From the legislation reviewed, the trend discerned is that a disclosure will qualify for protection if it satisfies three conditions:

(i) The disclosure must be made in good faith, that is, based upon a reasonable belief in the truth of the disclosure that impropriety is about to take place or has taken place;

(ii) Only certain types of information can form the subject matter of a disclosure for the purpose of qualifying for protection under the acts;

(iii) The disclosure must be made to specified persons or bodies and in the manner specified. This pattern is exemplified by the provisions from various jurisdictions.

Where a person commits an offence by disclosure

Where the person who makes a disclosure commits an offence by making it, legislation typically excludes it from protection. Such situations arise where the whistle-blower makes the disclosure in contravention of legislative provisions which protect the secrecy of the information disclosed.

As such, Section 43B (3) of the UK ERA provides that a disclosure of information is not qualifying disclosure if the person making the disclosure commits an offence by making it.

How disclosures areto be dealt with

As noted earlier, legislation usually designates persons to receive disclosures and to carry out investigations where necessary. Of the legislation examined, Canada has the most elaborate scheme in this respect.

This is so in that the act establishes the office of the public sector integrity commissioner, as a dedicated authority for the purpose of carrying out various functions under the act, including the investigation of disclosures.

The legislation of other jurisdictions such as Tasmania and Victoria provides for disclosures to be made to an ombudsman in certain circumstances. Some of the relevant provisions can be examined to illustrate how these matters have been treated.

Witness protection

The issues related to whistle-blower legislation are quite complex. The question of witness protection, for example, though not an obvious consideration, might arise in situations where a whistle-blower becomes a witness in proceedings relating to the information disclosed. This is so, particularly having regard to the widespread hostility towards individuals perceived as informers.

In addition, there is an unfortunately high level of distrust of police in particular, and officers of the state in general. This heightens the need for members of the public to be assured that adequate safeguards are being implemented to secure their protection.