A Queensland judge's ruling that officers engaging in oral sex in a police car is not "official misconduct" could deter public servants from blowing the whistle on their colleagues, a court has heard.
Police whistleblower Rick Flori is appealing a Brisbane Supreme Court ruling in his bullying case against his former employer that meant he was not afforded public interest disclosure protection after complaining about sexual conduct between two officers.
The former Gold Coast sergeant claimed he suffered reprisal after sending a letter to the then-Crime and Misconduct Commission alleging, in late 2009, a female police officer performed a sex act on a male colleague in a police car at a Red Rooster car park.
In the letter, Mr Flori expresses concern about "special attention" given to the female officer.
"I can see the headline: Senior police officer receives fellatio in police car," he wrote in February 2010.
Mr Flori has argued he should have been protected under the then-Whistleblowers Protection Act, which states a public officer may make a public interest disclosure about someone else's conduct if it is "official misconduct".
He is suing three officers and the Queensland government for reprisal.
But last year, Justice Helen Bowskill ruled he was not afforded whistleblower protection so his case regarding the letter cannot proceed.
"Such conduct may amount to 'police misconduct'," she said.
"The fact they are sitting in a police car, and using the car for a reason unrelated to their professional duties at the time of the sexual act, is not sufficient, in my view, to raise 'misconduct' to the level of 'official misconduct'."
Mr Flori has taken his case to the Court of Appeal, where his barrister Gavin Rebetzke asked the three judges to "reflect on the position of a public servant or police officer faced with the dilemma of whether to report wrong-doing".
He said the aim of the whistleblower legislation was to encourage people to speak up "without fear that they would be targeted with reprisal action".
"How can that public servant or police officer of integrity derive any confidence that they should chose to report wrong-doing and, in doing so, receive the protection of the law?" Mr Rebetzke said on Thursday.
He said even if the officers' sex act didn't amount to official misconduct, Mr Flori reasonably and honestly believed it did and should have been protected.
Mr Flori quit the force before being acquitted by a jury of misconduct last year after leaking footage of police bashing a handcuffed man in a police station basement in 2012.
Prosecutors alleged he leaked the footage as part of a vendetta against Senior Sergeant David Joachim, an officer involved in the arrest who was also promoted ahead of him.