This Bills Digest has been republished to include some additional contextual material.

The Bills Digest at a glance

Purpose

•    The Bill amends the Commonwealth public sector whistleblower protection regime.
•    The current Public Interest Disclosure Act 2013 permits a selected range of public interest disclosures by persons who are ‘public officials’ or former public officials in the Commonwealth public sector, regarding suspected wrongdoing (‘disclosable conduct’) by another public official or Commonwealth agency. The Act requires agencies to investigate disclosures. If disclosures fall within the protection regime of the Act, the whistleblower has certain legal protections against reprisal actions and immunity from civil, criminal and administrative liability.
•    The Bill proposes the first of two tranches of reforms to the PID Act, promised by the incoming Government, as a response to Moss Review of the Act, published in 2016.
• The Bill implements 21 of the 33 recommendations of the Moss Review, in addition to recommendations from two other Inquiries (in 2017 and 2019–20).  
• The first major change is to remove disclosures relating to personal work-related disputes and conduct from the scope of ‘disclosable conduct’ under the PID Act.
•    The second inserts a positive duty to support PID disclosers and witnesses, upon principal officers of Commonwealth agencies.
• Related are reforms to enable greater information-sharing, removing a general secrecy offence and facilitating agencies to appropriately share information relating to a disclosure to enable it to be investigated by the most suitable agency.
• Additional reforms are proposed to increase and improve the role of the Commonwealth Ombudsman and the IGIS in having oversight of the handling of PID disclosures.
• A second tranche of changes to the PID Act is promised by the Attorney-General.

Key Issues

• A key change is to remove disclosures relating solely to personal work-related disputes and conduct from the scope of ‘disclosable conduct’. The drafting is convoluted and involves three exclusions from an exemption.
• Proposals around exclusion of work-related disputes from the PID Act have been critiqued on the basis that they go beyond the Moss Review recommendations.
• Other criticism has flowed from the fact that this Bill does not propose a National Whistleblower Protection Authority or Commissioner. The Government has promised to open a round of public consultation on that question.  

Purpose of the Bill

The purpose of the Public Interest Disclosure Amendment (Review) Bill 2022 (the Bill) is to make changes to the legislative framework for the Commonwealth public sector whistleblower protection scheme in response to review recommendations.

The Bill proposes amendments to the Public Interest Disclosure Act 2013 (the PID Act) and related (contingent) amendments to the National Anti-Corruption Commission Act 2022 (NACC Act).

The broad rationale is to support the Government’s law reform agenda in public administration, and its focus on integrity. The amendments to the PID Act are also linked to recent anti-corruption enactments. As the Attorney-General explained when introducing the Bill in November 2022: ‘an effective public sector whistleblowing framework is essential to … support disclosures of corrupt conduct to the National Anti-Corruption Commission [NACC]’.[1]

The National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 (NACC Consequential Act)—which received Royal Assent in December 2022—will make amendments to the PID Act (relating to the inter-relationship of anti-corruption investigations and public interest disclosure (PID) investigations).[2] This Bill proposes a further round of amendments to the PID Act to provide additional protections to whistleblowers, and to simplify administration for Commonwealth agencies regarding PID matters.  

The Bill proposes the first of two tranches of reforms to the PID Act, promised by the incoming Government, to implement selected recommendations of the first statutory review of the Act, by Philip Moss AM (the Moss Review), tabled in Parliament in October 2016.

As the Moss Review explained:

The PID Act is intended to bring forth and investigate disclosures of serious wrongdoing within agencies, to ensure they are investigated, to enable agencies to fathom the nature of this wrongdoing, and to address it. Disclosures made under the PID Act shine a light on wrongdoing: these disclosures help agencies understand and tackle pockets of wrongdoing and the culture enabling it.[3]

Public interest disclosures (whistleblowing)

Public interest disclosure, otherwise known as ‘whistleblowing’, can be defined as a ‘disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action’.[4]

It is argued that whistleblowers are important ‘because they can promote an informed society and provide an essential and valuable service to the public by exposing wrongdoing’.[5] Among the most famous whistleblower cases internationally is that of Daniel Ellsberg who leaked the ‘Pentagon Papers’, an act that arguably contributed to a more rapid end to the Vietnam War.[6]

Technology has opened opportunities for anonymous external whistleblowing, with some newspapers offering source anonymity for whistleblowers to communicate with journalists.[7]

Purpose: Implementation of Recommended Reforms

The Government advises that the Bill will implement:

•    21 of the 33 recommendations of the Moss Review[8] 
•    Recommendations 10 and 11 of the Parliamentary Joint Committee on Intelligence and Security Report Inquiry into the Impact of the Exercise of Law Enforcement and Intelligence Powers on the Freedom of the Press of 2019-2020 and
•    Recommendations 6.1 and 6.3 of the Report of the Parliamentary Joint Committee on Corporations and Financial Services on the Inquiry into Whistleblower Protections in the Corporate, Public and Not-For-Profit Sectors of 2017.[9]

Additional future amendments

It is understood that the Government intends whistleblower protection law reform to be rolled out in two tranches (or stages).

The Attorney-General has stated that the reforms would aim to simplify the PID scheme and improve protections for public sector whistleblowers to make them more ‘effective and accessible’.[10] In November 2022, he explained that this Bill containing the first tranche of reforms was designed to:

ensure immediate improvements to the public sector whistleblower scheme are in place before the [National Anti-Corruption Commission] NACC commences in mid-2023.[11]

The second tranche of reforms is envisaged to be presented after passage of the present Bill and in the words of the Attorney, will involve ‘redrafting the … Act to address the underlying complexity of the scheme’.[12] The Attorney has undertaken to consult with the public during 2023 on these reforms and to issue ‘a discussion paper on whether there is a need to establish a Whistleblower Protection Authority or Commissioner’.[13]

Structure of the Bill

The Bill amends the PID Act and the NACC Act.

The Bill has four Schedules that make amendments as follows:

Schedule 1, which has seven Parts:

•    Part 1 amends the PID Act to remove protection for disclosure of information that concerns ‘personal work-related conduct’ from the whistleblower protection legislation.
•    Part 2 makes amendments relating to the handling, allocation and investigation of disclosures in situations such as where another agency is better able to handle a disclosure, or where other law or power would be more appropriate for an investigation of the disclosure.
•    Part 3 makes a number of amendments relating to reprisals against whistleblowers and witnesses, by extending protections to witnesses and also by extending the definition of reprisals.
•    Part 4 would make amendments to facilitate the reporting and sharing of information, principally by repealing the general secrecy offence.
•    Part 5 proposes amendments to clarify the roles of the Ombudsman and the IGIS in relation to complaints about an agency’s handling of a protected disclosure (PID).
•    Part 6 would provide for the handling and transfer of disclosures from one agency to another after there has been a machinery of government (MOG) change, in other words, after functions are transferred from one Commonwealth agency to another.
•    Part 7 would amend the definitions of ‘agencies’, ‘public officials’ and ‘principal officers’ to include reference to Commonwealth entities and to clarify that judicial officers, members of Parliament and their staff are not public officials.

Schedule 2 of the Bill makes additional minor amendments to the PID Act including updating the section giving an outline of the legislation, and other amendments aimed at consistency. It would also provide for a further review of the Act to be completed 5 years after these amendments commence.

Schedule 3 clarifies how amendments proposed in Schedules 1 and 2 would apply. 

Schedule 4 amends the National Anti-Corruption (NACC) legislation and the PID Act to support the operation of the NACC. The amendments aim to ensure consistency of protection for disclosures across the anti-corruption and whistleblower protection laws.

Background

PID Act 2013

By 2013, the Commonwealth was the only Australian jurisdiction that did not have legislation dedicated to facilitating public interest disclosures and protecting whistleblowers, with the states and territories having already enacted such laws in advance of the Commonwealth.[14] Prior to 2013, there were numerous unsuccessful prior attempts, in private members Bills, to introduce comprehensive Commonwealth whistleblower protection laws.[15]

The Public Interest Disclosure Bill 2013 (PID Bill) was introduced by Mark Dreyfus during his first term as Attorney-General. (Further detail on the PID Bill is available in several Library publications).[16]

The PID Bill passed both houses on 26 June 2013,[17] with an expressed aim of establishing ’a single comprehensive scheme to support inquiry into wrongdoing in the Commonwealth public sector and those who report it’.[18]

The PID Bill was criticised by the Greens and Andrew Wilkie. Mr Wilkie stated that the Government Bill:

weaves a web of extraordinarily complicated definitions to negatively frame the circumstances in which public interest disclosures are protected.[19]

Senator Milne of the Australian Greens expressed the view that:

This proposed legislation essentially sets up trip wires at every turn and one wrong step means the whistleblower is out on their own, exposed to lengthy and stressful legal retribution … Whistleblower protection must encourage those hesitant about speaking out, but there are so many specific requirements for a disclosure in this bill that I fear it will do the opposite …[20]

Outline of the PID Act

This section provides the reader with a recap of the present PID Act, which has been in force for nearly a decade. A useful outline of the PID Act is set out in a factsheet and flowchart, prepared by the Commonwealth Ombudsman.[21] A more detailed yet ‘plain English’ explanation of the PID Act is provided by the Ombudsman’s publication Agency Guide to the PID Act: Version 2, April 2016.

Objects

The objects of the PID Act are:

(a) to promote the integrity and accountability of the Commonwealth public sector; and

(b) to encourage and facilitate the making of public interest disclosures by public officials; and

(c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

(d) to ensure that disclosures by public officials are properly investigated and dealt with.[22]

Application

The PID Act is a framework applying to the reporting of wrongdoing by public officials in the Commonwealth public sector. The Act states that it ‘provides a means for protecting public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed’.[23]

The Act operates in parallel with Commonwealth law for whistleblower protection in the private sector in the Corporations Act.^[24]  

The PID Act only applies to the APS employees and other ‘public officials’ of the Commonwealth public sector (section 69).

In broad terms, the PID Act provides for:

•    qualified protection of disclosers

•    investigation of disclosures when made internally
•    administration of protected disclosure investigations.

Source: 2021–2022 Annual Report, Commonwealth Ombudsman, 36.

The Act requires Commonwealth agencies to investigate and respond to disclosures that meet the test of being ‘public interest disclosures’.  It provides protections to public officials who make qualifying disclosures.

The protection of external disclosures is also subject to a requirement that they be ‘on balance, not contrary to the public interest’.[25]

Agencies subject to the Act

The Act applies to Departments, Executive Agencies and prescribed authorities.[26] According to the Commonwealth Ombudsman there are 176 agencies subject to the PID Act.[27]

Four categories of disclosure

The PID Act protects four types of ‘public interest disclosure’ (PID), namely:

•    internal disclosures
•    external disclosures
•    emergency disclosures, and 
•    legal practitioner disclosures.[28]

As explained in the Act: 

Broadly speaking, a public interest disclosure is a disclosure of information, by a public official, that is:

• a disclosure within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (referred to as “disclosable conduct”); or
• a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
• a disclosure to anybody if there is substantial and imminent danger to health or safety; or
• a disclosure to an Australian legal practitioner for purposes connected with the above matters.

However, there are limitations to take into account the need to protect intelligence information.[29]

Who can disclose: a Public Official

Only those defined as a ‘public official’ may make public interest disclosures under the Act.[30] The definition is also relevant to the persons whose conduct can be the subject of a public interest disclosure.

Public official is defined in section 69 of the PID Act and includes:

•    an APS employee, or Secretary in, a Department
•    an APS employee in, or Head of, an Executive Agency
•    a principal officer of, or member of the staff of, or an individual who constitutes, a prescribed authority[31]
•    a member of a prescribed authority (other than a court)
•    a director of a Commonwealth company
•    a member of the Defence Force
•    an Australian Federal Police appointee
•    a Parliamentary service employee (within the meaning of the Parliamentary Service Act 1999)
•    an individual who is employed by the Commonwealth otherwise than as an APS employee and who performs duties for a Department, an Executive Agency or prescribed authority
•    certain statutory officeholders.[32]

Contractors

Can a contractor use the Commonwealth whistleblower law? The answer is that this depends on them meeting several legislative tests. These are firstly to be a ‘public official’, and secondly, to be disclosing ‘disclosable conduct’.

In specified circumstances, contractors fall within the definition of ‘public official’ for the purposes of the PID Act.  This is if they are:

•    an individual who is a contracted service provider for a Commonwealth contract, or
•    an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes of the Commonwealth contract.[33]  

The application of the PID Act to contractors also depends on the definition of disclosable conduct, which includes conduct ‘engaged in by a contracted service provider for a Commonwealth contract, in connection with entering into, or giving effect to, that contract’.[34]

Internal disclosure

The main route for disclosures provided by the PID Act is ‘internal disclosures’ within government which are made to ‘authorised internal recipients’.[35] Whistleblowers can also disclose directly to their supervisors.^[36]

Further, disclosures can also be considered to be internal disclosures, when made outside of an agency, if made to the Commonwealth Ombudsman, the Inspector General of Intelligence and Security (IGIS).[37] (This Digest explains the roles of the Ombudsman and IGIS in more detail below).Despite perceptions of the general public that whistleblowers take their concerns to the media, the emphasis of the PID Act is on internal, rather than external disclosure, at least in the first instance. As summarised by the Moss Review: ‘External public interest disclosures can be made in a narrow range of circumstances and usually only after an internal disclosure has been made’.[38] The Bills Digest on the PID Bill 2013 explained: Internal disclosures are central to the PID scheme as there is an underlying assumption in the Bill that public interest disclosures should be ‘internal’ unless there is sufficient justification for the disclosure to be ‘external’.[39]

Three preconditions for a valid internal disclosure

To make a valid internal PID, and thus receive the protections and immunities under the PID Act, a person disclosing suspected wrongdoing must:

1. be a current or former public official

2. make their disclosure to the correct person within an Australian Government agency (their supervisor or an authorised internal recipient)

3. provide information that they believe tends to show, on reasonable grounds, ‘disclosable conduct’ within an agency or by a public official.[40]

The process for receiving, assessing and either rejecting or investigating disclosures of information under the PID Act are set out in short form in the flowchart reproduced from the Ombudsman’s Reference Guide to the Act.

External disclosure

The Act provides a pathway for whistleblowers to make external protected disclosures to ‘any person’ outside the agency (e.g. to the media or an MP) in limited circumstances. The Act only enables: ‘a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements’ [emphasis added].[41]

Public interest considerations include for example consideration of whether the disclosure would promote the integrity and accountability of the Commonwealth public sector, and the nature and seriousness of the conduct.^[42]

Emphasis on Internal Disclosure

The emphasis of the PID Act is on internal disclosures within government rather than supporting and encouraging whistleblowers to ‘go public’. As explained by the Attorney-General in his 2013 second reading speech:

A main purpose of the bill is to establish clear procedures for allegations of wrongdoing to be reported by public officials and for findings of wrongdoing to be rectified. The emphasis on the scheme is on the disclosure of wrongdoing being reported to and investigated within government. To this end, the bill places obligations on principal officers of agencies to ensure that public interest disclosures are properly investigated and that appropriate action is taken to deal with recommendations relating to their agency. In short, these are obligations to act on disclosures of wrongdoing and to fix wrongdoing where it is found. A well-implemented and comprehensive scheme should lead to a discloser having confidence in the system, and remove incentive for the discloser to make public information to parties outside government.[43]

The Act does not protect external disclosure of intelligence information (or conduct). Within the six intelligence agencies, only internal disclosures are permitted (see below).

Emergency disclosure

There is also provision for ‘emergency disclosures’.  Where there is a substantial and imminent danger to health and safety or to the environment, the internal disclosure can be by-passed and disclosures can immediately be made public in accordance with specified conditions.[44]

Protections

Public officials who make a disclosure in accordance with the PID Act have protections from reprisal actions and immunity from civil, criminal and administrative liability for making the disclosure. In addition, no contractual or other remedy or right may be enforced or exercised against the individual on the basis of that disclosure.^[45]

The Act specifies examples of reprisals, including dismissal, injury in employment, discrimination in employment, or alteration of employment.[46]

Oversight

The Commonwealth Ombudsman and the Inspector General of Intelligence and Security (IGIS) are the statutory authorities responsible for oversight of the PID Act. These bodies are also responsible for promotion of the PID Act, and monitoring and reporting on its operation.[47]

The Act uses the term investigative agency as a catch all for the Ombudsman, the IGIS and any; agency prescribed under the PID rules. No agency has been prescribed.[48]

Role of the Commonwealth Ombudsman

The public interest disclosure functions of the Ombudsman are set out in the PID Act and section 5A of the Ombudsman Act 1976 and include:

•    acting as an ‘investigative agency’ and ‘authorised internal recipient’ under the PID Act[49]
•    investigating disclosures under the PID Act or using separate powers under the Ombudsman Act
•    assisting principal officers, authorised officers, public officials and former public officials in relation to the operation of the PID Act[50]
•    conducting educational and awareness programs relating to the PID Act for agencies, public officials and former public officials[51]
•    assisting the IGIS with its functions under the PID Act[52]
•    determining standards relating to: disclosure procedures, conduct of PID investigations, and standards for PID investigation reports, and standards for PID reporting by agencies and
•    receiving notices from agencies relating to the allocation of disclosures and decisions not to investigate disclosures.[53]

Further, the way a disclosure has been allocated or investigated, or the allocation or investigation decision, may be the subject of a complaint under the Ombudsman Act.

Intelligence agencies and the PID Act

Under the Act, intelligence information (as defined in section 41) is exempted from the public (external) disclosure provisions. Intelligence information cannot be the subject of an external disclosure (such as provision of information to the media or an MP).[54] Likewise it cannot be the subject of ‘emergency disclosure’ or ‘legal practitioner disclosure’. Intelligence information can only be the subject of an internal disclosure.[55] The Bill does not propose to alter that position.

Inspector-General of Intelligence and Security (IGIS)

The Inspector-General of Intelligence and Security (IGIS) has oversight of the 6 intelligence agencies subject to the PID scheme,[56] and in relation to the intelligence functions of the Australian Criminal Intelligence Commission (ACIC) and the Australian Federal Police (AFP).[57] It has the same allocation, investigation and education functions as the Commonwealth Ombudsman.[58]

Conduct engaged in by intelligence agencies and by public officials of these intelligence agencies which relates to the proper performance of their functions and powers is excluded from the PID Act.[59]

IGIS responsibilities include overseeing the actions of intelligence agencies to ensure they comply with the PID scheme, as well as assisting current and former public officials of intelligence agencies in relation to the operation of the PID Act.

The PID Act in Practice

Judicial observation

In 2019, Justice Griffiths of the Federal Court gave a less than complimentary assessment of the readability of the PID Act, describing it as ‘technical, obtuse and intractable’.[60]

In a judgment regarding an unsuccessful application by a whistleblower employee of the Department of Parliamentary Services, he recounted:

In a somewhat understated submission, the respondents described the PID Act as involving “a number of complex interlocking substantive provisions and definitions”.  The legislation might more accurately be described as technical, obtuse and intractable …This may reflect the multiple compromises which have been struck in weighing the competing public and private interests.  Those competing interests are reflected in the objects of the PID Act, as set out in s 6 … It is acknowledged that reconciling these competing objects is not an easy exercise and is one for the Parliament.  But the outcome is a statute which is largely impenetrable, not only for a lawyer, but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy [emphasis added].[61]

Extent of wrongdoing disclosed

The statutory Moss Review (2016), discussed below, conducted after the Act had been in operation for only two and a half years, found that the PID Act ‘has enabled disclosure of fraud, serious misconduct and corrupt conduct, but only to a limited extent’.[62]

More detailed data about allegations raised in PIDs since the completion of the Moss Review is evident in the Annual Reporting of the Ombudsman and the IGIS.

Data: Recent number of disclosures

In 2021–22, 257 PIDs were received across the Commonwealth public sector (compared with 333 in 2020–21, a 23 per cent decrease). A further 428 disclosures were assessed as not meeting the requirements of the PID Act, and not considered to be public interest disclosures, compared with 400 in 2020–21 (7 per cent increase).[63]

In terms of PIDs lodged within the jurisdiction of the IGIS, there were 10 PID Act disclosures (received or allocated) during 2021-22, and 16 PID disclosures during 2020-21.[64]

Data: Nature of allegations

The Annual Reporting on the operation of the PID Act by the Commonwealth Ombudsman provides insights into the broad categories of allegations made of disclosable conduct during 2020-21 (marked in navy blue in graphic) compared to 2021-22 (marked in light blue in graphic). The data indicates that ‘maladministration’ and ‘conduct that may result in disciplinary action’ were the two most common categories of allegation made.[65]

Are the laws working for whistleblowers?

Critics have argued that reforms should offer more specific support to whistleblowers aimed at addressing what is often the high personal and financial cost of making a whistleblowing disclosure.[66]

According to Professor A. J. Brown and Kieran Pender:

Research shows that a substantial proportion of whistleblowers suffer serious repercussions for doing so, of whom barely a fraction receive any protection. This injustice has a chilling effect… Among the few claims for remedies or compensation brought under any federal law – including less than a dozen cases under the PID Act since 2013 – almost none have been successful.[67]

Protecting Australia’s Whistleblowers: The Federal Roadmap (2022) made the following findings based on detailed primary sources research:

Griffith University’s Whistling While They Work 2 project … surveyed over 17,000 employees from 46 organisations, including 5,500 whistleblowers and 3,500 managers and governance staff who observed or dealt with whistleblowing cases … [it] found no improvement in the outcomes for public sector whistleblowers [since 2008] … according to the managers and governance staff, 56 per cent of public interest whistleblowers suffered serious repercussions – whether as indirect/collateral damage, or in 30 per cent of cases, as direct harm including adverse employment actions, harassment or intimidation. This was despite the fact that in over 90 per cent of cases, managers and governance staff assessed the whistleblower as being correct and deserving of the organisation’s support … only half (49 per cent) of these whistleblowers were identified as having received any remedy for the detriment they suffered – even marginal or insufficient remedies – despite its seriousness. Even fewer (43 per cent) of those who suffered serious direct harm received any remedy. Overall, less than six per cent received any compensation for the employment, health or personal impacts. The low proportion of meaningful remedies for whistleblowers, even when managers identify that they suffered serious repercussions and deserved support, shows clearly that the rights intended by law were not translating into reality.[68]

Legal Costs

Section 18 of the existing Act departs from the usual rule regarding the allocation of legal costs (which would normally mean the losing party is required to pay the costs of the winner), to provide some measure of reassurance in advance to a prospective discloser. It provides that in Federal Court proceedings (including appeals) where an applicant seeks orders for an order preventing or injuncting reprisals, or requiring compensation, an apology or reinstatement or other protections, the applicant cannot be ordered to pay the other party’s costs except where the proceedings were brought vexatiously or without reasonable cause, or where unreasonable actions were taken that caused legal costs to be incurred.

The present Bill does not alter this position in the Act in relation to costs.

Moss Review

The first statutory review of the PID Act was completed in July 2016 (Moss Review).[69]

It was undertaken by Philip Moss AM, the former Integrity Commissioner and head of the Australian Commission for Law Enforcement Integrity (ACLEI) between 2007–14.

The Moss Review was established in January 2016 under section 82A of the PID Act, which  required a review of the PID Act to be commenced within two years of commencement of the Act.

Terms of Reference

The terms of reference were to examine:

1. the impact of the Act on individuals seeking to make disclosures in accordance with its provisions;

2.  the impact of the Act on agencies, including any administrative burdens imposed by investigation and reporting obligations in the Act;

3.  the breadth of disclosable conduct covered by the Act, including whether disclosures about personal employment-related grievances should receive protection under the Act; and

4.  the interaction between the Act and other procedures for investigating wrongdoing, including Code of Conduct procedures under the Public Service Act 1999 and the Commonwealth's fraud control framework.[70]

Main Findings

The Moss Review found that the PID Act had only been partially successful, with few individuals who had made disclosures feeling supported, and agencies finding the scheme difficult to apply. It described the perspective of both whistleblowers and that of Commonwealth agencies, finding:

The experience of whistleblowers under the PID Act is not a happy one. Few individuals who had made PIDs reported that they felt supported. Some felt that their disclosure had not been adequately investigated or that their agency had not adequately addressed the conduct reported. Many disclosers reported experiencing reprisal as a result of bringing forward their concerns.

The experience of agencies is that the PID Act has been difficult to apply. Most agencies noted that the bulk of disclosures related to personal employment-related grievances and were better addressed through other processes. Agencies noted also that the PID Act’s procedures and mandatory obligations upon individuals are ill-adapted to addressing such disclosures…

The relative newness of the PID Act framework may be part of the cause, yet the Review concludes that the current PID Act provisions impair the effective operation of the framework. In this respect, the Review notes that there are two principal challenges:

• The PID Act’s interactions with other procedures for investigating wrongdoing are overly complex. Investigations into disclosures are often isolated from other integrity and accountability legislative frameworks by the operation of the secrecy offences. Key investigative agencies have been omitted. There is also a perception that the PID Act framework is legalistic, making it difficult to resolve a PID.
• The kinds of disclosable conduct are too broad, rather than being targeted at the most serious integrity risks, such as fraud, serious misconduct or corrupt conduct. The Review found that while the PID Act is helping to bring to light allegations of serious wrongdoing, these disclosures are in the minority. Most PIDs concern matters that are better understood as personal employment-related grievances, for which the PID Act framework is not well suited.

The Review considers that, by adopting legalistic approaches to decision-making, the PID Act’s procedures undermine the pro-disclosure culture it seeks to create.[71]

Recommendations

The Moss Review made 33 recommendations to improve the operation of the PID Act. A summary table of recommendations is provided at the Appendix, which indicates which recommendations have been addressed in the Bill.

Moss explained that ‘the Review’s recommendations are intended to encourage and instil a pro-disclosure culture [within Commonwealth agencies]’.[72] In summary, the recommendations included:

•    better targeting the scheme to focus on significant wrongdoing such as fraud, serious misconduct and corrupt conduct
•    providing better support for disclosers, or potential disclosers, by enabling them to get help and advice from lawyers, and other professional support services
•    providing witnesses to the wrongdoing with the same protections as disclosers from detriment, and immunity from civil, criminal and administrative liability
•    strengthening the ability of the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security to scrutinise and monitor decisions of agencies about disclosures
•    appointing additional investigative agencies under the PID Act
•    redrafting the Act with a ‘principles-based’ approach (as compared to prescriptive procedural requirements)
•    including as permissible additional external disclosure when disclosure within an agency has not been actioned as required by the statute
•    inserting an explicit requirement to accord procedural fairness to a person against whom wrongdoing is alleged before making adverse findings about that person, and
•    retaining criminal offences for revealing identifying information but repealing the prohibitions on not using and not disclosing protected information.[73]

Other inquiries and reactions

The Bill also seeks to respond to recommendations of two other Inquiries.

•    On 30 November 2016, the Senate referred an Inquiry into Whistleblower Protections in the Corporate, Public and Not-for-profit Sectors to the Parliamentary Joint Committee on Corporations and Financial Services. That Committee tabled its report in the Parliament in September 2017 (the PJCCFS Report). The inquiry primarily examined the private sector whistleblowing scheme under the Corporations Act but some recommendations related to the public sector whistleblowing scheme under the PID Act. The Bill responds to Recommendations 6.1 and 6.3 of the PJCCFS Report. On 4 July 2019, the Parliamentary Joint Committee on Intelligence and Security commenced an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press, as a result of a referral by then Attorney-General, Christian Porter. The Committee reported  in August 2020 (the PJCIS report). The Bill responds to Recommendations 10 and 11 of the PJCIS report.

National Anti-Corruption Commission laws

On 30 November 2022, the National Anti-Corruption Commission Act 2022 (NACC Act) and National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 (NACC Consequentials Act) passed the Parliament. These Acts received Royal Assent on 12 December 2022. It is intended that the main provisions of the NACC legislation will commence in mid-2023 on a day to be fixed by proclamation.[74]

The passage of the NACC legislation is relevant to the present discussion of proposed amendments to the PID Act, for two reasons:

•    the NACC Consequentials Act will make amendments to the PID Act and  
•    there is a need for the system for investigation of disclosures under both schemes to operate together in parallel but without unnecessary complexity and confusion.  

Further detail on the NACC Bills can be found in the relevant Bills Digest published in November 2022.

In terms of the interaction of the NACC legislation and the proposed amendments to the PID Act, the Attorney-General has indicated that the Government’s aim is for the PID amendments to be in place by the time the NACC is established in mid-2023.[75] The second reading speech for the present Bill states that the Bill will amend the NACC legislation to reflect [the proposed] amendments to whistleblower protections in the PID Act ‘to ensure both regimes provide strong protections for whistleblowers’.

Overview of disclosure provisions of the NACC legislation

The National Anti-Corruption Commission Act 2022 provides a range of protections to persons who provide evidence or information about a corruption issue to the NACC. This is designed to enhance the effectiveness of the NACC by encouraging people to provide information about corruption issues without fear of retribution.

Part 4 of the NACC Act deals with protections for disclosers.

Section 23 outlines what is meant by a NACC disclosure. Section 24 affords immunity from civil, criminal and administrative liability to any person who provides information about a corruption issue to the NACC. Sections 29 and 30 provide for protection against reprisals or threat of reprisals. These are complementary protections to those provided under the PID Act (paragraph 10(1)(a) and subsection 19(1)).

The NACC Act also provides protection from the enforcement of contractual or other remedies against a person due to their NACC disclosure (paragraph 24(1)(b)), which is equivalent to paragraph 10(1)(b) of the PID Act.

Another relevant provision of the NACC Act is section 35, concerning mandatory referral of PID Act disclosures, which provides that staff members of Commonwealth agencies who become aware of certain corruption issues in the course of performing functions under the PID Act are required to refer those corruption issues to the NACC Commissioner.

Committee consideration

Legal and Constitutional Affairs Committee

The Bill was referred on 1 December 2022 to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry. The Committee had received 23 submissions by early February 2023. Some of these submissions are discussed below. At the time of writing, the Committee was due to report by 14 March 2023.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills has reported on its initial consideration of the Bill.[76] The Committee sought the advice of the Attorney-General on a number of matters, some of which are discussed below under Key issues and provisions. 

Policy position of non-government parties/independents

Liberal-National Coalition

As a member of the Joint Select Committee on National Anti-Corruption Commission Legislation, Senator Paul Scarr stated [emphasis added]:

We heard some very strong testimony that there needs to be reform with respect to the management of whistleblowers, in particular, so that whistleblowers, whether they are in the public sector or the private sector, are given the support and guidance they need in order to effectively discharge the important role which they conduct and carry out in our civic society. I think the evidence is there that, at this point in time, there's a maze of laws that need to be navigated by whistleblowers. As someone who used to be a whistleblower officer for a major company in the private sector, I think it's absolutely important that whistleblowers have the courage to put up the red flag with respect to issues and should be given support and should be able to get the guidance they need to discharge their important role in our civic society.

This may suggest that the Coalition supports some degree of reform to laws governing whistleblower protections, although it is not clear if the Coalition endorses the measures adopted by the Bill.

Greens

Justice portfolio spokesperson for the Greens, Senator David Shoebridge, said the Bill ‘excludes whistleblower complaints with a mixture of employment elements’, which he claims goes a step further than the related recommendation from the Moss Review.[77]

The Guardian reported on Shoebridge’s view that: 

Labor’s whistleblower bill goes too far in excluding personal conduct such as sexual harassment complaints from protection … Examples in the bill of conduct that could no longer be the subject of a whistleblower complaint include interpersonal conflicts, bullying or harassment; disputes about promotions; terms and conditions of employment; and disciplinary action including suspension or termination.[78]

Crossbench

At the time of debate of the NACC legislation in 2022, a group of cross-benchers called for a Whistleblower Protection Commissioner.[79]

In particular, Independent MP Helen Haines has continued to advocate establishment of a whistleblower protection commission. Her submission to the Committee inquiry into the current Bill refers to the need to provide legal support to whistleblowers. She submits:

The formation of an independent whistleblower protection commission is critical to support whistleblowers who are navigating the legal system. This was a key pillar of my 2020 Australian Federal Integrity Commission Bill and received support in the Advisory Report for the Joint Select Committee examining the NACC Bill. A Whistleblower protection commission would operate similarly to the Fair Work Ombudsman or human rights commissions, and should provide legal support to whistleblowers, enforce whistleblower protection laws and implement whistleblower protections[80]

Dr Haines also suggested that Parliament should:

Vest the Fair Work Commission with new jurisdiction to conciliate whistleblowing claims against public and private employers to ensure easier, consistent access to remedies.[81] 

During debate over the NACC legislation, Dr Haines stated ‘I don’t want to see a powerful corruption commission set up without whistleblower protections. I can’t rest as a parliamentarian until I know whistleblowers will be protected. We’ve seen plenty of examples where they come to grief.’[82]

Teal Independent, Kate Chaney, also stated during the second reading debate on the NACC legislation that:

the priority amendments to the Public Interest Disclosure Act need to be substantive and work together with later amendments to support disclosure of relevant information with necessary protection.

Andrew Wilkie

During debate on the NACC Bills in November 2022, Andrew Wilkie stated: ‘the PID Act is seriously deficient and urgently in need of reform’.[83]

Moreover, during private members’ business, Mr Wilkie moved that the House call on the Government to:

(a) urgently reform the Public Interest Disclosure Act 2013 and Corporations Act 2001 to ensure that protections for whistleblowers are strong, comprehensive and fit for purpose; and

(b) establish an empowered and well-resourced Whistleblower Protection Commissioner to facilitate the effective implementation and enforcement of whistleblower protections.

Lambie Alliance

During debate on the NACC legislation, Senator Lambie expressed concern about whistleblower protections for journalists, stating that:

This is a grey area when it comes to journalists, and that worries me considerably. Without them, many things never come out into the open.  

Senator David Pocock

Senator David Pocock indicated his support for strong whistleblower protection laws, by helping Griffith University’s Centre for Governance and Public Policy, Transparency International and the Human Rights Law Centre launch a major report on the topic co-authored by AJ Brown and Kieran Pender in November 2022.[84]

Senator Pocock also stated during debate on the NACC legislation in 2022 that:

Whistleblower protections are fundamental to ensuring integrity. I welcome the whistleblower reforms to be introduced at the end of this week and call on the government to act as quickly as possible to establish a whistleblower protection commissioner and provide whistleblowers with the protection they deserve. There should be really clear processes and pathways for people in public service and in the private sector to come forward with information that may well be politically inconvenient and that may be, frankly, embarrassing for Australians but is crucial if we are to continue to improve the open democracy we have and to have all the benefits of living in such a system.

Position of agencies, experts, interest groups and stakeholders

IGIS

The Inspector General of Intelligence and Security (IGIS) made a submission to the Committee inquiry into the Bill. It outlined its role in terms of oversight of PID disclosures from the intelligence agencies. It stated that the IGIS received ten public interest disclosures about the conduct of the intelligence agencies during 2020-21. Further it stated:

In terms of the amendments contained in the Bill and their impact on the IGIS' role under, and oversight of, the PID framework, the IGIS does not have any specific issues to raise for the Committee's consideration. [85]

Australian Human Rights Commission

The Australian Human Rights Commission, suggested that staff of MPs and Senators (under the Members of Parliament (Staff) Act 1984 (MOPS Act)) be given the option to make protected public interest disclosures under the PID Act. It stated:

For the reasons given in the Set the Standard report into Commonwealth parliamentary workplaces, the Commission does not support the proposal in the Bill to clarify that the PID Act does not apply to parliamentary staff. The Commission agrees with the comments made in the report of the 2009 parliamentary inquiry that led to the PID Act that parliamentary staff may have insider access to information, be in a position to observe serious conduct contrary to the public interest and face risks of reprisal for speaking out. They should be supported to do so and provided with the protections afforded by the PID Act. The Commission recommends that parliamentary staff should be included as ‘public officials’ in the PID Act.[86]

Victorian IBAC

The Victorian Independent Broad-Based Anti-corruption Commission (IBAC) commented on the proposal of the Bill to remove MPs and staff engaged under the MoPs Act from the definition of ‘public official’. It noted:

The effect of removing Members and MoP Staff from the definition means they will need to make disclosures under the National Anti-Corruption Commission Act 2022 (NACC Act) to be protected against any civil, criminal, or administrative liability.[87]

Human Rights Law Centre

Senior Lawyer at the Human Rights Law Centre and co-author of a recent report on whistleblowing, Kieran Pender, stated:

The amendments to reform the PID Act are an important first step to better protect and empower Australian whistleblowers … But they are just that - a first step. These technical changes make administrative improvements but do not deal with fundamental issues.[88]

Mr Pender is one of the authors of a detailed contribution to the debate on whistleblower laws published late in 2022 by the Griffith University’s Centre for Governance and Public Policy, Human Rights Law Centre and Transparency International, in the form of a report calling for more far-reaching reform of what is described as Australia’s ‘incomplete and messy’ patchwork of whistleblower laws.[89] The report:

urges the government to establish a federal whistleblower protection authority to oversee and enforce Australia’s whistleblower protections, create a new federal law to consolidate patchy safeguards for private sector whistleblowers and stronger protections for those who make disclosures to the media and members of parliament. [90]

Professor A. J. Brown

Professor A. J. Brown, Professor of Public Policy and Law, Griffith University, has a long record of publication in the field of whistleblower protection research. He has led six Australian Research Council projects into public integrity and governance reform, including three into public interest whistleblowing, and the 2020 ARC Linkage Project, 'Australia's National Integrity System: The Blueprint for Reform'. He is also a Fellow of the Australian Academy of Law.[91] In a June 2022 interview with ABC’s The Business programme, he said:

Our laws are still very reliant on whistleblowers themselves having the legal resources [and] the money to be able to go to court and fight for their own protection. A big gap is the lack of a whistleblower protection authority.[92]

In an opinion piece on the Bill, published in November 2022 Professor Brown argued:

However worthwhile, the “priority amendments” recommended by a now out-of-date 2016 review involve few steps towards addressing the deeper defects in the laws. Most of those 2016 recommendations were designed to make it easier for agencies to navigate their roles, more than improve the protections.[93]

Professor Brown said Australia had ‘rapidly fallen behind’ other democratic countries when it came to protecting whistleblowers. ‘Complex laws, full of loopholes and lacking practical support, are not fulfilling their purpose of protecting those who speak up’, Brown said.[94]

Financial implications

The Explanatory Memorandum to the Bill states:

Some of the proposed amendments contained in this Bill would impact the respective workloads of the Ombudsman and the IGIS.[95]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[96]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment on the Bill.[97]

Key issues and provisions

Schedule 1—Main amendments

• Part 1 - Personal work-related conduct

Part 1 of Schedule 1 to the Bill proposes amendments to create a new category of conduct, namely ‘personal work-related conduct’, and to remove it from the scope of ‘disclosable conduct’.

Disclosable Conduct

The meaning of ‘disclosable conduct’ is important as it sets the boundaries for when public officials may make (internal or external) public interest disclosures under section 26.

‘Disclosable conduct’ only includes conduct of an agency, public official, or contracted service provider for a Commonwealth contract.^[98]

The types of disclosable conduct are conduct that:

•    contravenes a Commonwealth, state or territory law
•    in certain circumstances, contravenes a law in force in a foreign country
•    perverts the course of justice or involves corruption of any other kind
•    constitutes maladministration including conduct based on improper motives, or that is unreasonable, unjust or oppressive, or is negligent
•    is an abuse of public trust
•    is fabrication, plagiarism or deception in relation to scientific research
•    results in wastage of public money or public property
•    unreasonably results in a danger to health or safety or unreasonably results in or increases a risk of danger to health or safety
•    results in danger to the environment or increases the risk of danger to the environment
•    is of a kind prescribed by the Public Interest Disclosure Rules (PID Rules).[99]

Disclosable conduct is also:

•    conduct where a public official abused his or her position, and
•    conduct that could give reasonable grounds for disciplinary action.[100]

It is immaterial whether the disclosable conduct in question occurred before or after commencement of the PID Act; whether the agency involved has ceased to exist; or whether the particular public official or contract service provider involved in the conduct no longer hold these particular positions.[101]

Non-disclosable matters

Conduct is not disclosable if it relates to political or expenditure matters with which a person disagrees.^[102] Attempted whistleblowing on the grounds of disagreement with government policy or priorities is not protected by the Act. As set out in section 31:

conduct is not disclosable conduct if it relates only to a policy or proposed policy of the Commonwealth Government; or action that has been, or is proposed to be taken by a Minister … or amounts, purposes or priorities of expenditure or proposed expenditure relating to such a policy … or action with which a person disagrees.

Policy intent

The aim of these amendments is to narrow the range of conduct that can be reported, disclosed or otherwise be the subject of a whistleblower complaint. The aim is to exclude complaints about minor ‘personal’ issues from the PID scheme. This is evident from the second reading speech, which states an intent ’to focus the Act on integrity wrongdoing, such as fraud and corruption’.[103] 

The Government asserts that these amendments implement Moss Recommendations 5 and 6. These advocated ‘a stronger focus on significant wrongdoing’ and ‘the general exclusion of personal employment-related grievances’.^[104] The Moss Review recounted:

Submissions received from agencies noted that the overwhelming majority of disclosures concerned issues like workplace bullying and harassment, forms of disrespect from colleagues or managers, or minor allegations of wrongdoing … The Review recommends that the legislation redefine the scope of disclosable conduct to focus on fraud, serious misconduct and corrupt conduct. This approach is not to suggest that agencies should ignore other forms of wrongdoing or workplace conflict. The Review notes that such matters are better resolved through less formal processes available through existing administrative and statutory schemes, such as performance management, merits review, or disciplinary conduct procedures.^[105]

Narrowing the scope of disclosable conduct may have administrative benefits for the 176 Commonwealth agencies who can receive PID disclosures and decide upon and investigate them. This will be the case if the new provisions are easy to understand and apply.

Review recommendations and corresponding Item Number in Schedule 1 to the Bill

New category of exclusion

Items 3 and 4 of Schedule 1 provide that ‘personal work‑related conduct’ (‘PWRC’) is excluded from the definition of ‘disclosable conduct’ in section 29 of the PID Act .

The meaning of ‘personal work‑related conduct’ is defined in new section 29A, inserted by item 4, as follows:

conduct (by act or omission) engaged in by a public official (the first official) in relation to another public official (the second official) that:

occurs in relation to, or in the course of, either or both of the following:

the second official’s engagement or appointment as a public official;

the second official’s employment, or exercise of functions and powers, as a public official; and 

has, or would tend to have, personal implications for the second official.

Examples of PWRC to be excluded

Item 4 gives the following examples of personal work‑related conduct:

•    conduct relating to an interpersonal conflict (including, but not limited to, bullying or harassment)
•    conduct relating to a transfer or promotion
•    conduct relating to terms and conditions of engagement or appointment
•    disciplinary action taken
•    suspension or termination of employment or appointment
•    other conduct that would give rise to review rights under section33 of the Public Service Act 1999.[107]

Conduct not excluded: Reprisals

The exclusion of personal work-related conduct is modified by Item 3, which inserts new subsection 29(2A). It provides that three types of PWRC will remain within the ambit of ‘disclosable conduct’.  These are exemptions from the proposed exclusion of personal work-related conduct as disclosable conduct.

The first is where the conduct would constitute taking a reprisal against another person. New paragraph 29(2A)(a) provides that reprisal conduct is not excluded from the Act. The Second Reading speech indicates that PWRC which ‘amounts to a reprisal’ is not intended to be excluded from the list of ‘disclosable conduct’.^[108]

Background: Reprisal provision

Section 13 of the PID Act defines ‘what constitutes taking a reprisal’. It provides that a person takes a reprisal if the person by act or omission causes any detriment to another person (the second person) because they believe or suspect that the second person or any other person made, may have made or proposes to make a public interest disclosure, and that belief or suspicion is the reason, or part of the reason, for the act or omission.^[109]

Detriment is defined to include any disadvantage including, but not limited to, dismissal, injury in relation to employment, alteration of an employee’s position to their detriment and discrimination between an employee and other employees of the same employer (s.13(2)).

Background: Moss Review data on reprisals

Some 75% per cent of respondents to Moss Review’s online survey who had made an internal disclosure stated they had experienced reprisal after making a PID.^[110] The Ombudsman also published relevant data: 

In 2021–22, Commonwealth agencies reported 52 claims of reprisal, an increase from 27 the previous year. The most common types of conduct alleged were bullying, disadvantage to employment and, unreasonable management action. Agencies reported that, on investigation, no claims were substantiated.^[111]

Conduct not excluded: public confidence or significant implications for an agency

There are two additional proposed exemptions from the broad exclusion of PWRC.

New paragraph 29(2A)(b) provides that where the PWRC is ‘of such a significant nature that it would undermine public confidence in an agency (or agencies)’, then it is not excluded, and remains subject to the disclosure regime.

New paragraph 29(2A)(c) clarifies that where PWRC ‘has other significant implications for an agency (or agencies)’ it is not excluded.

Comment

This group of amendments proposes narrowing the type of disclosable conduct under the Act.

Firstly, however the definition of PWRC is complex and opaque. The Bill offers no guidance on the phrases ‘conduct of such a significant nature’ and ‘significant implications’.

Secondly, both the Second Reading Speech and Explanatory Memorandum employ terms not in the Bill. The Speech says disclosures of PWRC can still be investigated ‘where it is symptomatic of a larger, systemic concern within an agency.’ ^[112] However, the Bill does contain the term ‘systemic wrongdoing’ or ‘systematic concern’.

Thirdly, the phrase suggested by Moss Recommendation 5 to exclude ‘conduct solely related to personal employment-related grievances’ is not employed in the Bill.^[113] 

It is useful to revisit the recommendations of the Moss Review in detail. Related text of the Moss Review was couched in terms of an additional recommendation - although was unfortunately not numbered as such. Yet it remains highly relevant:

The Review recommends that the PID Act be amended to adopt a general exclusion for personal employment-related grievances. These amendments will need to ensure that in cases when a disclosure that includes both an element of personal employment-related grievance, as well as an element of other wrongdoing, the latter element could still be the subject of a PID. These amendments should also be reviewed after their implementation to ensure that they achieve the policy intention. ^[114]

Proposed narrowing of ‘conduct that could result in disciplinary action’

The Bill proposes to narrow the types of wrongdoing that can be subject of a PID by excluding less serious breaches of the APS Code of Conduct, such as those which would not involve reasonable grounds for dismissal. This is to implement Recommendation 7 of the Moss Review. 

As discussed above, the definition of disclosable conduct in section 29 of the PID Act includes conduct that could give reasonable grounds for disciplinary action.[115] Item 2 repeals and replaces paragraph 29(2)(b), to provide that conduct which could give reasonable grounds for disciplinary action is only disclosable conduct if it could give reasonable grounds for termination.

Comment: Intermingled disclosures

The Moss Review discussed the likelihood that—in some instances—matters that on first examination can be characterised as ‘personal’ issues may still also raise broader issues of agency maladministration or agency wrongdoing. It notes:

The Review became aware that, occasionally, a personal employment-related grievance can be symptomatic of a larger, systemic concern, such as discriminatory employment practices or nepotism. Such concerns should attract the protection of the PID Act. To ensure that these matters can be the subject of a disclosure, the Review recommends that Authorised Officers be granted discretion to treat a personal employment-related grievance as a disclosure under the PID Act if they consider it relates to a systemic issue.^[116]

The Review stated:

These amendments will need to ensure that in cases when a disclosure that includes both an element of personal employment-related grievance, as well as an element of other wrongdoing, the latter element could still be the subject of a PID. These amendments should also be reviewed after their implementation to ensure that they achieve the policy intention.^[117]

Position of stakeholders

Public Service Commissioner

The Australian Public Service Commissioner Peter Woolcott, expressed support for the PWRC changes, in a submission to the Legal and Constitutional Affairs Committee inquiry into the Bill:

Legislating this change … will provide immediate and much-needed clarity for all those in the APS who engage with the PID scheme … [T]he administrative burden on agencies will nonetheless decrease significantly as complaints regarding personal employment-related grievances or lower-level misconduct are moved to the most appropriate handling framework …^[118]

Greens

Greens spokesperson on Justice, Senator David Shoebridge, said that the Bill ‘excludes whistleblower complaints with a mixture of employment elements’, saying that this goes further than the exemption proposed by the Moss Review.^[119]  He said: ‘the carve out for employment-related matters is set at far too high a level … We know that whistleblowers too often lose their jobs or their careers from speaking out, so we can’t have a PID scheme that excludes all employment disputes’.^[120]

Broader research-informed perspective

In 2008, researchers led by Professor Brown noted that it is difficult to define and identify what are purely ‘personal’ or ‘private’ grievances within an agency, stating: 

it is important that organisational systems recognise the degree to which personal and public interest matters are intertwined, otherwise, issues of public interest can go overlooked and employees might be left subject to reprisals simply because personal interests are also involved.^[121]

Not infrequently, whistleblowers have been targeted with personalised criticism and pressure by organisational management. Sometimes attempts are made to characterise whistleblowing as misguided actions of an individual with a personal grudge, character failings or even psychiatric issues.^[122]

Referral of a whistleblower for psychiatric assessment sometimes can represent a form of retaliation, according to Kenny et al. in the Journal of Business Ethics. This is because the stigma associated with ‘mental illness’ in society ‘can be used by retaliatory organizations seeking to discredit a whistleblower’.^[123] Fotaki et al found that some ‘organizations position whistleblower subjects as mentally unstable and unreliable individuals, to undermine their claims’.^[124] 

In relation to the UK whistleblower protection legislation, British barrister, John Bowers stated that it is important to ensure that legislative drafting does not generate an organisational incentive to discredit whistleblowers:

One area of tension lies between the interest in confining the legislation’s protection to those responsibly acting in the public interest, and a concern as to the chilling effect if protection is uncertain. The most obvious example lies in the test for good faith, which focusses on motive. Whilst those who act other than in the public interest are therefore not protected, employers are encouraged to discredit the whistleblower rather than focussing on what they disclose.^[125]

One solution to this could be to apply a different test. The UK’s whistleblower provisions in employment legislation provide that the category of external disclosures (for example, to the media) that are protected is only available where disclosures are not made for personal gain.^[126]

International comparison of reprisal provisions

The anti-reprisal provisions of the PID Act require the whistleblower to prove to the Federal Court that a Commonwealth agency had a conscious ‘belief or suspicion’ of a disclosure as a positive ‘reason’ for the detrimental conduct … before remedies might be granted by the Court. Paragraph 13(1)(c) relating to reprisals states that a discloser must persuade the Court that the employer agency’s ‘belief or suspicion is the reason, or part of the reason, for the [reprisal] act or omission’.^[127]

By contrast, the EU Directive on the protection of persons who report breaches of Union law (2019), places the onus on the agency, in Article 21 ‘Measures for Protection against retaliation’: 

5.   In proceedings before a court or other authority relating to a detriment suffered by the reporting person, and subject to that person establishing that he or she reported or made a public disclosure and suffered a detriment, it shall be presumed that the detriment was made in retaliation for the report or the public disclosure. In such cases, it shall be for the person who has taken the detrimental measure to prove that that measure was based on duly justified grounds.[128]

The Preambular text to the EU law clearly states an intention to places the onus on the agency:

Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he or she reported breaches or made a public disclosure in accordance with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure. [para 93] 

Stakeholder comments

The Centre for Governance and Policy at Griffith University, Transparency International and the Human Rights Law Centre criticised the drafting of the PWRC exclusions. In their submission to the Senate Legal and Constitutional Affairs Committee they stated: 

We consider this complex drafting will not translate into effective implementation, as experience indicates it will encourage some agencies to treat anything that involves work-related personal conduct as being excluded from PID Act protection, even where there is a mix of work-related personal conduct and other (public interest) wrongdoing within a disclosure. Such mixed disclosures are the largest single category of disclosures, constituting around half of all whistleblowing cases, as our empirical research has shown (see Whistling While They Work 2).  Accordingly, s.29(2A) and s.29A of the PID Act require significant redrafting to better achieve the letter and spirit of the Moss Review’s recommendation.^[129]

Part 2—Allocation and investigation of disclosures

This part proposes amendments to the PID Act relating to the administrative process for allocation and investigation of PID matters.

Many of these proposed amendments aim to provide greater ‘flexibility’ in the handling of PID allocations and investigations. They create more options for the allocation, reallocation, referral and handling of disclosures by an authorised officer.

Other amendments propose new requirements and clarifications to improving communication between agencies (and with disclosers) about the handling of PID investigations.

These processes apply after it has been determined that a disclosure meets the tests for being a ‘public interest disclosure’ (see: Figure Two: Flowchart of process, above).

Review recommendations and corresponding Item Number in Schedule 1 to the Bill

Amendments for agency re-allocation within portfolio

The amendments in Items 5 and 11 would enable an authorised officer to allocate the disclosure to another agency, where s/he is satisfied that the other agency is better able to handle that disclosure.

An example of the underlying objective is to enable smaller agencies to refer a disclosure to their larger portfolio department. Referral and transfer of a disclosure will only be possible where the receiving agency consents to the allocation.

These amendments apply in relation to situations where an authorised officer has already assessed a potential PID and established that the matter is actually a PID (see: “Yes, it is a PID” in Figure Two: Flowchart of process, above).

Allocation amendments include Item 11 to repeal sections 43 and 44 of the PID Act, substituting new sections 43, 44 and 44A.

Related amendments include Item 5 which inserts a definition of allocation into section 8 of the PID Act. This would include the allocation of the handling of a disclosure, and the reallocation of the handling of a disclosure. Related are the amendments at items 12-13, 31 and 34.

Amendments to enable investigation under another law or power

A group of amendments in Part 2 of Schedule 1 enable the authorised officer or principal officer to refer a disclosure to investigation under another law or power.

Additional proposed amendments would provide principal officers with a discretion to not investigate, or stop investigating, if the disclosure would be more appropriately investigated under another law or power, in order to implement Moss Review recommendation 31.[130]

Comment

The proposed group of provisions for ‘flexibility’ in the handling of PID allocations and investigations may attract criticism as an invitation to buck-pass or handball matters elsewhere and, in the worst-case scenario, possibly deflect responsibility for a proper investigation.

In response, it is relevant to note the safeguard that complaints about the handling of investigations into a PID can be made to the Ombudsman (or to the IGIS where appropriate).

There is evidence from the Ombudsman’s Annual Report that many agencies already refer PID matters to other legislative schemes. The 2021-22 Report observes:

Where agencies consider that a different investigation (or reinvestigation) should be conducted, the PID Act enables agencies to recommend a PID is investigated under another law. Common areas for referral include the Public Service Act 1999 (for investigation of code of conduct matters), Defence Force legislation and the Public Governance Performance and Accountability Act 2013 (for fraud matters) … This year, agencies made 46 recommendations for referral, compared with 54 in 2020–21. Most were referred for investigation under Defence Force legislation or the Public Service Act.^[131]

Arms-length investigations

The issue of independence of internal investigations of PIDs has been raised. A submission to the Committee inquiry into the Bill by former ANU Professor Peter Tregear suggests there is a greater need for arm’s length investigation within agencies, stating:

Currently the Act operates on the basis of what I might respectfully state to be an overly optimistic view of the capacity for a Commonwealth Agency (and in particular the … 'Authorised Officer' …) to carry out their functions in an open and unbiased fashion.^[132]

He suggested:

The Act should explicitly mandate an Agency undertaking investigations of PIDs referred back to it in a manner that is truly at arms length from all those who have an obvious or perceived interest in the outcome, and provide for significant sanctions if this does not occur.^[133]

Facilitating exclusion of APS Code of Conduct matters

Employees in the APS and Parliamentary Service are each subject to a Code of Conduct under the Public Service Act 1999 and the Parliamentary Service Act 1999.

Section 53 of the PID Act deals with the conduct of investigations under Division 2 of Part 3 (which deals with investigations). Subsections 53(1) and (2) provide that an investigation is to be conducted as the principal officer of an agency thinks fit and that, for the purposes of the investigation, the principal officer may obtain information from such persons, and make such inquiries, as the principal officer thinks fit. However, subsection 53(5) qualifies the application of subsections 53(1) and (2) by providing that to the extent that the investigation relates to an alleged breach of the Code of Conduct, the principal officer must comply with procedures set out in the Public Service Act and the Parliamentary Service Act (as appropriate).[134]

Item 32 will repeal subsection 53(5), which the Explanatory Memorandum explains ’ would become redundant with the implementation of Moss Review Recommendations No. 5 (exclusion of personal work-related grievances…) and recommendation 31 (discretion not to investigate if it would be more appropriately investigated under another law or regime…)’.[135]

This amendment aims to implement Moss Review Recommendation 32. The expressed intent of the amendment is to ‘to remove the need for parallel investigations under both frameworks [the PID and the Code of Conduct] in the future’.[136] 

Note that the Australian Public Service Commission (APSC) states in a 2022 fact sheet: ‘The Public Service Act 1999 does not provide for a specific statutory reporting mechanism’.[137] The provisions of the Public Service Act (previous s.16) which used to provide explicit protection for APS employees from victimisation and discrimination for reporting suspected breaches of the APS Code of Conduct to an authorised person have been repealed.[138] Those provisions were repealed upon enactment of the PID Act and the related Public Interest Disclosure (Consequential Amendments) Act 2013. 

Increased role for Ombudsman and IGIS in oversight of PID handling by agencies

The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security (IGIS) oversee the PID Act. Each have statutory role as investigative agencies with separate investigative powers specified by the PID Act. The Bill makes some amendments to those processes.

The expressed aim of this group of amendments in Schedule 1, Part 2 is to increase the role for the Ombudsman and the IGIS in having oversight of agencies’ use and application of the PID process. Ideally, increased oversight by these investigative agencies will lead to higher quality decisions and improved outcomes for both agencies and whistleblowers.

The flowchart at Figure 2 above provides an overview of the role of the Ombudsman in PID matters. The role and powers of the IGIS are similar to those of the Ombudsman, but there are differences attributable to the specialised context of PID disclosures made within the six intelligence agencies (as discussed above).

Both the Ombudsman and IGIS are to be described as the ‘Relevant investigative agency’ under new section 55, at item 34 of Schedule 1. 

Intelligence agency amendments

Item 15 proposes to require intelligence agencies to provide written notice to the IGIS about disclosures within specified time frames and to provide regular written notice on investigation progress. This aims to implement PJCIS Press Freedom Report, recommendation 10.[139]

Information sharing with oversight bodies

Item 28 would amend section 51 of the PID Act to require agencies to send all disclosure investigation reports to the Ombudsman or the IGIS within a reasonable period of time. This implements Moss Review recommendation 3.[140]  

Part 3 - Protections and civil remedies

The Bill proposes amendments to expand protection of disclosers beyond the existing protections in Part 2 of the PID Act.

Schedule 1, Part 3 proposes  amendments to extend protections, including by:

•    expanding the definition of ‘reprisals’ against whistleblowers and
•    extending protections to witnesses.

Review recommendations and corresponding Item Number in Schedule 1 to the Bill

Expanded application – protection of witnesses

In broad terms, the PID Act presently provides that a discloser (that is, a ‘whistleblower’) is not subject to any civil, criminal or administrative liability (including disciplinary action) for making a public interest disclosure.[141]

If an internal disclosure is assessed as not meeting the tests of being a public interest disclosure, then the discloser is advised of that decision. If an external disclosure does not meet the tests of being a PID, then the whistleblower is not protected.

If a disclosure that is assessed as meeting the multi-part tests in section26 of being a PID, then that conclusion provides a discloser with absolute privilege in defamation proceedings, and protection against termination of a contract on the basis that a PID disclosure constituted a breach of the contract.[142] 

Note that the test of what constitutes a PID is complex and the Act states that ‘all the further requirements of Column 3 [in the statutory table in s.26] have to be met’.

Item 40 of Schedule 1 would provide witnesses with the same protections from reprisal, civil, criminal and administrative liability as a discloser, by inserting new sections 12A and 12B. This aims to implement the Moss Review’s recommendation 28.[143]

It is intended that witnesses receive the same reprisal protections as disclosers including access to the civil remedies described in sections 14 to16 of the PID Act.[144]

Witness is defined in new subsection 12A(2). This is not a traditional legal definition of a witness. Rather it refers to ‘an individual who provides assistance in relation to a public interest disclosure’.

Witness immunities are qualified and limited by new section 12B. They do not exclude the operation of certain offence provisions of the Criminal Code, and they do not prevent proceedings in relation to ‘contravening a designated publication restriction’. That term is explained in existing section 8 of the PID Act, listing 14 different categories of restrictions ranging from court suppression orders under the Family Law Act 1975 to suppression orders made under the National Security Information (Criminal and Civil Proceedings) Act 2004. The latter legislation was the law under which details of the prosecution of the lawyer Bernard Collaery were supressed.[145] The Scrutiny of Bills Committee raised concerns with proposed section 12A, and has sought advice from the Attorney-General as to:

why it is considered necessary and appropriate to give an individual providing assistance in relation to a public interest disclosure under proposed section 12A… with immunity from civil liability, such that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.[146]

The Committee advised that its consideration of this issue ‘will be assisted if the minister's advice addresses what, if any, alternative protections are afforded to an affected individual given that the normal rules of civil liability have been limited by the bill’.[147]

Expanded definition – ‘takes a reprisal’

The Joint Parliamentary Committee on Corporations and Financial Services (2017) report on whistleblower protections recommended that protections in both the public and private sector be made consistent for threats or actual reprisals.[148]

As discussed above, section 13 of the PID Act defines ‘what constitutes taking a reprisal’. It provides that a person takes a reprisal if the person by act or omission causes any detriment to another person (the second person) because they believe or suspect that the second person or any other person made, may have made or proposes to make a public interest disclosure, and that belief or suspicion is the reason, or part of the reason, for the act or omission.^[149]

In order to expand the definition of what amounts to ‘take a reprisal’, Item 41 repeals and replaces existing subsection 13(1), so that it will include conduct that is at least partly based on a belief or suspicion that a person has made, may have made, proposes to make or could make a public interest disclosure. According to the Explanatory Memorandum, the aim is to:

extend the reprisal protections to people who could make a disclosure under the PID Act. This would protect people who may have reprisal action taken against them merely for becoming aware of information that would meet the definition of disclosable conduct.[150]

This implements Recommendation 6.3 of the Joint Parliamentary Committee on Corporations and Financial Services report.[151]

Expanded definition of ‘detriment’

In order to expand protections for whistleblowers, the Bill proposes amendments to expand the definition of ‘detriment’. The Bill proposes amendments to achieve greater consistency and alignment between public and private sector whistleblower protection provisions, found in the PID Act and Corporations Act 2001 respectively. These changes are discussed in the Attorney-General’s Department’s submission to the Senate Inquiry into the Bill.[152]

At present, some of the protections for public sector disclosers are narrower than those for private sector whistleblowers, with only four forms of detriment described in the case of the public sector, as compared to ten in relation to the corporate context. The amendments would align the definition of ‘detriment’ in the PID Act with section 1317ADA of the Corporations Act (which lists ten forms of detriment).

Currently, subsection13(2) of the PID Act defines detriment as including ‘any disadvantage’, including dismissal, injury to employment, alteration of an employee’s position or discrimination in employment.

The statutory examples in that sub-section are substantially narrower than the equivalent provision in the Corporations Act; this focus on employment might by implication exclude personal and collateral disadvantage.

Section 1317ADA of the Corporations Act defines detriment to include ‘harassment or intimidation’, ‘harm or injury … including psychological harm’, ‘damage to a person’s property’, ‘damage to a person’s reputation’, ‘damage to a person’s business or financial position’ and ‘any other damage to a person’.

The Bill will emulate this broader definition of ‘detriment’ (see items 35 (definition and 44 (expansion of the list of circumstances that constitute detriment) of Schedule 1). The expanded definition will include, harassment and intimidation, psychological harm, damage to a person's reputation or other damage to a person.

New duties and obligations to protect and support disclosers

The Bill proposes several new measures to protect whistleblowers, as follows:

•    Item 54 introduces new section 59, to introduce a positive obligation upon a principal officer to support disclosers and witnesses involved in the PID process (to implement Moss Recommendation 20).[153]
•    Item 58 introduces new subsection 60(2) to place a positive duty on authorised officers to take reasonable steps to protect public officials belonging to the agency against reprisals
•    Item 61 inserts new subsection 61(4) to place a duty on public officials to use their best endeavours to assist another public official to perform a duty or function under the Act (Moss recommendation 21).[154]

Access to legal advice

Section 20 of the PID Act contains an offence for the use or disclosure of identifying information about a person who has made a public interest disclosure. However, paragraph 20(3)(a) provides that this information can be used or disclosed if it is ‘for the purpose’ of the PID Act.[155]

Item 50 of Schedule 1 inserts new subsection 20(4) to clarify when a disclosure is’ for the purpose’ of the PID Act under paragraph 20(3)(a) (without limiting that term). It will explicitly state that identifying information may be disclosed for the purpose of seeking legal advice or other professional assistance in relation to a disclosure, to provide assistance in relation to a disclosure, or to perform functions or exercise powers in good faith under the PID Act.

The Australian Lawyers Alliance (ALA) welcomed this amendment.[156] 

Part 4 – Reporting and sharing information

Disclosure investigations - repeal of secrecy offence

Moss findings

The Moss Review found that the secrecy offence at section 65 of the Act created problems for the conduct of investigations: 

The PID Act’s interactions with other procedures for investigating wrongdoing are overly complex. Investigations into disclosures are often isolated from other integrity and accountability legislative frameworks by the operation of the secrecy offences. Key investigative agencies have been omitted. There is also a perception that the PID Act framework is legalistic, making it difficult to resolve a PID.[157]Accordingly, the Moss Review recommended the repeal of the general secrecy offences as they ‘unnecessarily limit agencies’ ability to respond to alleged wrongdoing’.[158]

Proposed amendments

On that basis, the Bill proposes (Item 63) to repeal the general secrecy offence in section 65, as well as section 66 relating to ‘source agencies for intelligence information’.  This implements Moss Review recommendation 16.[159]

Review recommendations and corresponding Item Number in Schedule 1 to the Bill

Part 5 - Roles of the Ombudsman and the IGIS

In order to provide additional clarification of the roles of the Ombudsman and the IGIS in receiving and investigating public interest disclosures, the Bill (in Schedule 1, Part 5), makes provision:  

•    regarding complaints about the handling of a disclosure by an agency and
•    that complaints made directly to either the PID or IGIS can be a PID. 

Item 70 would insert proposed sections 7A and 7B into the PID Act to make it clearer that complaints about the handling of a disclosure by an agency can be made to the Ombudsman under the Ombudsman Act 1976 and the IGIS under the Inspector-General of Intelligence and Security Act 1986 (IGIS Act).

The Explanatory Memorandum states that it is: 

intended to ensure that agencies and public officials are aware of the role of the Ombudsman and the IGIS in resolving complaints about an agency’s handling of a PID.[160]

Part 6 - Machinery of Government changes

Schedule 1, Part 6 sets out a procedure for handling of disclosures when there has been a machinery of government (MOG) change.

Items 71 to 76 make amendments and additions to section 8 and section 35 of the Act for this purpose. The intention is to enable the transfer of ‘on foot’ disclosures from one agency to a second agency, in the event of a MOG change.

Part 7 - Agencies, public officials, principal officers

Part 7 of Schedule 1 includes amendments to clarify that judicial officers, members of parliament and people employed under the Members of Parliament (Staff) Act 1984 (MOPS Act) are not covered by the PID Act.

Section 69 of the PID Act defines ‘public official’. This definition is important because it identifies the persons who can make a public interest disclosure and the persons whose conduct a public interest disclosure can be made about. Section 70 allows an authorised officer to determine persons who do not come within the definition in section 69 to be public officials for the purposes of the Act. The purpose of section 70 is to enable those with knowledge of unacceptable conduct who are not public officials according to the definition in section 69 to make disclosures and receive the protection provided by the Act. Subsection 70(3A) currently provides that the section does not apply to judicial officers or members of Royal Commissions. That is, these people cannot be determined to be public officials under section 70. Item 89 of Schedule 1 repeals and replaces subsection 70(3A) so that in addition to judicial officers and members of Royal Commissions, members of Parliament and their staff cannot be determined to be ‘public officials’ under section 70.

Stakeholder comment

A number of statutory bodies, including the Australian Human Rights Commission have made submissions to the Committee inquiry into the Bill, recommending that persons employed under the MOPS Act be included within the definition of ‘public officials’ in the PID Act.[161]

Similarly, the Victorian Anti-Corruption Commission (IBAC) queried the proposed amendments in relation to MPs and MoPS staff, stating:

Members and MoP Staff appear [under the NACC legislation] to have a narrower scope of conduct to disclose, and a higher standard of proof to be satisfied of before making a disclosure. Consequently, the availability of protections against reprisals and detrimental actions for Members and MoP Staff will be similarly constrained when compared to their original position under the PID Act.^[162]

Additional arguments were advanced by Dr Denis Muller, of the Centre for Advancing Journalism, University of Melbourne critiquing the exclusion of MPs and their staff from the Act. He argued:

events concerning the workplace culture inside Parliament House that have come to light in recent years raises the question of how the whistle might be blown on their [MPs and their staffers] misconduct.[163]

Insertion of term ‘Commonwealth entity’

Schedule 1, Part 7 also makes amendments to definitions of agencies, public officials and principal officers under the PID Act.

As explained by the Moss Review:

The PID Act was drafted before the [Public Governance, Performance and Accountability Act 2013] PGPA Act simplified the governance of Commonwealth entities. Using the PGPA term ‘entity’ instead of the Public Service Act term ‘agency’ within the PID Act will provide organisations with greater clarity about whether they are subject to the PID Act.[164]  

Items 77 to 79 insert a definition of Commonwealth entity, amend the definition of Department and repeal the definitions of Executive Agency and Statutory Agency to align with the PGPA Act. This is to implement Moss Review Recommendation 29.[165]

The Bill will also amend references to prescribed authority (Item 90 inserts a definition of prescribed authority at section 72 of the PID Act). In doing so, this Part would ensure terminology used in the PID Act aligns with the PGPA Act.[166]

Schedule 2—Other amendments

Schedule 2 proposes other amendments to the PID Act to:  

•    insert a new simplified outline (Item 3)
•    provide for additional statutory review of the operation of the amended PID Act (Item 21, inserting new section 82A), by requiring a review as soon as practicable 5 years after the commencement of the amendments.

In relation to the provision requiring further statutory review of the operation of the PID Act, it is relevant to note that the Moss Review advocated ‘continuous, evidence-based improvement’ to the regime and suggested a review time frame of ‘every three to five years’.[167] It also called for ‘regard to be given to new research and developments in similar state and territory legislation’.[168] Item 21 of the Bill does not reflect those detailed aspects of the Moss Recommendation.

Schedule 2 also amends the PID Act toto narrow its application by removing certain Commonwealth grants from the disclosure regime (Items 4 and 15 of Schedule 2). This responds to Moss Review Recommendation 30.[169] As explained by the Moss Review:

The PID Act includes contractors, contracted service providers and their staff members within the definition of public officials. Contrary to the policy intention of the legislation, there have been situations in which the contracted service provider definition has also captured grant recipients who received their funding through a contract … The Review recommends amending the PID Act to ensure that grant recipients are not ‘public officials’.[170]

Schedule 4—Amendments contingent on the National Anti-Corruption Commission legislation

Schedule 4 proposes certain contingent amendments to the NACC legislation and the PID Act to support the operation of the National Anti-Corruption Commission (NACC). Different parts of Schedule 4 are set to commence contingent upon the date of commencement of section 40 of the National Anti-Corruption Commission Act 2022 and Schedule 1 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022.

At the time of writing, the National Anti-Corruption Commission Act 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 had both received Royal Assent on 12 December 2022. The relevant parts of the NACC legislation will commence on the earlier of proclamation or 12 December 2023. The Government has indicated that it expects the NACC to commence in mid-2023.[171]

The policy intent expressed in the Explanatory Memorandum for the present Bill is ‘to ensure that reprisal protections for disclosers remain consistent across the PID and NACC frameworks’.[172]

Note re: Administrative Appeals Tribunal

On 16 December 2022, the Attorney-General announced that the Government would abolish the AAT and replace it with another body, with the Government to undertake consultations with stakeholders in 2023.  

As the PID Act makes a number of references to Commonwealth Tribunals and to administrative functions of the Administrative Appeals Tribunal, there is likely to be a need for further amendments to the PID Act consequential upon those anticipated reforms.  

Conclusion

The present Bill seeks to make improvements to the whistleblower protection law applying to the Commonwealth public sector, legislation which has been in operation since January 2014.

The incoming Government has moved to implement recommendations of an independent statutory review of the PID Act, conducted by Phillip Moss AO more than six years ago.

Even at that time in 2016, with the experience from just over two years operation of the Act, Mr Moss reported on various difficulties with the Act in practice, both from the perspective of whistleblowers, and that of Commonwealth agencies.

The Bill seeks to implement 21 of 33 recommendations of the Moss Review.

Submissions on the Bill have applauded the proposal to expand the definition of ‘detriment’ from which a whistleblower is legally protected so that it matches that in the Corporations Act 2001.

Some of the more contentious issues raised by the Bill appear to be:

•    drafting of the proposed exclusion of ‘personal work-related conduct’
•    complexity of many existing and proposed provisions
•    exclusion of MPs and MOPs staff, seen by the authors of one submission as entrenching ‘the unique status of Parliament House as a ‘black hole’ for whistleblower protection’,[173] at variance with the position taken at State and Territory level and
•    whether there is a case for consistency in federal law to cover public sector disclosures as opposed to a fragmented list of Commonwealth laws in different contexts with differently drafted provisions.[174]  

In broader terms, the architecture of the PID Act is premised on Commonwealth whistleblowers making internal disclosures within government, before considering external disclosures. The external bystander might draw the conclusion that the existing Act more closely resembles an internal complaint investigation mechanism for the federal public sector, rather than one designed to permit appropriate external whistleblowing regarding instances of wrongdoing on public interest matters to the media and MPs.

Transparency International critiqued the Bill as offering ‘limited improvements’. Although it is eight of the Moss recommendations are not addressed in the Bill, there is commitment to take these up in the second tranche of reforms to the Act. It is understood that almost all of the ‘missing’ Moss reforms will be addressed in the second tranche of reforms later in 2023.^[175]

Appendix: Moss Review Recommendations

Recommendations addressed in the Bill Included

Source: Public Interest Disclosure Amendment (Review) Bill 2022; Philip Moss, Review of the Public Interest Disclosure Act 2013: an independent statutory review (‘Moss Review’), Canberra, ACT : Department of the Prime Minister and Cabinet, 2016.

Moss Review Recommendations Not Addressed by the Bill