Australia: Whistleblower laws: what is a disclosable matter?

In our previous bulletin (see it here), we provided an overview of the new Federal whistleblower laws introduced by the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Cth).  Now it is time to get into some of the detail. On 12 March 2019, the Bill received Royal Assent meaning the regime will come into force on 1 July 2019.

In this bulletin, we look at what disclosures fall within the whistleblower protections - what is a disclosable matter?  It is a broad concept, the limits of which are not easily defined.

A quick refresh

To qualify for protection, disclosures must:

  • be made by an eligible whistleblower;
  • be made to a prescribed authority or an eligible recipient; and
  • be a disclosable matter (but cannot be a personal work-related grievance).

It is this last aspect of what is a disclosable matter that we now explore in more detail.

What do the new protections cover?

The new protections apply to the disclosure of information if the whistleblower:

"has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances",

in relation to the company or a related body corporate.  It is immediately apparent that this definition may capture a range of activity, not just outright illegal conduct.

This later observation is confirmed by the new laws providing "without limitation", the protections apply to the disclosure of information that indicates conduct that:

  • is an offence against, or contravention of, a range of specified banking, finance, corporate and insurance legislation;
  • is an offence against "any other law of the Commonwealth that is punishable by imprisonment of 12 months or more"; or
  • represents a danger to the public or the financial system.

Are there reasonable grounds to suspect?

The requirement for the discloser to have "reasonable grounds to suspect" the information has the requisite quality is an important threshold to qualifying for protection.  Though, in practice, this threshold will not be burdensome.

The word "suspect" is an ordinary word meaning to have an idea or impression.  The High Court of Australia in George v Rockett (1990) 170 CLR 104, when dealing with the issue of reasonable grounds to believe, said the issue is not one of evidential proof.  "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition", the High Court said.

The discloser does not need to know, as fact, that the information has the requisite quality.  A suspicion is likely to be reasonable if it is not fanciful, illogical or irrational. 

What is "misconduct, or an improper state of affairs or circumstances"?

There is no definition in the legislation of what is "misconduct".  There will be a danger in equating misconduct with what is serious misconduct in employment law.  The disclosure simply needs to relate to misconduct, not the more stringent concept of serious misconduct.

The Oxford Dictionary defines misconduct simply as "unacceptable or improper behaviour".  In Soliman v University of Technology, Sydney [2012] FCAFC 146, the Full Federal Court commented that misconduct should not be limited to "that conduct which is contrary to or in breach of any specific direction, rule or policy ...".  The Explanatory Memorandum makes clear that misconduct captures a broad range of conduct "whether or not it is in breach of any law" and that "may also indicate a systemic issue". 

However, in our view, what is disclosable misconduct needs to have some intelligible limits.  As the Federal Court said, "what constitutes "misconduct" is to be informed by reference to the context in which the term is employed". 

Usefully, the Australian Prudential Regulatory Authority says "misconduct may include:

  • failure to comply with a legal duty;
  • gross mismanagement or waste;
  • dishonest or unethical behaviour by an individual; or
  • fraud or other type of criminal behaviour".

The phrase "improper state of affairs or circumstances" is also not defined.  There has been no judicial consideration of the legal meaning of the phrase.  The Oxford Dictionary defines "improper" as "not conforming with accepted standards of behaviour".  Consistent with the Explanatory Memorandum, this will be a broad category of conduct.  However, it too will have some limits.

The focus of the new whistleblower regime is on corporate "wrongdoing".  As such, in our view, the regime is not about providing a forum to challenge any management decisions over which the discloser is merely aggrieved or in disagreement.  Not every management decision, even if wrong, would fall within the new regime.  Performance issues may not be misconduct.  As discussed below, personal work-related grievances are excluded.

Conduct that constitutes an offence

As said above, conduct that is an offence, or contravention, is disclosable.  This includes "an offence against any law of the Commonwealth that is punishable by imprisonment of 12 months or more". 

Offences under Commonwealth law that can carry punishment of 12 months or more would include numerous criminal offences.  It may also include reckless breaches of duty of care under work health and safety. 

Conduct that is not an offence is also captured if it is a "danger to the public or the financial system".  This category covers conduct that is a significant risk to public safety.

No personal work-related grievances

Given the broad range of conduct that is likely to fall within the expanded definition of disclosable matters, it is important to note that the new laws contain a significant exclusion.  Disclosures related to "personal work-related grievances" will not be covered by the new whistleblower protections.  Workplace grievances will remain the jurisdiction of the Fair Work Act 2009 (Cth).

A personal work-related grievance is defined as "a grievance about any matter in relation to the discloser's employment, or former employment, having (or tending to have) implications for the discloser personally".  Typical examples would include:

  • personal conflicts within the workplace;
  • decisions relating to engagement, promotion and termination of employees; and
  • ordinary workplace bullying disputes.

However, whistleblower protections do apply if the disclosure also:

  • concerns a detriment to the discloser caused by alleged victimisation; or
  • is made to a legal practitioner to obtain legal advice regarding the whistleblower provisions; or
  • has significant implications for the company and concerns alleged conduct that could be an offence, or contravention, as discussed above. The law recognises that some personal work-related grievances may involve very serious wrongdoing entitling the discloser to protection.

Our tips

Organisations need to develop clear rules and systems for the triage of disclosures to determine if:

  • the disclosure reveals reasonable grounds to suspect the alleged conduct;
  • the information disclosed concerns:
    • misconduct, or an improper state of affairs, or an alleged contravention or offence, of something more serious like a danger to the public; or
    • a personal work-related grievance.

That assessment will be critical for determining whether the whistleblower laws apply, qualifying the discloser to strict protection.  Given the serious consequences for non-compliance, any system may include some allowance or caution as a risk management device. 

However, in our view, the personal work-related grievance exclusion should be jealously protected.  To treat such matters as within the whistleblower laws will make management of employment disputes complicated and unnecessarily difficult.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions