Chapter 1 Introduction
On 29 October 2012, Mr Andrew Wilkie MP introduced a private Members’
bill, the Public Interest Disclosure (Whistleblower Protection) Bill 2012 (the
Wilkie Bill) and the Public Interest Disclosure (Whistleblower Protection) (Consequential
Amendments) Bill 2012 into the House of Representatives.
On 21 March 2013, the Attorney-General the Hon Mark Dreyfus QC
introduced the Public Interest Disclosure Bill 2013 (PID Bill) into the House
Scope of the bills
The Wilkie Bill aims to strengthen public integrity by encouraging and
facilitating the disclosure of corruption, maladministration and other
wrongdoing in the Commonwealth public sector. It will do so by providing
protection for public officials to make such disclosures.
The Wilkie Bill will introduce measures designed to create a
pro-disclosure culture as well as systems and procedures that will encourage
people to report wrong-doing internally in the public sector, support them and
protect them wherever possible and manage them effectively.
The Wilkie Bill provides greater legislative provisions around the issue
of third party disclosures to recipients such as journalists.
The Wilkie Bill includes provision to enable payment of compensation to those
making a public interest disclosure. This is ensuring that if reprisal takes
place, the whistleblower can be compensated to protect them from reprisal for
exposing wrongdoing in the public interest.
The Public Interest Disclosure (Whistleblower Protection) (Consequential
Amendments) Bill provides clarification amendments to the Fair Work Act 2009
(FWA), the Ombudsman Act 1979 and the Parliamentary Service Act 1999
and the Public Service Act 1999 in connection with the Wilkie Bill.
The Public Interest Disclosure Bill 2013 (the PID Bill) will establish a
legislative scheme to investigate allegations of wrongdoing in the Commonwealth
public sector and provide robust protections for current and former public
officials who make qualifying public interest disclosures under the scheme.
The PID Bill will implement many of the recommendations of the House of
Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower
Protection: a comprehensive scheme for the Commonwealth public sector.
This report, described by some inquiry participants as the Dreyfus report
after its Committee Chair, the Hon Mark Dreyfus MP QC, will be referred to in
this report as the LACA report.
The PID Bill provides for the oversight of the scheme by the Commonwealth
Ombudsman (the Ombudsman) and the Inspector-General of Intelligence and
Security (IGIS). The Ombudsman is also responsible with the IGIS for the
determination of standards to assist the scheme.
The proposed scheme facilitates disclosures being reported to and
investigated within government and is designed to promote the integrity and
accountability of the Australian government public sector.
The PID Bill will provide protection for a public official who has made
a qualifying public interest disclosure, will provide immunity from criminal,
civil and administrative liability for making a public interest disclosure and
will make it an offence to take reprisal action against any person as a result
of making a public interest disclosure.
Remedies from the Federal Court and in some circumstances under the FWA
will be available to disclosers who have suffered reprisals.
Referral of the Bills
On 1 November 2012 the Selection Committee referred the Wilkie Bill and
the associated Public Interest Disclosure (Whistleblower Protection)
(Consequential Amendments) Bill 2012 to the House of Representatives Standing
Committee on Social Policy and Legal Affairs (the Committee) for inquiry and
The Selection Committee suggested that the Committee further examine the
detail contained within the bill(s) and any unintended consequences that may
On 21 March 2013 the Selection Committee referred the PID Bill to the
House of Representatives Standing Committee on Social Policy and Legal Affairs
for inquiry and report.
The Selection Committee suggested that the Committee consider the
circumstances under which a protected disclosure may take place.
In 2008, the Attorney-General, the Hon Robert McClelland MP on behalf of
the then Cabinet Secretary, Senator the Hon John Faulkner, asked the House of
Representatives Legal and Constitutional Affairs Committee (LACA Committee) to
inquire into and report on whistleblowing protections within the Australian
Government public sector.
The LACA Committee tabled Whistleblower Protection: a comprehensive
scheme for the Commonwealth public sector in February 2009, making
22 recommendations including the introduction of a Public Interest Disclosure
Bill designed to promote accountability and integrity in public administration.
The Government responded to the LACA Report in March 2010, agreeing with
many of the recommendations and indicating that it was committed to developing
best practice legislation and would develop legislation for introduction later
Conduct of the inquiries
The Committee advertised a public hearing and a call for submissions on
7 November 2012.
The Committee received 14 submissions and one supplementary submission
from a range of individuals and organisations across Australia. These
submissions are listed at Appendix A and can be accessed from the inquiry
The Committee held a public hearing on 30 November 2012. A list of
witnesses that appeared before the Committee is at Appendix B.
The Committee called for submissions on 2 April 2013.
The Committee received 22 submissions from a range of individuals and
organisations across Australia. These submissions are listed at Appendix A and
can be accessed from the inquiry website.
Scope of the report
Chapter 2 examines the nine parts of the Wilkie Bill and the Public
Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill
2012, providing scrutiny of the detail of each part. Key issues and additional
comments made on the detail of the legislation are discussed. The Committee has
also reported on any unintended consequences as identified.
Chapter 3 examines the five parts of the PID Bill. The conditions under
which a protected disclosure could take place are considered in some detail, as
well as selected issues which arose during the inquiry including the coverage
of the Bill and when it is appropriate to make an external disclosure. The
Committee has considered the conditions under which a protected disclosure
could take place.
Chapter 4 presents the Committee’s comments and recommendation regarding
The purpose of this advisory report is for the Committee to scrutinise
the content and detail of all of the Public Interest Disclosure Bills before
the Parliament and the efficiency of the bills in achieving their stated
objectives. It is for the Parliament to determine the merits of any proposed public
interest disclosure protection scheme. The report aims to aid the Parliament in
determining how it will proceed on these bills.