National Whistleblowing Symposium
Good morning. I would like to begin by thanking Professor AJ Brown, Griffith University, and the Human Rights Law Centre for organising and hosting this conference, and for inviting me to address you today.
Australia’s institutions have a fantastic track record. For more than 100 years they have secured freedom and enabled prosperity. But the health of our institutions depends on the trust of the public.
Strong frameworks that foster public confidence in the institutions of government are critical. They must be robust and fit for purpose to support investigations, address wrongdoing, and protect those who call it out.
They must support employees to speak up when they identify wrongdoing, whether they work in the public or the private sector.
The Coalition Government has a track record of reform in this area. In 2018, the Government expanded whistleblower protections in the Corporations Act 2001 to provide greater protections for people who report misconduct about companies and company officers. We also reformed whistleblowing legislation in the Fair Work (Registered Organisations) Act in 2016.
This is a record we intend to build on, including through the introduction of a Commonwealth Integrity Commission.
But in my speech today, I will focus on whistleblowing in the Commonwealth public sector – particularly the Government’s planned reforms to the Public Interest Disclosure Act 2013. I will take you through the current public sector whistleblowing scheme, before detailing the extensive work the Government is doing to facilitate greater accountability in the Australian Public Service.
The Government’s commitment to reforming whistleblower legislation
The Government is committed to strengthening and enhancing the public sector whistleblowing scheme in the Public Interest Disclosure Act 2013. This is the legislative framework that protects those who disclose public sector wrongdoing, supports investigations of wrongdoing, and enables public sector agencies to address wrongdoing effectively and efficiently.
In December 2020, the Government agreed in full or in part to 30 of the 33 recommendations arising from the 2016 Review of the Act, conducted by Mr Philip Moss AM.
These recommendations will promote transparency and accountability within government, protect those who raise allegations of wrongdoing and ensure that government agencies – who are entrusted by the Australian community with important responsibilities – are empowered to address wrongdoing swiftly and effectively.
Complexities and limitations in the Public Interest Disclosure Act
The Public Interest Disclosure Act is a key element of the Commonwealth’s integrity and transparency framework. The Act enables current and former public officials to disclose suspected wrongdoing by another public official or by an Australian government agency.
Suspected wrongdoing is defined broadly and includes breaches of Commonwealth, State and Territory laws, fraud, serious misconduct and corrupt conduct, as well as some forms of minor wrongdoing and maladministration. Public officials who make a disclosure in accordance with the Act have protections from reprisal actions, and immunities from civil and criminal liability for making the disclosure. In very limited circumstances, a disclosure can be made externally outside of government, for instance, to the media.
The objectives of the Act are clear and simple; the Act itself is not.
The current version of the Act has been criticised for being inaccessible and overly complex. It has structural and technical flaws, which make its provisions difficult to navigate and interpret.
To quote Justice Griffiths of the Federal Court, ‘the legislation might more accurately be described as technical, obtuse and intractable’. His Honour went on to note that the Act 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’.
For an Act designed to promote the integrity and accountability of the Commonwealth public sector and ensure that public officials are supported and protected in doing so, this is a serious indictment.
Key findings of the Moss Review
The key findings of the Moss Review confirm his Honour’s observations. The review noted the unhappy experience of whistleblowers under the Act, with many feeling unsupported. Some disclosers contended that their agency had not properly addressed or investigated the conduct reported, while many others reported experiencing reprisals.
The experience of government agencies has not been much better. The Moss Review noted the bulk of disclosures made under the Public Interest Disclosure Act relate to personal employment-related grievances, which may be better addressed through other, more appropriate processes – such as a Code of Conduct investigation. In this regard, the Act may unintentionally prescribe the wrong solution for the problem, simply by how it is reported.
The complexity and overly technical language of the Act also imposes significant restrictions on agencies, preventing the proper resolution of an allegation of wrongdoing made via a disclosure.
The Government Response to the Moss Review
The observations and recommendations made in the Moss Review paint a complex and often confusing picture of how accountability is implemented in the public service. That is why the Government overwhelmingly supported the recommendations of the Moss Review, agreeing in full or in part to 30 of the 33 recommendations.
Reforms to implement these recommendations will provide greater protections to disclosers and witnesses by imposing additional positive obligations on the heads of agencies to support public officials to make disclosures and to support them during the disclosure process.
The protections provided to witnesses will put beyond doubt that a witness has the same protections from reprisal, as well as civil, criminal and administrative liability as a discloser.
Greater protections will also be afforded to disclosers, with a mandatory requirement that all investigation reports be provided to the Commonwealth Ombudsman and Inspector-General of Intelligence and Security by an agency head. Additional reforms will enhance the powers of the Ombudsman or Inspector-General enabling them to more effectively perform their important oversight roles, such as the ability to make inquiries and recommendations about an investigation report.
Further consideration is also being given to prescribing additional agencies as investigative agencies. This will give disclosers additional avenues through which to make a disclosure and will leverage the investigative agencies’ expertise and specialist powers under their own legislation to address wrongdoing.
The Moss Review recommended that the Act be reformed to focus on more serious wrongdoing and misconduct – and the Government has agreed.
This will be achieved by excluding solely employment-related grievances from the operation of the Act. What that means is, for example, that individuals who might feel personally aggrieved by being overlooked for a promotion will no longer be able to use the Act to pursue their grievance. This will free up agencies’ valuable resources to focus on allegations of more serious wrongdoing. It will also ensure existing accountability mechanisms that are designed to handle employment related grievances are utilised. As a result, we’ll see more efficient and effective resolution of disclosures, and better outcomes for those involved.
The Government’s proposed reform agenda also includes:
- removing the general secrecy offence, which is not fit for purpose and is limiting the ability of agencies to respond to alleged wrongdoing
- making it easier for disclosers to get legal advice about making a disclosure, and
- enabling smaller agencies to leverage the experience and resources of their portfolio department by allocating disclosures to their portfolio department for investigation.
Additional reforms beyond the Moss Review
The Moss Review provides a strong blueprint for reform, but experience with the Public Interest Disclosure Act suggests the reforms should go further. That is what the Government is currently considering.
As outlined in the Government’s Response to the Moss Review, the Government is actively considering additional reforms to complement the suite of recommendations to which we have agreed, and bring the public sector scheme more in line with the recent reforms to the private sector whistleblowing scheme.
The Government supports measures that would increase the coherence and simplicity of the Act. To overcome the complexities embedded in the current Act, consideration will be given to restructuring the Act in a way that guides the discloser and agencies through the process in a chronological order. This is critical to ensure that disclosures are made in accordance with the Act, and that disclosers and agencies alike can feel confident in the disclosure process.
The Moss Review also observed that disclosers do not feel adequately supported under the current scheme. This perceived lack of support may discourage people from reporting public sector wrongdoing, ultimately leading to a public service that is less accountable and less trusted by the public.
The Government has considered and examined a range of reforms to improve support for disclosers and those involved in disclosure investigations. This includes considering aligning provisions in the Public Interest Disclosure Act with the recently reformed private sector whistleblowing scheme.
This may include expanding protections against reprisal actions by:
- adopting the private sector’s more expansive definition of ‘detriment’, which recognises that harm is not limited to a person’s employment, with other examples including damage to a person’s property, reputation, or business or financial position,
- reversing the burden of proof in civil claims, making it easier for the discloser to prove their claim and access remedies, and
- introducing a new ground for relief where a person with a duty to protect a discloser from detriment fails in that duty.
The Government’s consideration of these additional and complementary reforms demonstrate our strong commitment to enhancing integrity and accountability in the public sector; and to more closely aligning the Public Interest Act with its original objectives.
Government response to the PJCCFS Whistleblower Report
The Government has also committed to implementing recommendations made by the Joint Parliamentary Committee on Corporations and Financial Services, in its Inquiry into Whistleblower protections in the corporate, public and not-for-profit sectors.
These reforms will better clarify that the Public Interest Disclosure Act applies to former public officials – confirming that any current or former public official can receive the significant protections afforded by the amended Act.
The reforms will not only secure greater protections against reprisals for those who make disclosures, but also those who could make a disclosure – regardless of whether or not they actually do. This amendment will extend protections to persons who may suffer a reprisal
due to being directly or indirectly associated with a whistleblower, or because they have become aware of information that could enable them to make a disclosure. It will also align the Public Interest Disclosure Act with other whistleblowing legislation, including the Registered Organisations Act.
Government response to the PJCIS Press Freedoms inquiry
These reforms to the Public Interest Disclosure Act are not the only way we are strengthening protections for whistleblowers.
The Government has also agreed to implement all the recommendations in the Parliamentary Joint Committee on Intelligence and Security’s Inquiry into Law Enforcement and Press Freedoms. This will include:
- undertaking a review of secrecy provisions and protections for public interest journalism in Commonwealth legislation
- ensuring that only Supreme or Federal Court judges can issue warrants against journalists for disclosure offences
- ensuring warrants can only be issued against journalists for disclosure offences after consideration by a Public Interest Advocate, and
- enhancing reporting requirements in relation to warrants exercised against journalists.
The Government is working to implement the other reforms proposed by the PJCIS. These include amending the Public Interest Disclosure Act to require intelligence agencies to maintain closer contact with the Inspector-General of Intelligence and Security during a public interest disclosure investigation. And reforms that require intelligence agencies to notify the Inspector-General earlier if the discloser says the disclosure is urgent.
These reforms will enhance the oversight of intelligence agencies by the Inspector-General of Intelligence and Security, and ensure that allegations of wrongdoing involving an intelligence agency or intelligence information is brought to the attention of the Inspector-General expeditiously. They will also ensures that the discloser is kept informed of the progress of a disclosure investigation, where the disclosure involves intelligence information.
The Parliament will also be given more information and oversight of how disclosures are being handled by agencies. The Public Interest Disclosure Act will be amended to require the Commonwealth Ombudsman to table aggregated statistics in Parliament every six months, in line with the Parliamentary Joint Committee’s recommendation.
These reforms will complement action that the Government is already taking to protect journalists and safeguard the freedom of the press, including action to:
- issue Ministerial Directions to the Australian Federal Police and Commonwealth Director of Public Prosecutions, which provide safeguards before journalists can be investigated or prosecuted for certain offences, and
- redraft the general secrecy offences to include – for the first time – specific defences for those engaged in public interest journalism.
The Australian Government is absolutely committed to the principle of a free press and has a comprehensive reform agenda for enhancing trust and accountability in the public sector.
Ensuring the integrity of our public institutions is critical to democracy. Trust and confidence in our democratic institutions has never been more important. Key to building, fostering and maintaining this trust is for the Australian community to be assured that our institutions are working effectively, with our public servants serving the public. The Public Interest Disclosure Act plays a vital role. We are committed to ensuring that it is robust, effective and fit for purpose.