Civil compensation arising from detrimental action under the Public Interest Disclosure Act 2022 – Constitutional & Administrative Law

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:

1. 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).




2. 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.

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.