Civil compensation arising from detrimental action under the Public Interest Disclosure Act 2022
Published on December 20, 2023 by Scott Dougall and Sabrina Morell
The Public Interest Disclosure Act 2022 (PID Act 2022) is designed to provide protections to “whistleblowers” who report serious wrongdoing by a public agency.
The legislation provides protections from detrimental action being taken against the whistleblower by the agency or employees of the agency. This article explores how civil compensation is arising from detrimental action under the Public Interest Disclosure Act 2022.
If unlawful detrimental action is taken against the maker of a public interest disclosure, they are entitled to seek compensation. Under Section 35 of the PID Act 2022, a person can initiate Court proceedings and seek compensation for injury, damage or loss suffered as a result of a detrimental action taken against them. Section 35(6) of the PID Act 2022 states that damages recoverable may include exemplary damages.
Proceedings for compensation can be brought against the person who took the detrimental action, including both the individual and the employer. Section 36 of the PID Act 2022 makes clear that an employee is a person liable for detrimental action taken by an employee.
The Defendant will be liable in damages if a Court is satisfied that:
- They had the requisite suspicion, belief and awareness when taking the detrimental action that;
- the person has made, may have made, may make or proposes to make a PID, or
- is, has been or may be investigating, proposes to investigate serious wrongdoing (note, the investigation does not need to be in response to the making of a voluntary PID).
- The suspicion, belief or awareness of the Defendant was a contributing factor in taking the detrimental action.
Some notable differences to the 1994 Public Interest Disclosure Act make the prospect of civil litigation arising from detrimental action more likely under the PID Act 2022. These include the enhancement of damages to include compensation for exemplary damages. Further, Section 38 provides an immunity from a costs order for a claimant unless their claim was brought vexatiously or without reasonable cause, or the claimant’s unreasonable act or omission caused the other party to incur costs. The Defendant would bear the onus of establishing these matters and an immunity from a costs Order is presumed.
Importantly, Division 2 of the PID Act 2022 reverses the onus of proof for compensation proceedings. The person seeking compensation must show that they suffered detriment by the action, or inaction, of the Defendant. Once this has been satisfied, the onus shifts to the Defendant who must prove that they either did not have the suspicion, belief, or awareness of a PID having been made or if they did have a suspicion, awareness, or belief of a PID being made, this was not a contributing factor in taking the detrimental action.
The PID Act 2022 does stipulate a requirement for claims to be brought within three years after the detrimental action offence is alleged to have been committed. It is noted the Public Interest Disclosure Act 1994 did not specify a limitation period for civil claims.
The PID Act 2022 also makes clear that a claim under this legislation does not affect another right or remedy available to the person as a result of the relevant detrimental action. This extends to and includes redress sought in relation to dismissal from employment for the purposes of the Industrial Relations Act 1996.
The legislation also makes clear that this claim is not a liability in tort.
If you have any questions on PID, please contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page.
