Whistleblowers
The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) gives certain people legal rights and protections as whistleblowers.
Whistleblowers can access their legal rights and protections from when they make a disclosure to the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) or ORIC. Protected whistleblowers can also access the protections from when they make a disclosure internally within the corporation, or externally, for example to the corporation’s auditor.
How is whistleblowing different to reporting a concern?
Anyone can report a concern to ORIC about a corporation’s compliance with the CATSI Act and its rule book and they can make this report anonymously. When you report a concern about a corporation to ORIC we will keep your identity confidential and only disclose it if required by a court – consistent with the CATSI Act and the Privacy Act 1988.
If you are disclosing wrongdoing as a whistleblower, you cannot do so anonymously, and there are specific eligibility requirements for whistleblower protections to be afforded to you under the CATSI Act. Because of these protections, we receive and handle whistleblower disclosures differently to a report of concern.
Should you decide to make a whistleblower disclosure, you can help us by doing a few things in addition to the whistleblower requirements set out in the CATSI Act.
If you are unsure whether you are eligible for whistleblower protections under the CATSI Act, it is important to seek legal advice. ORIC is not able to give you legal advice.
Who is a whistleblower under the law?
Under the CATSI Act, someone eligible for protections as a whistleblower can be someone who is:
- an officer or contact person of an Aboriginal and Torres Strait Islander corporation
- an employee of an Aboriginal and Torres Strait Islander corporation
- a person who has a contract for the supply of services or goods to an Aboriginal and Torres Strait Islander corporation
- an employee of a person who has a contract for the supply of services or goods to an Aboriginal and Torres Strait Islander corporation.
Disclosing concerns as a whistleblower
All disclosures of alleged misconduct (including those from whistleblowers) made to ORIC are reviewed and assessed.
Where these matters occur in the context of an employment dispute or issue, we will not focus on those issues but on the alleged misconduct or breaches of the CATSI Act.
ORIC cannot investigate every allegation that is made to us. We must consider the merits of each disclosure to determine whether an investigation is appropriate first.
The disclosure must be made to one of the below:
- the Registrar
- the corporation’s auditor or a member of an audit team conducting an audit of the corporation
- a director, secretary or senior manager of the corporation
- a person authorised by the corporation to receive disclosures of that kind.
How to make a whistleblower disclosure to ORIC
How we receive your disclosure helps us to immediately identify it and take appropriate action.
At a minimum, whistleblower disclosures need to be made in writing via email to whistleblower@oric.gov.au and state your name – you must provide your name in order to access the whistleblower protections in the CATSI Act.
Receiving your disclosure in writing helps us to make sure that your information is accurate and in your own words.
If we receive your disclosure another way, we may not be able to immediately identify that it is a whistleblower disclosure so our initial response and action might be different.
However, we recognise that making a whistleblower disclosure instead of a standard report of concern comes after significant thought and commitment. We understand that you explicitly seek whistleblower protection.
So that we can best assist you in this process we strongly encourage you to:
- email whistleblower@oric.gov.au only
- include in the email subject line Whistleblower Disclsoure: ABC Aboriginal Corporation (ICN 1234)
- state your name and role
- state that you make the disclosure as a whistleblower e.g. I make the following disclosure as a whistleblower under section 466-1 of the CATSI Act
- detail the nature of the alleged wrongdoing, and where possible provide evidence
- advise of your circumstances and risks that ORIC should consider in protecting you e.g. what information provided in your disclosure makes it easy to identify you
- email from an account that is private and that you check regularly
- provide phone contact details
- advise us of any times that we should not contact you.
Yes. The CATSI Act makes it illegal (through civil penalty) for someone to disclose your identity, or information likely to lead to your identification, as a whistleblower unless it is an ‘authorised disclosure’.
An ‘authorised disclosure’ of your identity or information is a disclosure made:
- to the Registrar
- to the Australian Securities and Investments Commission
- to the Australian Prudential Regulation Authority
- to the Australian Federal Police
- to a member of a State or Territory police force
- with the consent of the discloser.
The protections cover you if you are a whistleblower under the law and you disclose misconduct or a breach of the law by a corporation, its managers or employees to specific people.
You must have reasonable grounds to suspect that information you provide indicates that:
- the corporation has, or may have, contravened the CATSI Act; or
- an officer or employee of the corporation has, or may have, contravened the CATSI Act.
You must have reasonable grounds to suspect the misconduct that you disclose and it must be made in good faith.
If your disclosure is solely about a personal grievance you are having in the workplace, you will not be protected by the whistleblower laws.
Examples include:
- an interpersonal conflict between you and another employee
- a decision relating to your engagement, transfer or promotion
- a decision relating to the terms and conditions of your engagement
- a decision to suspend or terminate your engagement, or otherwise to discipline you.
While the whistleblower protections are not available for a personal work-related grievance, you may have other employment law protections available to you. Contact the Fair Work Ombudsman or Fair Work Commission for information about workplace rights and obligations.
We will register your disclosure in a secure location.
We will acknowledge the receipt of your disclosure and will contact you if we require further information from you. We will keep your information and identity confidential. However, in very limited circumstances – for example, if a court requires us to do so – we may be compelled to provide it. If this happens, we will seek to speak with you ahead of time.
We will contact you if we need further information, or to refer your concerns to another regulator or law enforcement agency.
If we progress your disclosure to an investigation, we may contact you to update you where it is appropriate to do so.
We appreciate the importance of informing the public of our regulatory activities; however, discussing information regarding our regulatory work may jeopardise an investigation.
If your disclosure to ORIC is about matters that fall within the responsibilities of another regulator or law enforcement agency, we may refer you to a more appropriate agency to consider the concerns – such as state and territory or federal police or another regulatory body. In addition, we may not be able to inform you of the actions taken by the other regulator or agency. You would need to contact them directly for an update.
No. You must provide your name before you make your disclosure to ORIC in order to access the whistleblower protections in the CATSI Act.
ORIC’s role in relation to whistleblowers
ORIC’s role is to:
- receive and consider your disclosure about misconduct and breaches of the CATSI Act
- investigate the concerns where it is appropriate and within our regulatory responsibilities.
We may also look into allegations that you:
- have experienced, or been threatened with, detriment for making a disclosure
- have had your confidentiality breached.
The Registrar does not decide who is and who is not a whistleblower. The CATSI Act sets out who is eligible for whistleblower protections. Whether you are a whistleblower and can be protected as one, takes into consideration a range of things including what you disclose, how you disclose it and who to.
If there is a dispute about whether you are eligible for whistleblower protections under the CATSI Act, it can only be determined by a court.
There are limits to the Registrar and ORIC’s role that are important to understand:
- We administer the requirements of the CATSI Act on behalf of the Registrar, and prioritise which matters will be investigated. We cannot enforce laws other than the CATSI Act, and not every disclosure results in a formal investigation. Only when a civil penalty or criminal prosecution is the outcome of an investigation will ORIC place it on the public register.
- The whistleblower protection provisions in the CATSI Act do not oblige the Registrar or ORIC to:
- act for you if you are the subject of a private litigation or prosecution
- bring on an application on your behalf if your employer has terminated your employment as a result of a disclosure.
- The Registrar does not decide who is and who is not eligible for whistleblower protections. This is set out in the law. If there is a dispute about whether you are eligible for protections, it can only be determined by a court.
- We cannot provide you with legal advice. If you believe you may be a whistleblower or are unsure what protections apply to you, we urge you to seek independent legal advice.
- Unlike some foreign countries, whistleblowers in Australia are not eligible to receive a financial reward for making a whistleblower disclosure; the CATSI Act does not provide for it.
Receiving information about disclosures made to an individual other than the Registrar
The CATSI Act says that you may make a disclosure to:
- the Registrar
- the corporation’s auditor or a member of an audit team conducting an audit of the corporation
- a director, secretary or senior manager of the corporation
- a person authorised by the corporation to receive disclosures of that kind.
An individual listed above, other than the Registrar, may choose to share the disclosure with ORIC. The CATSI Act allows them to share your identity and the information you disclosed.
Reporting alleged breaches of the whistleblower protections
ORIC can receive and consider allegations that a person has:
- caused you or threatened you with detriment for disclosing your concerns as a whistleblower; or
- breached your confidentiality.
Alleged breaches of the CATSI Act whistleblower protections should be reported to ORIC via email to whistleblower@oric.gov.au.
Causing or threatening detriment to a whistleblower
The CATSI Act makes it illegal (through criminal offence and a civil penalty) for someone to cause or threaten detriment to you because they believe or suspect you have made, may have made, propose to make, or could make, a whistleblower disclosure.
It is an offence even if you have not made a whistleblower disclosure, but the alleged offender causes or threatens detriment to you because they believe or suspect you have or might make a disclosure.
We can pursue allegations that a person caused or threatened detriment to you, but we would need your assistance to investigate the allegations.
Breaching a whistleblower’s confidentiality
The CATSI Act makes it illegal (through civil penalty) for someone to disclose your identity, or information likely to lead to your identification, as a whistleblower unless it is an ‘authorised disclosure’.
An ‘authorised disclosure’ of your identity or information is a disclosure made:
- to the Registrar
- to the Australian Securities and Investments Commission
- to the Australian Prudential Regulation Authority
- to the Australian Federal Police
- to a member of a State or Territory police force
- with the consent of the discloser.
In a corporation’s investigation of the concerns raised in a disclosure, it must take reasonable steps to ensure that information likely to lead to your identification is not disclosed.
We can pursue allegations that a person caused or threatened detriment to you, but we would need your assistance to investigate the allegations.