Chapter 2Views on the bill
2.1This chapter outlines key issues raised in evidence provided to the committee related to the bill, including:
secrecy provisions, access to legal and professional assistance, and public and external disclosures;
the exclusion of personal work-related conduct from the scope of the Public Interest Disclosure (PID) scheme;
the exclusion of parliamentary staff from the scope of the PID scheme;
other issues; and
commentary on broader whistleblower protection reforms.
2.2This chapter also provides the committee's view on the bill and makes recommendations in relation to the bill.
General views
2.3Submitters broadly supported the proposed reforms. In particular, submitters welcomed the introduction of a positive duty on principal officers and a requirement that principal officers provide ongoing training and education around the PID scheme. Others welcomed the expansion of the definition of detriment (consistent with the protection available to corporate whistleblowers) to include other forms of discrimination, harassment, or psychological harm.
2.4Some submitters perceived that the bill did not go far enough in strengthening the PID framework. For example, the Law Council of Australia (Law Council) described the reforms in the bill as 'modest', and the Uniting Church submitted that the provisions of the bill provide 'only minimal reforms compared to those needed in the whistleblower space'. Mr Kieran Pender said the bill was 'a worthwhile start, but it demonstrates that we need so much more'. Dr Helen Haines MP described the proposed reforms within the bill as 'nowhere near sufficient on their own'. Alliance Against Political Prosecutions argued that the provisions of the bill 'fall short of fulfilling the needs for adequate whistleblower protections in Australia'.
2.5Several submitters also noted apparent inconsistencies between legislation addressing public and private whistleblower protections, as well as between different pieces of legislation targeting the public sector. Some also described the state of whistleblower legislation as 'fragmented' or 'inconsistent'.
2.6Mr Pender cautioned that it may be 'artificial to distinguish too narrowly between different categories—public sector, private sector, non-profit sector. We see a lot of overlap'.
2.7The joint submission from the Human Rights Law Centre, Centre for Governance and Public Policy at Griffith University, and Transparency International Australia (joint submission) pointed to 'seismic changes' over recent years in international whistleblower protection standards, and called for 'a far-reaching parliamentary inquiry' as a precursor to whole-of-government whistleblower reforms.
2.8GetUp! submitted that a 'more comprehensive approach to reforming federal whistleblower laws' was needed, and attached 2445 contributions from GetUp! members that were broadly critical of the scope and ambition of the bill.
Secrecy provisions, access to legal and professional assistance, and public and external disclosures
2.9Under the Public Interest Disclosure Act 2013 (PID Act), a whistleblower (or a potential whistleblower) is permitted to divulge to a legal practitioner information pertaining to a disclosure for the purposes of seeking legal or professional assistance in relation to the matter. Exceptions to this are that the information does not consist of intelligence information and that classified information can only be shared with a lawyer who holds an appropriate level of security clearance.
2.10The bill would confirm that it is not an offence for a lawyer providing legal advice or professional assistance to disclose identifying information relating to a disclosure. The Australian Lawyers Alliance expressed support for these provisions, submitting:
Whistleblowers and their legal representatives should never have to contend with the possibility of being prosecuted and imprisoned… for seeking or providing legal advice relating to whistleblower public interest disclosures.
2.11However, the Law Council noted that the bill does not otherwise address concerns related to secrecy provisions and disclosures. In particular, the Law Council pointed to the absence of steps taken to publish a list of security-cleared lawyers from whom disclosers could seek legal and professional assistance, as recommended in the Moss Review. The Australian Human Rights Commission (Human Rights Commission) similarly supported this recommendation, noting that it was not aware of any such list being made publicly available.
2.12The Law Council and Human Rights Commission both recommended consideration be given to amending the bill to remove the requirement for disclosers to seek assistance only from security-cleared lawyers, or that, if that provision was retained, it be amended to apply only to information classified as 'secret' or 'top secret'.
2.13The Law Council also noted that '[m]embers of the Australian Intelligence Community (AIC) are the least protected group of public officials under the [PID Act] because of the special status accorded to "intelligence information"'. The Law Council submitted that it is problematic that such information may in no circumstances be disclosed externally by a whistleblower—even to security-vetted legal professionals:
[This does not] strike the right balance between the principles of accountable government, the rights of individuals to seek legal advice and the need to protect national interests.
2.14The Law Council recommended consideration be given to amending the bill to provide that Inspector-General of Intelligence and Security be empowered to authorise a discloser or possible discloser to seek legal advice on matters concerning intelligence information. Other witnesses recommended consideration be given to reforming the bill to enable whistleblowers or potential whistleblowers be permitted to seek other forms of support, including from union representatives or health and mental health professionals.
2.15On the secrecy provisions within the PID Act, the Human Rights Commission submitted that further reforms may be needed to better balance the public interest with the need to protect Commonwealth information.
2.16In her submission, Dr Helen Haines MP called for the bill to be amended to better balance the public interest with respect to external and emergency disclosures to the media, parliamentarians, and other third parties.
2.17Dr Dennis Muller described as a 'structural weakness' the bill's lack of provisions to specifically permit external disclosures to journalists in the event of unreasonable delays to an investigation. The Alliance Against Political Prosecutions similarly called for provisions that would allow for public disclosures in the event of a disclosure not being appropriately investigated.
2.18Relatedly, several submitters raised concerns that the provisions of the proposed bill would not enable whistleblowers to seek professional advice from a union, employee assistance programme, or professional association. Maurice Blackburn Lawyers noted that: '[i]nserting protections where a disclosure is made to a lawyer would be consistent with the whistleblower protection provisions of the Corporations Act'.
2.19The Civil and Public Sector Union submitted that the bill should be amended to enable disclosers (or would-be disclosers) from seeking professional support, in accordance with recommendation 25 of the Moss Review. The Civil and Public Sector Union further noted that a recent Technical Meeting of the International Labour Organisation found that protected avenues for whistleblowers to seek trusted advice constituted an important element of an effective whistleblower protection regime.
Scope of coverage
2.20In accordance with recommendations in the Moss Review, the bill proposes to limit the scope of disclosable conduct to focus on fraud, serious misconduct, and corrupt conduct. Some submitters welcomed the narrowing of the PID framework's scope. Other submitters and witnesses raised two main concerns with the way in which the bill would do this, as detailed below.
Personal work-related conduct
2.21First, as discussed in Chapter 1, the bill would remove from the scope of the PID scheme disclosures relating solely to personal work-related conduct. The Explanatory Memorandum explains this change as being designed to focus the PID scheme on 'significant integrity wrongdoing', as well as the existence of more appropriate mechanisms and processes for addressing such conduct.
2.22Ms Helen Wilson told the committee that the proposed exclusion of conduct that was solely related to personal work-related conduct:
…would result in more efficient and expeditious handling of such matters. It would enable agency resources to be used more effectively to the benefit of both general complaints and whistleblowers for whom the PID scheme is intended. The commission is of the view that individuals making complaints that fall outside of the scope of disclosable conduct will continue to be protected from reprisals ultimately through the [APS Code of Conduct], as behaviour amounting to reprisal action would constitute a prima facie breach of the code.
2.23The Australian Federal Police expressed support for these changes, noting exemptions for significant conduct that would undermine public trust as well as reprisal action. The joint submission also supported the intent of the carve-out, but cautioned that the provisions in the bill that give effect to this exclusion are vague and overly broad, particularly in relation to disclosures that may consist of a mix of personal work related conduct and other wrongdoing.
2.24Mr Graeme Edgerton told the committee, 'it does make sense to separate out matters that are workplace grievances from substantive issues that whistleblowers are raising.'
2.25Professor AJ Brown disputed that the concept of 'solely' was given full effect through the provisions of the bill, cautioning that 'anything that has a whiff of a workplace related grievance is very often naturally, inadvertently or intentionally pushed down the wrong type of track for its resolution'.
2.26Mr Graham Droppert stated in relation to the exclusion of personal work-related conduct that 'the insertion of the word "only" or "solely" would strengthen the overall objectives [of the bill]'. Mr Droppert told the committee this proposed insertion 'takes away a degree of uncertainty' for prospective whistleblowers.
2.27Ms Celeste Moran from the Attorney-General’s Department told the committee that, 'while we don't use the word "solely" in the bill, the way the provisions are drafted means they do actually have that effect'.
2.28Ms Kristin Crawford summarised the effect of the provisions of the bill related to the personal work-related exclusion:
[An authorised officer] can only decide not to allocate [a disclosure] and do nothing with it if they're satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered an internal disclosure'.
2.29The Office of the Commonwealth Ombudsman (Ombudsman) submitted: '[t]he proposed amendments may not have the desired effect of re-focusing the PID Act on integrity related wrongdoing due to the broad nature and subjectivity of the exceptions'. If the bill were to pass, the Ombudsman anticipates that it will receive an increase in complaints by disclosers who disagree with a matter being excluded from the PID scheme on the basis of it constituting personal work-related conduct.
2.30The Australian Lawyers Alliance submitted that the examples of personal work-related conduct that would no longer by disclosable under the reforms proposed by the bill may still be illegal misconduct that should remain disclosable.
2.31The joint submission recommended that the bill be amended to ensure consistency within the corresponding sections of the Corporations Act 2001 (Corporations Act) concerning the exclusion of personal work-related grievances. However, Maurice Blackburn Lawyers noted that there has been limited judicial consideration of this carve-out within the Corporations Act, submitting in relation to the proposed bill:
[I]t is difficult to draw a bright line distinction between personal employment grievances and alleged unlawful conduct… The Bill seeks to mark out that distinction by reference to matters that are of such significant nature that they would undermine public confidence in, or have other significant implications for, an agency.
2.32The Law Council similarly noted that the bill would redefine 'disclosable conduct' to be inherently serious in nature. The carve-out for personal work-related conduct would therefore appear to be 'otiose', they submitted.
2.33The Civil and Public Sector Union submitted that disclosures may consist of both personal work-related matters as well as disclosable conduct, noting that historically, half of all disclosures involve a mix of both.
2.34Maurice Blackburn Lawyers also raised concerns that, under the proposed reforms, attempted disclosures deemed to relate solely to personal work-related conduct would be diverted to an adversarial process outside the PID scheme (such as pursuing a complaint through the Australian Human Rights Commission or in a Court). Such prosses, Maurice Blackburn submitted, 'come at a large personal cost to the complainant and are often not fit for purpose'.
2.35Mr Parker Reeve told the committee that the proposed amendments in the bill would:
…allow disclosures that deal with personal work-related grievances or conduct to be investigated under frameworks that are better designed for the investigation of those processes, rather than not being investigated at all.
2.36Mr Reeve suggested that such matters may be better investigated as a code of conduct matter, a breach of the discrimination acts, or as a matter within the jurisdiction of the Fair Work Commission. Mr Reeve further noted that pursing such claims through the PID scheme instead of these other investigative frameworks, 'can prevent agencies from applying best practice approaches to resolving those issues and prolong disclosers' exposure to the situation they are in and the conduct they are suffering'.
Exclusion of parliamentary staff
2.37A second concern raised by submitters is the limiting of the scope of the PID scheme through the exclusion from the definition of 'public officials' in the bill of members of parliament and of persons employed under the Members of Parliament (Staff) Act 1984 (MoPS Act)(see Chapter 1).
2.38The explanatory memorandum explained this change as being in accordance with recommendation 26 of the Moss review. It further stated that:
The PID Act was not originally intended to capture allegations of wrongdoing by or about members of parliament or their staff members. This amendment confirms that position.
2.39The explanatory memorandum also noted that members of parliament and their staff would more appropriately be protected through a federal anticorruption commission, as established by the National Anti-Corruption Commission Act 2022 (NACC Act)(see Chapter 1).
2.40The Australian Public Service Commissioner, Mr Peter Woolcott AO, noted that the establishment of the Parliamentary Workplace Support Service after the introduction of the PID scheme offers an alternative avenue for parliamentary staff to raise complaints of work-related misconduct.
2.41However, the Law Council submitted that the scope of the NACC Act is 'not contiguous with that of the [PID Act]'. In particular, the definition of 'corrupt conduct' in the NACC Act is narrower than 'disclosable conduct', as defined in the PID Act, leading to a range of disclosable conduct under the PID Act falling outside the protections of the NACC (such as unreasonable, unjust, oppressive, or negligent maladministration; deception in relation to reporting; wastage of public funds; and conduct that unreasonably endangers health and safety or the environment). The Law Council therefore submitted,
By removing parliamentary staff from the [PID Act] aegis, the [bill] may result in misconduct that had hitherto been disclosable no longer being protected by any federal provisions.
2.42The Human Rights Commission also raised concerns with the exclusion of parliamentary staff from the PID scheme, submitting that 'the scope of protected disclosures that may be made under the PID Act is broader than protected disclosures that may be made under the NACC Act'. The Human Rights Commission pointed to conduct that would be disclosable under the PID Act but would be unlikely to fall within the NACC, including negligent administration, the wastage of public money or property, and conduct that unreasonably results in danger to health and safety or the environment.
2.43The Human Rights Commission therefore submitted, '[t]here do not appear to be any compelling legal reasons why [MoPS Act] staff could not be included within the scheme of the PID Act'.
2.44The joint submission noted that this exclusion renders public servants unprotected who disclose wrongdoing by parliamentarians or their staff through the PID scheme, until they also do so through the NACC.
2.45Moreover, the Independent Broad-Based Anti-Corruption Commission noted that under the reforms proposed in the bill, the PID Act would provide protections for witnesses, whilst the NACC Act would appear not to provide the same level of witness immunity.
2.46One submitter advocated that the NACC be specified as an authorised internal recipient of PID disclosures to enable better oversight of disclosures that relate to corruption issues.
2.47The Australian Lawyers Alliance submitted that MoPS Act staff should not be excluded from the PID scheme until an effective alternative process to protect whistleblowers was fully operational.
2.48However, Ms Moran told the committee that mechanisms were in place to provide 'adequate and strong protections' for parliamentary staff who make a disclosure to the NACC. 'The protections in relation to doing that are very similar, if not the same, to those contained in the PID Act', she stated.
Other issues
2.49The Law Council raised concern that, whilst the PID Act imposes a statutory (90-day) timeframe for investigations to be conducted, the bill does not provide for a statutory limit on the number of times an investigation can be extended. The Law Council proposed a non-exhaustive list of reasons to be considered when seeking a time extension. Professor Peter Tregear OAM similarly called for the bill to be amended to strengthen the investigation and reporting obligations on an agency, including by imposing a firmer statutory timeframe on agencies to report, and to require an agency investigating a disclosure to provide more detailed grounds to justify their handling and decisions relating to a disclosure.
2.50In terms of oversight of the PID scheme, the Ombudsman noted that it currently had 'limited visibility of how Commonwealth agencies handle disclosures'. Commonwealth Ombudsman, Mr Iain Anderson,told the committee that his office does not currently have a real-time oversight role. Mr Anderson noted that agencies are required to provide the Ombudsman with only a limited amount of information in relation to PID disclosures, including:
notifications when a disclosure is allocated;
notifications when an agency decides not to investigate a disclosure or not to investigate a disclosure further; and
statistical reports about the number and types of disclosures, the number of investigations conducted, and actions taken by principal officers in relation to recommendations.
2.51The Ombudsman submitted that, whilst the bill would improve aspects of its ability to oversee the PID scheme, significant obstacles would nevertheless remain, including, a lack of visibility over decisions not to investigate a disclosure; disclosure reports only being shared at the conclusion of an investigation; resource limitations within the Ombudsman; and the ability for agencies to withhold certain information.
2.52The Ombudsman further submitted:
If the intention is that [Office of the Commonwealth Ombudsman] have holistic oversight of agencies’ handling of disclosures, including the actions of supervisors and the operation of the PID scheme, further amendments and funding would be required.
2.53The Civil and Public Sector Union supported the proposed changes related to strengthening oversight of the scheme, and recommended that the Ombudsman include in its biannual report to parliament the number of investigation reports reviewed and the number of investigations in which recommendations were made.
2.54Also related to oversight of the PID scheme, the Commonwealth Ombudsman proposed that the requirement that the legislation be reviewed after five years of operation be shortened to three years after the second stage of reforms have been enacted. Further, both the Ombudsman and the Law Council submitted that the government may wish to consider amending the legislation to provide for periodic reviews of the operation of the PID scheme that would take place every three to five years.
Commentary on broader whistleblower protection reforms
2.55The committee heard evidence that extended beyond the current bill under consideration, including recommendations relating to:
consideration of the establishment of a Whistleblower Protection Authority or Commissioner;
consideration of a single law covering non-public sector whistleblowers that would improve consistency with public sector whistleblower protections, as far as possible; and
consideration of a single piece of legislation that would consolidate and make more consistent public and non-public sector whistleblower protections.
Committee view
2.56The committee welcomes the amendments in this bill and is particularly encouraged to see provisions that expand the protections for disclosers and witnesses. It also welcomes provisions which provide much-needed clarity on key provisions within the PID scheme, as well as enhancing oversight of the scheme.
2.57The committee recognises that the bill comprises the first of two stages of reforms to whistleblower protections and the PID scheme. As such, the committee welcomes, during the second stage of reforms, the government's commitment to consider the merits of establishing a federal whistleblower protection authority or commission, and to explore ways to streamline and simplify the PID scheme and accompanying legislation. The committee would also encourage further consideration of how best to ensure complementarity between the NACC and the PID schemes.
2.58The committee also notes the active and ongoing consideration being given by the Attorney-General's Department to reforming the Commonwealth's secrecy provisions, and considers this to be the appropriate avenue through which to identify amendments of the type discussed above in relation to enabling whistleblowers to access legal, professional, and other forms of assistance. The committee would welcome the government's consideration of the publication of a list of security-cleared legal professionals from whom disclosers can seek legal assistance—in keeping with the recommendations of the Moss Review—weighted against any risks associated with publicly naming security-cleared individuals.
2.59On the matter of the carve-out of personal work-related conduct from the PID scheme, the committee notes evidence from the Attorney-General's Department that the bill gives effect to recommendation 5 from the Moss Review. The committee is also convinced that conduct that is significant, serious, or systemic would still be disclosable through the PID scheme under the proposed bill. The committee is further convinced that conduct that relates solely to work-related conduct is best addressed through alternative (often less formal) processes, such as performance management or disciplinary conduct procedures.
2.60The committee recommends that the Explanatory Memorandum for the Public Interest Disclosure Amendment (Review) Bill 2022 be amended to further clarify the application of the 'personal work-related conduct' provisions.
2.61On the matter of the proposed exclusion of parliamentary staff from the PID scheme, the committee notes evidence from the Attorney-General's Department that the National Anti-Corruption Commission and other processes—including the Parliamentary Workplace Support Service—will provide appropriate mechanisms through which parliamentary staff can make disclosures. Further, the committee expects that the statutory review by the Office of the Commonwealth Ombudsman into the operation of the PID scheme will consider the interface between the PID and NACC frameworks, including any potential gaps or inconsistencies between them once they are both operational.
2.62Given the substantial upcoming changes to whistleblower protections, the committee would welcome further oversight of the PID scheme by the Parliament. In particular, the committee considers consideration should be given to conducting a periodic review into the operation of the PID scheme every five years.
2.63The committee notes the limited resources that are currently available to the Office of the Commonwealth Ombudsman to oversight the PID scheme. The committee also acknowledges the constraints faced by the Ombudsman regarding inconsistent approaches to reporting on PID disclosures and investigations it receives from Commonwealth departments and agencies.
2.64The committee recommends that the Explanatory Memorandum for the Public Interest Disclosure Amendment (Review) Bill 2022 be amended to clarify the limited role of the Office of the Commonwealth Ombudsman with respect to PID disclosure reports and investigations.
2.65The committee would also welcome consideration during future reforms of the merits of enhancing independent oversight of the PID scheme. In particular, the committee would welcome more comprehensive and timely reporting to the Office of the Commonwealth Ombudsman and Inspector-General of Intelligence and Security by agencies on the reasons for decisions not to investigate a disclosure.
2.66The committee recommends that the bill be passed.
Senator Nita Green
Chair