A law protecting whistleblower or wrongdoer?

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A law protecting whistleblower or wrongdoer?

The Supreme Court of Victoria has confirmed that the exception in s22 of the Vic Whistleblowers Protection Act 2001 should not be so narrowly interpreted that it prevents a whistleblower and the courts from access to information likely to be critical to determining a claim.

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The Supreme Court of Victoria has confirmed that the exception in s22 of the Vic Whistleblowers Protection Act 2001  should not be so narrowly interpreted that it prevents a whistleblower and the courts from access to information likely to be critical to determining a claim. 

Such an interpretation would serve to protect the alleged wrongdoer rather than the whistleblower, in the court’s view.

[Full text of this case: S v Victoria Police [2012] VSC 374 (30 August 2012)]

Whistleblower in police force suffered reprisals
 
A police officer brought a claim against his employer under the Whistleblowers Protection Act 2001, alleging he had suffered damage because of detrimental action taken against him in retaliation for disclosures he had made about other police officers. He claimed the employer had failed to keep his complaints confidential and implement a system to protect him from reprisals.

The employer objected to producing documents with information relating to registered whistleblowers, according to s22 of the Act. The documents in question were two files from the employer’s Ethical Standards Department and a register kept by the Protected Disclosure Coordinator. An associate judge initially determined that the employer was prevented from producing the documents and dismissed the officer’s application.

Appeal to Supreme Court — order set aside
 
The officer then appealed from that order, contending that responding to a discovery request was within a broad interpretation of the functions of the Chief Commissioner under the Act. The issue for the Supreme Court of Victoria to determine was whether this was so, or whether s22 of the Act prevented the employer from producing the documents.

The court pointed out that the Act had been introduced to encourage whistleblowers to disclose improper conduct in the public sector and protect them when they do so. Maintaining confidentiality about whistleblowers was therefore critical.

The Chief Commissioner’s functions were not specifically listed in the Act, but his role is central to ensure the whistleblower scheme works; namely, that disclosures are investigated and steps are taken to prevent improper conduct, including reprisals, from continuing or happening in the future.

When a claim is brought, the Chief Commissioner needs to provide documents for the purposes of discovery according to the relevant Court Rules. If this is not done, ‘it would lead to a situation where the whistleblower who was to be protected could not gain access to critical documents which will likely be probative on the very matters that are the subject of the complaint. The effect would be to protect the alleged wrongdoer rather than the whistleblower’, Justice Ferguson said.

‘The fact that specific provision is made in s22(1)(d) and (e) of the Act such that proceedings for offences and criminal or disciplinary proceedings are not subject to the prohibition on disclosure of protected information does not mean that it follows necessarily that the prohibition must apply in the case of civil proceedings.’

Justice Ferguson also said, ‘… s108(2)(b) makes information gathered as a result of a protected disclosure admissible in a proceeding under s19. Whilst I accept that production of documents and admissibility of evidence are separate matters, it would be incongruous if the same documents that would be admissible under s108(2)(b) … would be prohibited from disclosure under s22. That cannot have been the intention of Parliament …’

The court set aside the previous order dismissing the police officer’s application for access to the whistleblower documents and granted him leave to inspect them.

S v Victoria Police [2012] VSC 374 (30 August 2012)
 
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