Additional Comments by Senator David Shoebridge
1.1At its core, protecting whistleblowers is about protecting the truth. Without a commitment to truth, which can include open and challenging contests about what is true, democracies can’t function. This is why this Bill is so important, and why this Bill has been under close scrutiny by the Standing Committee on Legal and Constitutional Affairs.
1.2The Public Interest Disclosure Act 2013 (PID Act) is one of the critical ways we protect whistleblowers in this country. In the ten years since it was enacted there have been significant developments internationally and domestically that have not been incorporated in the national scheme. In that time there have been whistleblower protections inserted into the Corporations Act 2001 that are in significant ways superior to those in the PID Act. We have also seen the 2016 Moss Report into the PID Act sit on the shelf unimplemented by the former Government.
1.3This has left whistleblowers with far fewer protections than they deserve. Accordingly, this new Parliament has an obligation to address these concerns as a matter of urgency.
1.4These additional comments will not cover every issue raised in the submissions, they will focus on three areas where the Chair’s report has not done justice to the serious matters raised in the consultation on the Bill. They are:
1.6This was an issue raised by the great majority of engaged stakeholders in the inquiry, including the CPSU, Alliance Against Political Prosecutions, the Uniting Church, Maurice Blackburn Lawyers, Australian Lawyers Alliance, the Human Rights Law Centre, Griffith University and Transparency International. The essence of the concern is that the proposed drafting in ss29A and 29(2) of the Bill does not implement recommendation 5 of the Moss Report. Moss’s recommendation was simple and balanced, it read:
That the definition of ‘disclosable conduct’ in the PID Act be amended to exclude conduct solely related to personal employment-related grievances, unless the Authorised Officer considers that it relates to systemic wrongdoing. Other existing legislative frameworks are better adapted to dealing with and resolving personal employment-related grievances.[1]
1.7The rationale behind this recommendation is that if a complaint is solely in relation to a workplace issue, then it is better being dealt with under standard workplace measures and not the PID Act. The PID Act which contains quite a rigid response structure and strict confidentiality can be a barrier to resolving these matters within a workplace.
1.8Moss found that too many PID Act complaints were simply workplace issues and therefore the scheme, and workplace relations within the public sector, would be enhanced by removing matters that are 'solely' work related personal concerns. The reason that Moss recommended limiting the exclusion to matters that are 'solely' work-related personal concerns is because he recognized that once someone blows the whistle, the line between the original public disclosure and any adverse action taken against the whistleblower after that is very hard to separate.
1.9The evidence before Moss, like the evidence before this committee, makes it clear that for many whistleblowers once they make their concerns public too often they face reprisal actions in the workplace. This can include seemingly unrelated disciplinary action, demotions or even dismissal that are purportedly for matters unrelated to their whistleblowing but in truth are intimately connected.
1.10There is real merit in Moss’s balanced recommendation, however the Bill goes well beyond Moss’s recommendation and lacks the appropriate balance. The proposed s29(2) and s29A exclude 'work-related-conduct' matters from the operation of the PID Act. Critically though, the Bill does not limit this to 'solely' work-related matters and it includes such a broad definition that the exclusion far exceeds Moss’s more balanced proposal.
1.11While proposed s29(2) excludes personal work-related matters from the s29A carve out where they are taken as reprisal action against the whistleblower, as multiple submissions pointed out this provides a largely toothless protection. Since the inception of the PID Act there has not been a single successful prosecution for reprisal action. This is for one very simple reason, the protections in the Act do not work and are not being fixed by this Bill.
1.12As the Chair’s report notes, representatives from the AG’s Department responded to these criticisms of the Bill by asserting that it was the intention of the drafters to implement recommendation 5 of the Moss Review in full. This is a welcome statement of the intention behind the Bill, but as the history of the PID Act makes clear, unless written in black and white law, intentions either good or bad aren’t much help to whistleblowers.
1.13In order to succeed on a reprisal case, the whistleblower must prove that the reason why the adverse action was taken was because of their blowing the whistle. The fact that the adverse action followed blowing the whistle is not sufficient. In practice it is next to impossible to prove the motivations of management were related to the whistleblowing because this requires the subjective intentions of the decision makers to be scrutinised.
1.14This is why other jurisdictions, and also the more modern protections in the Corporations Act, provide a reverse onus for these offences. In those cases, the decision maker needs to prove the adverse action was not taken because of the whistleblowing. This is a far fairer process and recognizes the often extreme resource and tactical disadvantages that whistleblowers face when taking on a well-resourced Commonwealth Agency.
1.15As numerous submissions made clear, if Parliament enacts ss29(2) and 29A as drafted this will remove essential PID Act protections from whistleblowers going forward. It will leave them more vulnerable to reprisal actions and will make the gap between the recently enacted protections under the Corporations Act and the PID Act widen. This is a poor public policy outcome.
1.16This is why the Greens will be seeking to work across the Parliament to remedy these provisions. This will include seeking to amend the proposed ss29 and 29A to make them reflect Recommendation 5 of the Moss Review and to more closely match the superior protections contained in the Corporations Act. This will deliver on two goals: greater protections and greater consistency.
1.17Multiple submissions made it clear that without a National Whistleblower Commission even the best laws will still leave Whistleblowers at an extreme legal and resourcing disadvantage. Increasingly best international practice for whistleblower protections includes an independent agency that’s role is to help whistleblowers navigate complex laws and provide them with legal and administrative support. A case in point is the Netherlands House for Whistleblowers.
1.18Unfortunately, the Chair’s report does not do justice to the strength of these submissions or the centrality of this recommendation for serious reform of the PID Act. The submissions received included the following critical points:
The establishment of a whistleblower protection authority is one of the most significant areas of reform needed, across all sectors of Commonwealth whistleblowing law.[2]
1.19The importance of a Whistleblower Protection Authority was also canvassed by GetUp:
GetUp would like to highlight the urgency and priority of establishing a whistleblower protection authority: a federal statutory authority that acts as an independent champion for whistleblowers, tasked with enforcing whistleblower protections and thereby reducing the negative repercussions faced by those speaking out.
GetUp notes a whistleblower protection authority was first proposed by a Senate Committee in 1994, and promise by the Australian Labor Party in 2019. There is international precedent for Australia to learn from in both the United States and the Netherlands.[3]
1.20The role of a Whistleblower Commissioner in furthering the overall aims of transparency and accountability was explained by the ALA as follows:
The ALA contends that additional reform to establish a Whistleblower Protection Authority or Commissioner also has the potential to significantly bolster transparency and accountability within federal institutions, aiding the restoration of Australians’ trust in those institutions.[4]
1.21This report was a missed opportunity for government members to reach across the aisle and put in place a consensus recommendation for a Whistleblower Commission, the work for which needs to start now.
1.22The urgency behind this Bill is that the NACC will open its doors on 1 July 2023 and, without significant reform, people who approach the NACC with corruption concerns will not be adequately protected. This matter was canvassed by Professor AJ Brown in his evidence to the Committee as follows:
The second [key area of concern] is that, given these amendments are intended to trigger protections that will help support the commencement of the National Anti-Corruption Commission, there is a question over whether corruption whistleblowers from within the Public Service will be fully protected directly if they blow the whistle on corruption within their agency that touches either parliament or parliamentary staff. That's reflected in our submission.[5]
1.23It was also covered in the joint submission from the Human Rights Law Centre, Griffith University and Transparency International Australia, as follows:
Recommendation 4: That given the Government’s priority of improving public sector PID Act protections in time to support commencement of the National Anti-Corruption Commission in 2023, the Public Interest Disclosure Amendment (Review) Bill 2022 be extended to make clear that the full protections of the PID Act apply to:
Any public official who discloses corrupt conduct as defined by the National Anti-Corruption Commission Act 2022 (currently, internal disclosures of corrupt conduct by or involving members of parliament or third parties still do not trigger the protections);
... the Bill does not address—instead it extends—the problem that no public servant who blows the whistle on wrongdoing by elected members of parliament or their staff currently receives protection, because ‘disclosable conduct’ under the PID Act must be engaged in by ‘an agency’ or a public official within an agency. This still does not include the Parliament.
The recent partial exception to this is that any disclosure of corrupt conduct to the National Anti-Corruption Commission (a ‘NACC disclosure’) now attracts the protections of the Act, including conduct by parliamentarians and staff (s.26(1A) as inserted by the NACC Consequential Amendments Act 2022).[6]
1.24A core problem with this aspect of the scheme is that the NACC Act protections are inadequate. While adverse action taken in response to a NACC complaint could found a criminal prosecution (albeit this is unlikely given the evidentiary issues set out above) the NACC Act anti-reprisal provisions only contain that criminal offence. What is missing from the NACC Act are any of the remedies and civil protections, such as orders for compensation and reinstatement, that are found in the PID Act. This is a matter that should be addressed by the government with appropriate amendments in the Senate.
1.25As the Chair’s report makes clear there are other aspects of this Bill that advance protections for whistleblowers and will have a marginal positive impact to the operation of the scheme. However, those marginal protections are not a justification for such a sweeping removal of protections as proposed in ss29(2) and 29A of this Bill.
1.26This is not an academic exercise. Across the country, at all levels of government, whistleblowers who have called out wrongdoing are being prosecuted, sacked and driven out by vindictive governments and vindictive management action simply for telling the truth. As the law currently stands, they already have too few protections and we cannot allow them to be further eroded by this or any other Bill.
1.27Finally, I note that while this reform process slowly unfolds, multiple prosecutions are continuing against prominent whistleblowers at extraordinary cost to public finances and public confidence in open government. It will give little comfort to potential whistleblowers to see the laws reformed while these prosecutions continue. Ending these prosecutions must be considered an essential part of law reform.
1.28These are matters of real substance that are already impacting on whistleblowers across the country. The Senate must not hear this evidence and then refuse to act. The Greens are committed to working with all parties in the Parliament to address these concerns in the broader public interest.
Senator David Shoebridge
Australian Greens Justice Spokesperson
Footnotes
[1]Philip Moss, Review of the Public Interest Disclosure Act 2013, 15 July 2016, recommendation 5.
[2]Joint Submission from Human Rights Law Centre, Centre for Governance and Public Policy at Griffith University, and Transparency International Australia, Submission 7, p. 10.
[3]GetUp!, Submission 23, p. 2.
[4]Australian Lawyers Alliance, Submission 12, p. 9
[5]Professor AJ Brown, Professor of Public Policy and Law, Griffith University and Board Member, Transparency International Australia, Committee Hansard, 27 February 2023, p. 8.
[6]Human Rights Law Centre, Griffith University, and Transparency International Australia, Submission 7, pp. 11–12.
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