Chapter 2 Public Interest Disclosure (Whistleblower Protection) Bill 2012
The Wilkie Bill is designed to provide a foundation for a culture of
public interest disclosure in the Australian public sector, identifying what is
a public interest disclosure, who is entitled to make one and to whom as well
as setting a framework for agencies and their oversight.
The Wilkie Bill contains nine parts:
- scope of the Act;
- making a public interest
- public interest disclosures
to third parties;
- obligations of
- legal protections for
- oversight of public
interest disclosures; and
Professor AJ Brown, a witness at the public hearing, acknowledges that
he had a role in advising the Member for Denison on the formation of the Wilkie
Bill, along with a range of other people and groups.
There is wide ranging support for some form of public
interest disclosure legislation from submitters to the inquiry and participants
in the public hearing.
Some of the issues that participants in the inquiry draw the Committee’s
attention to include the language or intent of the bill. Some participants made
more general comments which are discussed below.
Some submissions are less supportive of the Wilkie Bill ,
and its research background or recommended that the bill
be extended to include a whistleblower protection agency or public interest
Professor AJ Brown submits that there are three areas, identified by the
LACA Report and in research, that need to be detailed in any public interest
- the introduction of a
pro-disclosure culture and systems and procedures that will encourage people to
report wrong doing internally in the public sector, support them and protect
them where possible and manage them effectively;
- guidance for when
people should be able to go public as a last resort or in exceptional
compensation for people who blow the whistle.
Several participants in the inquiry state that
there is a clear need for a legislated public interest disclosure protection
scheme, clarifying that this would provide greater protection for
whistleblowers than what currently exists in the Public Service Act 1999.
Scope of the Act
The Wilkie Bill creates a
comprehensive definition of a public interest disclosure. The definition
includes that the public official should honestly believe on reasonable grounds
that the information disclosed demonstrates disclosable conduct. It also
includes circumstances where the information disclosed tends to demonstrate
disclosable conduct regardless of the belief of the public official making the
public interest disclosure.
The Law Council of Australia (the Law Council) highlights several
drafting issues. They
- query whether the Wilkie
Bill covers subcontractors and the
employees of contractors referred to in clause 11(a)(ii);
- consider that terms
such as specific and substantial as used in clause 9 are
- highlight that the proposed
legislation as drafted does not define an action contrary to a law of a State
or Territory; and
- note that in the situation
referred to above, the legislation should ensure that any breach of State or
Territory law be referred to the relevant State and Territory police, which is
not currently contained within the bill.
The Law Council considers that these issues should be further considered
before the bill is enacted.
The Community and Public Sector Union (CPSU) notes the term ‘statutory
agency’ was not included in clause 10 of the bill. They consider that the bill
intends to cover statutory agencies, as they are referred to in clause 14 and
consider that the Wilkie Bill should be
amended to ensure that agencies are explicitly mentioned in clause 10.
The CPSU also suggests that further information and guidance that
illustrates the forms of disclosable conduct should be provided to those
covered by the legislation.
Civil Liberties Australia supports the detailed meanings in the bill such
as defining a public interest disclosure, delineating protected public interest
disclosures and detrimental actions and considers they provide greater
certainty and clarity.
Whistleblowers Australia Inc provide an alternative wording for the
objects which places the public interest at the centre of the definition. They
consider that ‘the public interest’ is the primary purpose of a public interest
Whistleblowers Australia Inc also suggest expanding the definition of ‘corrupt
conduct’ as listed in clause 9 of the bill to include:
…conduct that conceals, or is engaged in for the purpose of
concealing wrongdoing, otherwise known as a ‘cover-up’.
Making a public interest disclosure
The Wilkie Bill identifies who
may make a public interest disclosure and to whom it may be made. In addition,
it specifies how a public interest disclosure can be made.
The bill provides details of the
actions that must be taken upon receipt of a public interest disclosure.
The Law Council believes that the Wilkie Bill increases the scope of
people who are able to make a public interest disclosure. They contend that
this goes beyond the coverage of section 16 of the Public Service Act 1999
to contractors and subcontractors and the officers and employees of the
contractors and subcontractors.
In contrast, Whistleblowers Australia Inc argues that the scope of who
can make a public interest disclosure under the proposed legislation is not
wide enough. They propose that protection should be opened up to anyone who
makes a disclosure in the public’s interest.
The Law Council is of the view that the Wilkie Bill recognises and addresses the fact that
individuals may need to be encouraged to make public interest disclosures.
The CPSU notes that under COAG arrangements, there are likely to be State
and Territory employees working on Commonwealth projects and that State and
Territory employees working in these arrangements should be referenced in the Wilkie
The Tax-Justice Network Australia (TJN Australia) is supportive of the
scope of definition of public official contained within the Wilkie Bill which they consider would extend to
non-Australian Commonwealth employees working for agencies such as AusAID and
The Ombudsman considers that the bill should
be examined to ensure that it is clear to whom someone should go if they want
to make a public interest disclosure.
Part 4 of the bill provides detail on the obligations that need to be
met when a public interest disclosure has been received. The bill proposes that the details of the obligations
vary based on the nature of the disclosure.
Critical features of the bill include
how public interest disclosures are investigated and who must be kept informed
during an investigation.
The bill provides that the
discloser must be kept informed about the progress of an investigation and that
the investigating entity must have regard to procedural fairness and to the
risk of any detrimental action.
The CPSU is concerned that the Wilkie Bill as drafted allows an investigating agency the
choice about whether it treats some public interest disclosures according to investigative
procedures established for a code of conduct breach under section 15(3) of the Public
Service Act 1999, or in accordance with standards to be set by the
Ombudsman in clause 54 of the bill.
They consider that this introduces the possibility that agencies could
utilise the investigative procedure which is of a lesser standard, which in the
opinion of the CPSU, could weaken the public interest disclosure scheme.
The CPSU considers that there should be greater guidance to agencies around
Further the CPSU considers that it is important that any legislation
state that there is an obligation that an investigation be completed and a
decision made about the disclosable conduct. They consider the bill as drafted
implies this but as it is such an important issue, it should be specifically
In addition, the CPSU considers that there should be an obligation to
investigate the matter within a reasonable timeframe.
They suggest that this could be provided for in the bill or the Ombudsman’s
The Law Council noted that there are guidelines for procedural fairness
for persons in relation to whom a whistleblower report has been made under the Public
Service Act 1999 based framework. They suggest that these guidelines may
operate in parallel with this proposed legislation but that there should be
consideration of this issue when agency procedures are developed.
Whistleblowers Australia Inc would like to see publishing of the reasons
for a final decision by an agency about an investigation, including a decision
not to investigate, within a month of the date of decision.
Whistleblowers Australia Inc suggest that the bill should require an
agency to publicly state that a public interest disclosure investigation is
taking place. They consider that making a public interest disclosure secret or
confidential is counterproductive.
Transparency International Australia praised the bill for providing
specific detail on particular ways of investigating disclosures which may
contain sensitive defence, intelligence or law enforcement information.
Public interest disclosures to third parties
The circumstances and limitations under which public interest
disclosures to third parties may take place are detailed in part 5 of the bill.
The CPSU strongly contends that consideration should be given to
allowing third party disclosures in situations that pose a serious and
immediate threat to public health and safety. They consider that these
grounds are not addressed in the bill.
The Law Council notes that the bill recognises the important role of
media in drawing attention to improper conduct in the government. The Law
Council notes that the bill does not give general licence for disclosure to
journalists, but provides a:
…balanced and reasonable framework to determine when the
protection of the legislation would extend to disclosures by public officials
The TJN Australia welcomes the clarification provided by the bill around
public interest disclosures to third parties. They contend that this is
unlikely to cause a ‘flood of public disclosures’ particularly when considering
the safeguards and criteria put in place by the bill.
The CPSU queries the interaction of the oversight role of the Ombudsman
as detailed in clause 50(2) with the scenario addressed in clause 31(e) where a
public interest disclosure to a third party is allowed, given that there was
evidence of a disclosure and it has been investigated but no action has been
In this situation the CPSU considers that it would be inappropriate for
a person to make a third party disclosure where there was a failure to take
action if the matter was still under review by the Ombudsman. They consider
that the Ombudsman should be given the opportunity to review the process before
a public interest disclosure to a third party is allowed.
Civil Liberties Australia consider it is necessary and best practice to
have an avenue for disclosing information that is in the public interest, when
internal avenues and existing reporting avenues have failed to deal with the
The Media, Entertainment and Arts Alliance welcome the proposed
legislation and commented that there was continual debate amongst journalists
about whether this or any legislation could go far enough in legitimising a
circumstance where a person would make a third party disclosure to a
Transparency International Australia considers the bill sets clear
constraints on when and how whistleblowers should go public or to a third party.
The IGIS considers that further scrutiny is required regarding the
proposed provision allowing a person to disclose sensitive information when
they believe that the public interest served by the disclosure outweighs the
public interest served by the protection of sensitive information. The IGIS suggests
that it would be very challenging to make that kind of assessment.
Obligations of agencies
The obligations of agencies in relation to public interest disclosures
are set out in part 6 of the bill.
The bill details the role of the head of the agency and that the
agency’s procedures around public interest disclosures must be consistent with
the standards prepared by the Ombudsman.
Clause 35 of the bill details a series of requirements for an agency’s
procedures regarding public interest disclosures, including encouraging
disclosing any matter considered to be wrongdoing.
Further, the bill provides detail on appropriate confidentiality
The Australian Public Service Commission (APSC) raises the issue of
existing powers in other legislation, such as how the role of the Public
Service Commissioner in maintaining standards of conduct in the public service,
would mesh with new powers in public interest disclosure legislation.
The APSC considers that in some cases, this could lead to confusion and
different interpretations over roles and powers.
There may be some difficulties with the bill as drafted,
there may be some difficulties with the commissioner being able to fulfil his
existing responsibilities. There are existing powers so it is not necessary to
create new powers in the PID bill.
The APSC also questions how the bill would operate within the existing
whistleblower scheme that applies in the public service.
They considered that there needed to be further examination of how the
requirements would work together in order to assist employees and employers understand
Professor AJ Brown informed the Committee that he considered only a
small number of amendments would be necessary to sort out issues such as these.
The CPSU raised the possibility that the relevant unions could be
involved when agencies are developing procedures for handling disclosures as
proposed in clause 35 of the bill.
Legal protection for disclosures
The Wilkie Bill outlines the legal protection for disclosers in Part 7.
The bill provides for immunity from liability including the explicit
statement that no sanction may be imposed upon the discloser as a result of the
This part provides details of actions which are considered detrimental
action and in addition, clause 41 allows that detrimental action is adverse
action for the purposes of the FWA and attracts the remedies available under
The TJN Australia notes that it is vital that people making a public
interest disclosure are protected from detrimental action or victimisation. The
TJN Australia supports such inclusions including clause 46 of the bill which
makes an offence of victimising a whistleblower.
The CPSU is supportive of the measures in the bill that provide legal
protection and immunity from liability for a person who makes a public interest
disclosure. They consider that any
remedies should be quick, accessible and affordable.
The CPSU told the Committee that there was merit in considering the FWA and
in defining the process of making a public interest disclosure a workplace
The organisation Blueprint for Free Speech highlighted how this
legislation brings into consideration the compensation provisions available
under the FWA, namely:
- the availability of
the Fair Work tribunal; and
- protection from
costs, where if someone brings an action in the Federal Court or Federal
Magistrates Court, this bill enables an applicant to use the provisions of the FWA
so as to not be liable to bear the respondents costs, unless they make a
vexatious claim or act inappropriately in the course of the proceedings.
Blueprint for Free Speech considers that these are black-letter
additions which could act to encourage someone to make a public interest
The Law Council is pleased that the bill lists the legal liabilities from
which a person is expressly immune when making a public interest disclosure.
Further the Law Council supports the approach of providing positive
remedies through a range of means in clauses 40 – 46 and consider that these
protections provide positive remedies for persons making public interest
disclosures who may suffer adverse consequences as a result of the disclosure.
The Law Council raise the concern that the bill provides very little
protection from detrimental action for contractors.
They describe a potential situation where a contractor may suffer detrimental
action as a result of a public interest disclosure, by not being awarded any
more contract work.
The TJN Australia considers that the bill provides a means to enable a
person making a public interest disclosure to access compensation for any
detrimental action or victimisation suffered.
Transparency International Australia and Civil Liberties Australia are
supportive of the provision in the Bill of a comprehensive system of checks and
balances to discourage frivolous or vexatious disclosures.
Civil Liberties Australia are of the view that the government is obliged
to ensure that detrimental acts or omissions do not occur and to protect and
support employees in the face of risks of detrimental action. They contend that
the provisions in part 7 of the bill represent best practice and should be
adopted in other jurisdictions.
Whistleblowers Australia Inc considers that the bill should include more
‘upfront’ protection to a person making a public interest disclosure and should
proceed on the presumption that protection is to be given unless decided
otherwise by a court.
The IGIS highlighted an issue in the current compensation regime. At
present the IGIS can conduct inquiries and investigations, and can recommend
compensation if they conclude that someone has suffered detriment. However, the
IGIS has no means to enforce this as the agency determines if compensation is
The Law Council is concerned that a person considering making a public
interest disclosure may be concerned about the provision relating to loss of
protection. They consider that the agency procedures referred to in clause 35
should include access to legal advice.
Oversight of public interest disclosures
The Wilkie Bill proposes a significant role for the Ombudsman and the
IGIS. These roles are detailed in Part 8 of the Bill.
The Ombudsman and the IGIS may undertake a range of functions such as
reviewing decisions and conducting investigations either independently or may
have shared arrangements.
The Ombudsman is also required to publish standards and produce an
annual report on the operations of the proposed legislation.
The Ombudsman is supportive of legislation which leads to more effective
and efficient public administration and considers the role proposed by the
Wilkie Bill to be compatible with other roles undertaken by the Ombudsman’s office.
The CPSU considers that protecting the integrity of the public interest
disclosures scheme should be a key role of the Ombudsman. They consider that the
Ombudsman must play a role in leading such cultural change.
The IGIS supports the proposed role in the bill, considering it to be appropriate
and aligned with the current functions of the office.
The Law Council considers that the role of the Ombudsman as proposed by
the legislation is appropriate given the role of the Ombudsman in oversight of
fair and proper administration, as well the fact that the Ombudsman reports to
Civil Liberties Australia welcomes the role of the Ombudsman in ensuring
just outcomes for public officials who make public interest disclosures as well
as in education and training programs about public interest disclosures.
The CPSU notes that it is important that there is increased ongoing
funding for Ombudsman’s office to fulfil this role.
CPSU queries the role of the Ombudsman in approving agency procedures.
They consider the legislation as drafted does not make it clear at what stage
the Ombudsman is involved in the development of the agency procedures and that
similar to the conclusion in the LACA Report the Ombudsman should be involved
before they are finalised and published.
The CPSU consider that having the Ombudsman providing guidance about the
agency procedures for public interest disclosures would be a strong driver for
The Whistleblowers Action Group Qld Inc does not support the role of the
Ombudsman as designated by this proposed legislation.
They consider there have been
…gross failures by watchdog authorities such as the
Ombudsman’s Office to fulfill their role of investigating and reporting such
systemic wrongdoing within the agencies for which the watchdog authorities like
the Ombudsman have had oversight.
Part 9 of the bill provides that the bill as drafted does not impact on
any other related legislation.
In addition this section creates offences for using and divulging
protected information as well as outlines protections for officials from
liability involved in public interest disclosure.
Members of Parliament
The Wilkie Bill proposes to include Members of Parliament and Senators
as persons about whom allegations may be made under the scheme.
The proposed legislation requires that disclosures about Senators are
made to the President, about Members of Parliament to the Speaker and about Members
of Parliament Staff Act 1984 (MOPS) employees to the MP/Senator, or Speaker
The CPSU expresses concern about the potential for confusion arising if
there was a ‘potential legislative whistleblowing scheme’ and the Parliament’s
existing role in managing any allegations of misconduct by Members of
The CPSU explains that having multiple avenues to deal with allegations
of wrongdoing by Members of Parliament would not be useful. They also consider
that inclusion of Members of Parliament in any whistleblowing scheme could
cause it to become overly politicised.
Coverage of Members of Parliament and their staff
As noted above the Wilkie Bill includes Members of Parliament and people
employed under MOPS as public officials who are able to make a public interest
disclosure under this legislation.
The LACA report recommended that persons employed under MOPS be included
in any public interest disclosure legislation, however the government response
did not agree with this recommendation.
Civil Liberties Australia described the inclusion of MOPS staff as
The CPSU raised the concern that people employed under the MOPS Act should
have the same protections as everyone else. They considered that there needed
to be more clarity around this issue.
Members of Parliament as recipients for public interest disclosures
The LACA report recommended that Members of Parliament be included as a
category of alternative authorised recipient of public interest disclosures,
however the government response did not agree with this recommendation.
Professor AJ Brown told the Committee that it is not necessarily best
practice for the legislation to explicitly include Members of Parliament as a
person to whom a public interest disclosure can be made, as exists in NSW and
QLD public interest disclosure legislation.
Professor AJ Brown explained:
I do not believe those New South Wales or Queensland
provisions are really best practice in terms of singling out individual members
of parliament as disclosure recipients because I think that, for the sorts of
reasons that Mrs Bishop articulated, it is part of their job.
Professor AJ Brown further detailed that he considers that clause 32 of
the legislation, which deals with disclosures to third parties, provides that a
public interest disclosure can be made to Members of Parliament, without them
being named specifically as a recipient.
…the public official may make a public interest disclosure to
a person—that is, any person—whom they reasonably believe can assist them to
ensure that appropriate action is taken.
In contrast, Blueprint for Free Speech considers that Members of
Parliament should be included as recipients for public interest disclosures.
A separate agency
Whistleblowers Action Group Qld Inc. supports the formation of a
Whistleblower Protection Agency which has the survival of the whistleblower as
its main function.
Whistleblowers Australia Inc would like to see the bill amended to
create a separate whistleblower protection agency or public interest disclosure
agency to ensure that the whistleblower is kept safe and treated with dignity
False claims –‘qui tam’ remedies
Whistleblowers Australia Inc would like to see the bill amended to
provide for a ‘qui tam’ action or a US style False Claims Act.
Dr Kim Sawyer considers that False Claims Act legislation needs
to be established in conjunction with appropriate provisions for an integrity
Professor AJ Brown believes that this type of legislation is becoming
more likely but made the point that the public interest disclosure legislation
was developed to respond to the LACA report and government response.
I think the time is increasingly approaching when
comprehensive legislation on that front will serve Australia well and
especially serve the Commonwealth well.
Public Interest Disclosure (Consequential Amendments) Bill 2012
This bill contains amendments to legislation where necessary to
facilitate the introduction of the Public Interest Disclosure (Whistleblower
Protection) Bill 2012.
Whistleblowers Australia Inc. would like to see the bill extend to apply
to the Australian Federal Police and section 70 of the federal criminal code.