THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
Public Interest Disclosure Amendment (Review) Bill 2022
The Albanese Government is committed to restoring trust and integrity to government—and an effective public sector whistleblowing framework is essential to achieving this, including to support disclosures of corrupt conduct to the National Anti-Corruption Commission.
The Public Interest Disclosure Amendment (Review) Bill will implement key recommendations of the 2016 review of the Public Interest Disclosure Act by Mr Philip Moss AM (the Moss review) and parliamentary committee reports to deliver immediate improvements to our public sector whistleblowing scheme. These reforms are long overdue.
The bill will implement 21 of the 33 recommendations of the Moss review, recommendations 10 and 11 of the Parliamentary Joint Committee on Intelligence and Security report on the inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press, and recommendations 6.1 and 6.3 of the Parliamentary Joint Committee on Corporations and Financial Services report on the inquiry into whistleblower protections in the corporate, public and not-for-profit sectors.
Improving whistleblower protections
The bill will strengthen whistleblower protections for both disclosers and witnesses in the Public Interest Disclosure Act.
It will expand reprisal protections to those who 'could make' a disclosure. This will protect people who may have reprisal action taken against them merely for becoming aware of information that would meet the definition of 'disclosable conduct'.
The bill will also expand the definition of detriment in relation to reprisal action to align it with the definition used in the private sector whistleblowing scheme in the Corporations Act 2001.
The expanded definition will include, among other matters, harassment and intimidation, psychological harm, damage to a person's reputation and any other damage to a person.
The bill will also provide witnesses with the same immunities under the Public Interest Disclosure Act as disclosers. This means immunity from civil, criminal and administrative liability will be available to any person who provides assistance in relation to a disclosure, including those who do so voluntarily.
Together, these amendments will ensure more people are protected against a broader range of detriment when bringing wrongdoing and corruption to light.
Providing a strong focus on significant integrity wrongdoing
The bill will remove personal work related conduct from the scope of the Public Interest Disclosure Act.
This implements a recommendation of the Moss review to focus the act on integrity wrongdoing, such as fraud and corruption. This approach is not to suggest that agencies should ignore other forms of wrongdoing or workplace conflict. It recognises that other existing frameworks such as performance management or disciplinary conduct procedures, are better adapted to deal with complaints of personal work related conduct.
However, there will be instances where it remains appropriate for disclosure of personal work related conduct to be dealt with under the Public Interest Disclosure Act.
The bill provides that such conduct can continue to be disclosed under the Public Interest Disclosure Act where it amounts to a reprisal action. Reprisal action often takes the form of personal work related conduct such as bullying and harassment. It is important that whistleblowers continue to receive protections when they bring to light such conduct that is experienced as a consequence of their initial disclosure.
The bill also provides that disclosures of personal work related conduct will be protected and investigated under the Public Interest Disclosure Act where the conduct is of such a nature that it would undermine public confidence in an agency, or have other significant implications for an agency. This ensures that a whistleblower can disclose personal work related conduct where it is symptomatic of a larger, systemic concern within an agency, and is appropriate to report under the PID Act as a framework that is designed to address serious public sector wrongdoing and corruption.
Making the Public Interest Disclosure Act easier for agencies to administer
The bill will provide greater flexibility to agencies in how they handle disclosures, including to ensure the matter can be more easily referred for investigation under another law or power where appropriate.
Officers exercising functions under the Public Interest Disclosure Act will be provided with a discretion not to allocate or investigate a disclosure if it would be more appropriately investigated under another law or power.
This could include an investigation by the National Anti-Corruption Commission.
Public interest disclosure officers would be required to notify the discloser and the relevant oversight agency of their decision, and take reasonable steps to refer the disclosure for investigation under the other law or power where appropriate.
The bill will also repeal the general secrecy offence in the Public Interest Disclosure Act to support better information sharing between agencies in relation to a disclosure. The Moss review noted that the secrecy offence unnecessarily limits agencies' ability to respond to alleged wrongdoing and disclosures, and has impeded the ability of senior management to access information about the performance of their agency.
Repealing the general secrecy offence will ensure agencies can share information appropriately to effectively manage disclosures and carry out ordinary business actions.
Clarifying the coverage of the legislation
The bill will clarify who is a public official for the purposes of the Public Interest Disclosure Act.
Consistent with a recommendation of the Moss review, the bill will expressly exclude staff employed or engaged under the Members of Parliament (Staff) Act 1984 from the scope of the Public Interest Disclosure Act, reflecting the original intention of the legislation.
While the government is implementing this recommendation to clarify the scope of the act, it is important to note that the government supports the provision of appropriate whistleblower protections for parliamentary staff and has taken the first step towards delivering this outcome through protections provided in the National Anti-Corruption Commission legislation for disclosures of corrupt conduct. Parliamentary staff who report a corruption issue to the National Anti-Corruption Commission will have robust protections against reprisal or detriment. This will go a long way to addressing a gap in the current Commonwealth integrity framework.
Further, the government will also consider whether other protections are appropriate for parliamentary staff who report misconduct in the context of implementing relevant recommendations in Set the standard: report on the Independent Review into Commonwealth Parliamentary Workplaces, in particular the establishment of the Independent Parliamentary Standards Commission.
Enhancing oversight of the scheme
Effective oversight by the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security, the IGIS, is critical to ensuring confidence in the integrity of the public interest disclosure scheme.
Agency heads under the act will be required to provide the Ombudsman or the IGIS, as appropriate, with a copy of all investigation reports into disclosures within a reasonable period of time.
To further strengthen scrutiny of the scheme, the Ombudsman and the IGIS will be able to make recommendations to agencies following any review of an investigation report. Recommendations can be made in relation to any aspect of the handling of a disclosure and about any public official in an agency. An agency will be required to respond with details of any action taken in response to a recommendation or, if no action has been taken, the reasons for this.
The bill will also implement recommendations 10 and 11 of the Parliamentary Joint Committee on Intelligence and Security report into press freedom to require:
notification of urgent disclosures in intelligence agencies to the IGIS as soon as possible, and
biannual reporting of statistics on all public interest disclosures to the parliament.
Interaction with the National Anti-Corruption Commission
The bill will amend the National Anti-Corruption Commission legislation to reflect amendments to whistleblower protections in the Public Interest Disclosure Act to ensure both regimes provide strong protections for whistleblowers. These improvements are intended to be in place before the National Anti-Corruption Commission commences in mid-2023.
Comprehensive reforms to the public sector whistleblowing scheme
The bill is only the first stage of reform to restore the Public Interest Disclosure Act to a best-practice whistleblowing framework.
Following passage of this bill, the government will commence a second stage of reform, which will include public consultation on:
further reforms to address the underlying complexity of the scheme and provide effective and accessible protections to public sector whistleblowers, and
a discussion paper on whether there is a need to establish a whistleblower protection authority or commissioner.
Consultation on these further reforms will ensure that they are not only shaped by users of the Public Interest Disclosure Act across government but also informed by expert stakeholders and the general public to ensure Australia has a best-practice scheme.
This staged approach will allow the government to deliver immediate improvements to the scheme, including to whistleblower protections, ahead of the establishment of the National Anti-Corruption Commission.
With this bill, the Albanese government is taking an important first step in improving Australia's whistleblowing framework for the public sector.
The legislation will strengthen protections for public-sector whistleblowers and, in doing so, will support our broader efforts to restore integrity in government.