Chapter 1Introduction
1.1On 1 December 2022, the Senate referred the Public Interest Disclosure Amendment (Review) Bill 2022 (bill) to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 14 March 2023.
Conduct of the inquiry
1.2The committee advertised the inquiry on its website and invited organisations and individuals to submit by 20 January 2023. The committee received 27 public submissions, which are listed at Appendix 1.
1.3The committee held a public hearing in Canberra on 27 February 2023. A list of witnesses who appeared at the hearing is at Appendix 2.
Structure of the report
1.4This report comprises two chapters:
chapter 1 provides a background to the public sector whistleblower framework, outlines key recent inquiries and reviews into whistleblower protections, details the purpose and the key provisions of the bill, and provides an overview of the consideration of this bill by other parliamentary committees; and
chapter 2 examines the key issues raised by submitters and witnesses, and sets out the committee's views and recommendations in relation to the bill.
Background to the public sector whistleblowing framework
1.5In February 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs tabled a report on a preferred model for legislation to protect public interest disclosures (colloquially known as 'whistleblowing') within the public sector. The report found that 'legislation on whistleblower protection is piecemeal at best'. It made 26 recommendations related to the introduction of legislation to provide more comprehensive whistleblower protections in the public sector.
1.6The government agreed—in whole, in part, or in principle—to 22 of the recommendations made in the report, and did not agree with four of the recommendations.
1.7In 2013, the Public Interest Disclosure Act 2013 (PID Act) was introduced to establish a framework to facilitate the making of public interest disclosures by public officials with the aim of promoting the integrity and accountability of the Commonwealth public sector. Specifically, the PID Act aimed to enable public officials to disclose suspected wrongdoing by better protecting disclosers and by ensuring disclosures were properly investigated.
1.8Under the PID Act, the Office of the Commonwealth Ombudsman (Ombudsman) is responsible for overseeing and reporting on the operation of the PID scheme, and can investigate complaints concerning an agency's handling of a disclosure or can undertake an own motion investigation into the handling of a disclosure. For public officials working within specified intelligence agencies, the Inspector-General of Intelligence and Security (IGIS) is mandated to receive complaints about the management of PID disclosures and is authorised to receive disclosures. Both the Ombudsman and IGIS promote awareness and understanding of the PID Act within agencies under their respective jurisdictions.
1.9The Australian Public Service Commissioner is mandated under the Australian Public Service Act to undertake PID inquiries that relate to alleged breaches of the Australian Public Service Code of Conduct—a code of conduct which sets out the standard of behaviour expected of Commonwealth public officials.
1.10In addition, the Australian Federal Police (AFP) has a role under the PID Act to facilitate and investigate disclosures, and to investigate (where appropriate) referrals made to the AFP that allege criminal activity.
Key inquiries and reviews into whistleblower protections
1.11A number of inquiries and reviews have subsequently considered the effectiveness of the PID framework established through the PID Act, as detailed below.
Senate Economics References Committee inquiry
1.12In June 2014, the Senate Economics References Committee reported on the Performance of the Australian Securities and Investments Commission (ASIC), including consideration of the protections afforded by ASIC to corporate and private sector whistleblowers. The report concluded that the corporate whistleblower regime needed to be strengthened, and made five recommendations for doing so:
that the government develop legislative amendments to expand the definition of a whistleblower within the Corporations Act 2001 (Corporations Act) and to expand the scope of information that is protected under the Act (recommendation 12);
that an 'Office of the Whistleblower' be established within ASIC (recommendation 13);
that the government review the adequacy of the corporate whistleblower framework (recommendation 14);
that the government consider updating the corporate whistleblower framework to ensure consistency with the PID Act, including remedies available to disadvantaged whistleblowers, criminalisation of reprisals against whistleblowers, and limited protections for external disclosures (recommendation 15); and
that the government consider options for reward-based incentives for corporate whistleblowers as part of the recommended review (recommendation 16).
Moss Review
1.13On 15 July 2016, the independent statutory review of the whistleblower framework conducted by Mr Philip Moss AM (the Moss Review) was presented to government. The Moss Review gave effect to section 82A of the PID Act that required that a review into the operation of the Act begin within two years of the commencement of the Act.
1.14The Moss Review found:
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.
1.15The report further concluded that the experience of agencies suggested the PID Act had been 'difficult to apply' and had achieved its aims 'only to a limited extent'.
1.16The Moss Review made 33 recommendations to improve the operation of the PID Act, relating to:
strengthening oversight (recommendations 1 to 4);
clarifying the definition of 'disclosable conduct' and related measures (recommendations 5 to 9);
simplifying legislative procedures (recommendations 6 to 13);
improving the balance between transparency, confidentiality, and procedural fairness (recommendations 14 to 19);
improving access to information and advice (recommendations 20 to 25);
clarifying the coverage of the legislation (recommendations 26 to 30); and
simplifying interactions between the PID Act and other investigatory regimes (recommendations 31 to 33).
1.17On 16 December 2020, the government issued its response to the Moss Review, in which it agreed to 30 of the recommendations, noted one, and did not agree with two of the report's recommendations.
1.18In submissions to the current inquiry, the Attorney-General's Department and the Ombudsman detailed steps subsequently taken by government to implement the recommendations of the Moss Review.
Parliamentary Joint Committee on Corporations and Financial Services inquiry
1.19In September 2017, the Parliamentary Joint Committee on Corporations and Financial Services (PJCCFS) tabled its report on Whistleblower Protections. The Whistleblower Protections report concluded that, 'whistleblower protections remain largely theoretical with little practical effect in either the public or private sectors'. The report also raised concerns relating to the 'fragmented nature' of whistleblower legislation—both between corporate and private sectors, as well as within the private sector itself.
1.20The PJCCFS report made 35 recommendations that relate directly to whistleblower protections:
consistency of whistleblower protections across sectors (recommendation 3.1);
disclosable conduct (recommendations 5.1 to 5.3);
the definition of a whistleblower and thresholds for protection (recommendations 6.1 to 6.6);
the anonymity of whistleblowers (recommendations 7.1 to 7.3);
internal, regulator, and external reporting channels (recommendations 8.1 and 8.2);
disclosures to law enforcement agencies (recommendations 8.3 to 8.4);
external disclosure (recommendations 10.1 to 10.3);
the rewards system (recommendations 11.1 and 11.2); and
the establishment of a Whistleblower Protection Authority (recommendations 12.1 to 12.11).
1.21In April 2019, the government responded to the Whistleblower Protections report, agreeing wholly or in part to 16 of the recommendations, noting 11, and not agreeing to eight.
1.22In its submission to the current inquiry, the Attorney-General's Department detailed some of the actions that have been taken by government to implement each of the recommendations that relate directly to whistleblower protections made in the Whistleblower Protections report.
Parliamentary Joint Committee on Intelligence and Security
1.23In August 2020, the Parliamentary Joint Committee on Intelligence and Security tabled its report into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press (Press Freedom report). The Press Freedom report made 16 recommendations, three of which relate directly to whistleblower protections:
that the government formally respond to the recommendations of the Moss Review (recommendation 9);
that the PID Act be amended to enable greater and more immediate oversight by IGIS of a PID claim made by an official connected to an intelligence agency (recommendation 10); and
that the government provide for mandatory reporting to Parliament every six months of aggregated statistics related to claims made under the PID Act (recommendation 11).
1.24In October 2020, the government responded to the Press Freedom report, agreeing to recommendations 9, 10, and 11. In December 2020, the government released its response to the Moss review (see above), in accordance with recommendation 9 of the Press Freedom report.
1.25In its submission to this inquiry, the Attorney-General's Department detailed the actions taken by government to implement each of the recommendations that relate directly to whistleblower protections made in the Press Freedom report.
Legislative reforms
1.26The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Treasury bill) was introduced in 2018 and passed both Houses to begin operation in mid-2019. The Treasury bill amended whistleblower protections in the Corporations Act to create a 'single, strengthened whistleblower protection regime cover[ing] the corporate, financial and credit sectors'.
Purpose of the bill
1.27The Public Interest Disclosure Amendment (Review) Bill 2022 (bill) aims to strengthen whistleblower protections in the PID Act for both disclosers and witnesses. The bill would do this by expanding protections to those who could make a disclosure; expanding the definition of detriment in relation to reprisal actions to include harassment and intimidation, psychological harm, damage to a person's reputation, among other matters; and providing witnesses with the same immunities as disclosers.
1.28The provisions of the bill would:
allow agencies more flexibility in their handling of disclosures;
increase protections for disclosers;
enhance oversight by the Ombudsman and IGIS;
make it easier for disclosures to be investigated under another law or power; and
improve information-sharing provisions.
1.29In making these amendments, the bill would implement a number of reforms recommended in previous reviews and reports, including:
21 of the 33 recommendations of the Moss Review;
recommendations 6.1 and 6.3 of the Whistleblower Protections report (see above); and
recommendations 10 and 11 of the Press Freedom report (see above).
1.30The Attorney-General, the Hon Mark Dreyfus MP, stated in his second reading speech that the provisions of the bill would 'ensure more people are protected against a broader range of detriment when bringing wrongdoing and corruption to light'.
1.31The bill would constitute the first of two stages of reforms to the PID Act announced by the government under its broader integrity agenda. The Attorney-General announced that the government would undertake a second stage of reforms, in which it would comprehensively redraft the PID Act to reduce its complexity, strengthen the effectiveness and accessibility of the schemes' protections, and consider the establishment of a Whistleblower Protection Authority or Commissioner.
1.32Relatedly, on 27 February 2023, the government held a national roundtable with media organisations and key stakeholders to discuss reforms to press freedoms. When announcing the roundtable, the Attorney-General stated, '[j]ournalists should never face the prospect of being charged or even jailed just for doing their jobs'.
1.33Further, the Attorney-General's Department will undertake a comprehensive review of all Commonwealth secrecy offences with a view to whether existing secrecy offences adequately protect public interest journalism. The Department is expected to provide government with a final report by 30 June 2023.
Outline of the bill
1.34The bill comprises four schedules:
schedule 1 contains the main amendments of the bill;
schedule 2 contains other amendments that would exclude grant recipients from the application of the PID Act, in accordance with recommendation 30 of the Moss Review, and would provide for a review of the PID Act five years after the commencement of the amendments in the bill;
schedule 3 contains the application and saving provisions for schedules 1 and 2 of the bill; and
schedule 4 contains reforms that would support the operation of the National Anti-Corruption Commission (NACC) and ensure greater consistency across the PID and NACC frameworks (for more on the NACC, see text box, below).
1.35The key features of the bill are detailed below.
Strengthened whistleblower and witness protections
1.36The bill would expand the protections against reprisals for a whistleblower to better align the PID Act with the Corporations Act. Specifically, it would provide protections for those who could make a disclosure, expand protections to include conduct that results in a threat being made (including indirect threats), and expanding the definition of detriment in relation to reprisal action to include a broader range of harm (to include matters such as harassment or intimidation, injury or harm—including psychological harm; damage to a person’s property, reputation, or business, or financial position; or any other damage to a person) to better align the PID Act with the Corporations Act.
1.37The bill would also extend the PID Act to protect witnesses supporting a disclosure, and would impose a positive duty on principal officers to support disclosers and witnesses, and to provide appropriate awareness, training, and education to staff related to the PID framework.
Focus on integrity matters
1.38In implementing recommendation 5 of the Moss Review, the bill would exclude personal work-related conduct from the scope of disclosable conduct under the PID Act. The stated objective of this reform is to better focus on integrity wrongdoing, as opposed to conduct that could more appropriately be dealt with through other processes (such as performance management or dispute resolution processes).
Enhanced oversight
1.39The bill would require that the Ombudsman or IGIS (as appropriate) be provided with a copy of all disclosure investigations 'within a reasonable time' to enable greater oversight of the scheme, and clarifies the role of investigative agencies in handling complaints.
Simplified administration
1.40Agencies would be afforded a discretion under the proposed reforms not to allocate or investigate a disclosure, if more appropriately investigated under another law or power. It would also enable a disclosure to be allocated to another agency if the other agency is considered to be better able to investigate the disclosure.
1.41Certain secrecy offences contained in the PID Act would be repealed under the bill to better support information sharing between agencies related to a disclosure, and to afford investigative agencies greater oversight of the operation of the PID scheme.
1.42The bill would also explicitly exclude from the PID scheme members of the judiciary, parliamentarians, and persons engaged under the Members of Parliament (Staff) Act 1984 (MoPS Act), in accordance with recommendation 26 of the Moss Review. The Moss Review recommended that consideration be given to the conduct of parliamentarians and persons engaged under the MoPS Act be scrutinised by a federal anticorruption commission, when established.
Box 1.1 The National Anti-Corruption Commission On 30 November 2022, the National Anti-Corruption Commission Act 2022 (NACC Act) and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (NACC Consequential bill) were passed. The acts provide for the establishment of the NACC with broad jurisdiction to investigate public sector corruption, with prevention and education functions to improve public sector anticorruption efforts. The NACC is slated to begin operating in mid-2023. |
Interaction with the NACC
1.43The provisions of the bill seek to clarify the arrangements for disclosures under the PID Act and NACC Act, and to ensure protections for disclosers are consistent across the two frameworks. Subject to the commencement of the NACC Consequential Act, this bill would insert a definition of a 'corruption issue' consistent with that of the NACC Act, and provides direction for allocating and investigating disclosures that may also be referred to the NACC Commissioner. Further, the bill would amend the NACC Act to ensure consistency around issues such as the definition of a reprisal and of detriment.
Consideration by other parliamentary committees
1.44When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
Scrutiny of Bills Committee
1.45The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties, and obligations; the rule of law; and on parliamentary scrutiny. On 8 February 2023, it reported on the bill, raising three concerns, detailed below.
1.46First, the Scrutiny of Bills Committee described proposed section 46 of the bill that would amend section 19 of the PID Act as tantamount to a 'reversal of the evidential burden of proof'. Section 19 of the PID Act addresses offences relating to reprisals or threats of reprisals taken against a person in relation to disclosures. Proposed section 19(4) provides an exemption on the grounds of reasonable administrative action, but notes, '[a] defendant bears an evidential burden in relation to the matter'. The Scrutiny of Bills Committee suggested section 46 of the bill be amended to provide that reasonable administrative action not be an offence, in accordance with subsection 13.3(3) of the Criminal Code.
1.47Second, the Scrutiny of Bills Committee raised concerns with the broad delegation by the Ombudsman and IGIS of their administrative powers or functions under the PID Act to any public official belonging to the respective agency, under proposed subsection 77(2). The Scrutiny of Bills Committee suggested that the minister consider restricting the delegation to holders of nominated offices or members of the Senior Executive Service. The Scrutiny of Bills Committee recommended that the minister consider requiring that the Ombudsman and IGIS be satisfied that a delegate has the appropriate training, qualifications, or experience to appropriately exercise the delegation prior to delegating their powers or functions.
1.48Third, the Scrutiny of Bills Committee put forward concerns with the immunity from civil and criminal liability that would be afforded witnesses under proposed sections 12A and 78(1)(c). The Scrutiny of Bills Committee considered that the relevant sections of the bill may curtail the common law right of affected persons to bring an action against an individual, for example a claim of defamation.
Human Rights Committee
1.49The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. At the time of writing, the Human Rights Committee had not examined the bill.
1.50The bill's explanatory memorandum noted:
The Bill would be compatible with human rights. To the extent that the measures in the Bill may limit human rights, each of those limitations are necessary, reasonable and proportionate.
References
1.51References in this report to Committee Hansard are to the proof (uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Acknowledgements
1.52The committee thanks those individuals and organisations who made submissions and gave evidence at the public hearing.