statutory review into the Corporations Act and Taxation Administration Act is imminent and the Senate Legal & Constitutional Affairs Committee is conducting an inquiry into the Whistleblower Protection Authority Bill.
The best-case scenario within this space will be that Australia adopts consistent, harmonious, and greater practical support for whistleblowers and organisation subject to whistleblowing laws. On the other hand, a less favourable outcome will look like more whistleblowing laws, duplication, overlap, and more problems.
If you are an HR professional and would like to attend our future HR Breakfast Club forums, please visit our monthly forum page and register to attend.
If you have any questions or queries about the information in this summary, or if you are experiencing any issues and need advice, please contact the BAL Lawyers Employment & Investigations team on 02 6274 0999.