Chapter 3 Public Interest Disclosure Bill 2013
The inquiry into the Public Interest Disclosure Bill 2013 (the PID Bill)
follows the Committee’s inquiry into the Wilkie Bill in 2012.
The Senate Legal and Constitutional Affairs Committee is also conducting
an inquiry into the Public Interest Disclosure Bill 2013. Where appropriate,
the Committee has used submissions to the Senate inquiry. All the submissions
to that inquiry can be found on that Committee’s website.
The Committee has focussed on the major issues of the PID Bill which
were provided in evidence. Some of the issues that arose during this inquiry
were previously raised during the inquiry into the Wilkie Bill and have been
addressed in Chapter 2.
Detail of the Bill
The PID Bill contains five parts:
- protection of
The Committee inquiry process leading to the introduction of the PID
Bill into the House of Representatives on 21 March 2013 was outlined in Chapter
Many participants in the inquiry express a view that the introduction of
the PID Bill was long overdue.
Professor AJ Brown describes:
…it is now clear that current legal and administrative
arrangements in the Commonwealth’s public integrity system are not enough.
Comprehensive legislative reform remains needed to establish the systems, set
the standards for and remove the legal barriers that currently impede the
encouragement and protection of public interest whistleblowing by Commonwealth
officials, officeholders, contractors and contractor employees.
Transparency International Australia state that they have urged
successive Commonwealth governments to enact a comprehensive public interest disclosure
Act covering all Commonwealth officials.
The Tax Justice Network Australia (TJN Australia) believes there is a
need for protection for whistleblowers in the public sector that is in line
with OECD Working Group on Bribery’s assessment and recommendations.
Although there are protections contained within existing legislation, the
Committee was told by several submitters that the current protections contained
in section 16 of the Public Service Act 1999 are wholly inadequate and
that legislative reform is essential and long overdue.
This is discussed later in this chapter.
Professor AJ Brown considers there are 10 key principles that need to be
reflected in any public interest disclosure legislation. These include:
- it must promote an ‘if
in doubt can report’ attitude for public officials;
- alleged public
interest related wrongdoing in all areas of Commonwealth government should be
- any carve-outs or
special procedures should be fully justified, not just blanket exclusions or
- obligations on
agencies to protect and support should be direct, proactive and preventative;
- implementation should
be supported by a single oversight agency;
- oversight agency
should be properly resourced to do the job;
- reporting and
protection systems should not be complaint dependent;
- rules on when
officials may/should disclose to the media should be clear and workable;
- compensation remedies
should be clear, simple and accessible; and
- there should be basic
safeguards against abuse/misuse of system.
The introduction of legislation for public interest disclosure has been
generally welcomed by participants in the inquiry.
There are, however, concerns about some aspects of the PID Bill. These
concerns range from aspects of drafting to the scope of the proposed scheme.
Comments also detail that the proposed legislation is not entirely in
line with the recommendations of the LACA Report and progress in state
The Accountability Round Table submits that the PID Bill in its current
form falls short of best practice and considers that it fails to meet its
The National Tertiary Education Union states:
The Union broadly supports protections for public officials
who act as whistleblowers, we do not believe that this legislation adequately
performs this task.
Dr Suelette Dreyfus considers there are several problems with the PID
Bill including that it is too confusing and complicated in parts and inhibits
the discloser in making their disclosure. Additionally she notes that the PID
Bill does not apply to politicians or matters concerning public policy.
Mr Howard Whitton submits that due to the complexity of the PID Bill:
It is likely that most intending whistleblowers will need a
lawyer at their elbow to understand the many procedural steps required for a
disclosure to be granted ‘protection’ and even then it is not possible to be
certain ab initio that a given
disclosure will in fact be protected.
Civil Liberties Australia considers the role of public interest
disclosure legislation is to encourage the reporting of wrongdoing but
criticise the PID Bill as not representing best practice.
The National Whistleblowers Information Centre regard the bill with some
concern. They state:
Unless there are very dramatic and significant improvements
to this Bill, it will do little to promote public confidence in the legislation
and do nothing to encourage whistleblowers to come forward or to protect
whistleblowers when they do so.
The Rule of Law Institute of Australia state:
The barriers put in the way of potential whistleblowers who
may be motivated purely by the public interest and have few resources,
especially compared to those available to government, are multiple and
expressed in complex terms.
In contrast, the Ombudsman is supportive of the introduction of a public
interest disclosure scheme and the role that the PID Bill proposes for the
office of the Commonwealth Ombudsman.
The IGIS also supports the objectives of the PID Bill and considers that
the oversight and investigative functions allocated to the IGIS appear to align
well with the current role of the IGIS.
In spite of their concerns with the bill the National Whistleblowers
Information Centre contend that the PID Bill must become law. They contend:
It is easier for public opinion or political policy to fix
ineffective public interest disclosure legislation than it is to force any
Government to introduce legislation which would promote public sector
accountability, public interest disclosures and whistleblower protection.
This section of the PID Bill provides details on the commencement,
objects, provides an overview and also defines terms.
Dr Kim Sawyer comments that the proposed legislation is over-focussed on
defining terms such as public official, agencies, detrimental actions and general
penalties. He considers that this is an excessively bureaucratic approach which
is likely to be ineffective.
The National Whistleblowers Information Centre is unsure why the bill
does not use the term ‘whistleblower’, considering it incomprehensible that
individuals who make a public interest disclosure are not referred to as
whistleblowers. They believe this is another example of systemic public sector
discrimination and prejudice against whistleblowers.
Professor AJ Brown considers that the PID Bill could benefit from being further
simplified for maximum clarity and certainty. He contends that the current ‘simplified
outline’ sections such as those in clauses 9 and 25 may be misinterpreted to indicate
that the PID Bill does more than it actually does.
Protection of disclosers
The protections to disclosers offered under the PID Bill are covered in
Part 2 of the bill. The PID Bill ensures that an individual who makes a
public interest disclosure is not subject to any civil, criminal or
administrative liability for making the disclosure. This does not apply to
false or misleading statements by the individual making the public interest
The proposed legislation provides support and protection through a
combination of deterrence and compensation. This includes orders under the
Federal Court and Federal Circuit Court as well as remedies under the FWA.
The bill provides direct support by the creation of a criminal offence
for reprisals, and avenues for civil remedies. The bill highlights that prosecutions
relating to reprisals will focus on the individual making the reprisal, rather
than attempting to prove that a public interest disclosure was made.
Under the PID Bill it will be an offence to identify an individual who
makes a public interest disclosure.
There are existing protections for public servants contained in section
16 of the Public Service Act 1999 which has been in place for over a
This framework provides explicit protection for APS employees from
victimisation and discrimination for reporting suspected breaches of the APS
Code of Conduct. In addition, the Public Service Regulations provide a
framework for the investigations of such reports.
The Australian Public Service Commission (APSC) notes that these
provisions will be amended from 1 July 2013 when the Public Service
Amendment Act 2013 and the Public Service Regulation 2013 come into
force. Some aspects of the scheme will be clarified ensuring that a complaint
made by an APS employee will be handled under the framework that is best able
to provide an appropriate outcome.
The APSC observes that the government has announced its intention to introduce
a bill to make consequential amendments in support of the PID Bill, including
the repealing of section 16 of the Public Service Act 1999 and the Parliamentary
Service Act 1999.
The APSC raises the concern that the proposed legislation does not
consider the statutory responsibilities of statutory office holders.
Specifically the APSC notes that the PID Bill does not oblige the Ombudsman and
IGIS to transfer matters which are the statutory responsibilities of the Public
Service Commissioner or the Merit Protection Commissioner to those office
The APSC considers that this could present a risk where providing
multiple means to make disclosures could result in forum shopping. The APSC
warns that this could have the unintended consequence of undermining confidence
in public administration.
In contrast, the Ombudsman considers that the PID Bill does recognise
the existing integrity framework and role of the investigative agencies.
The Ombudsman indicates that as there are already existing mechanisms
for the investigation of most serious problems, the nature of the problem
should determine the means of investigation.
For example the Ombudsman suggests that a public interest disclosure about
fraud should be dealt with under the Fraud Control Guidelines and a disclosure about
a code of conduct violation should be investigated in accordance with the
procedures of the Australian Public Service Commission.
The Ombudsman believes that having a flexible approach to investigating
public interest disclosures means that existing investigative processes,
experiences and expertise are recognised and can be appropriately utilised.
False and misleading statements
Clause 11 of the PID Bill provides that an individual who makes a public
interest disclosure that is false or misleading, will not be protected under
the provisions of this bill.
A wide range of submitters question the wording of this clause and
express concern that the specific language used limits protection.
The ABC believes that protection should only be lost for disclosures
which are ‘knowingly’ false or misleading. They note that, as currently
drafted, a whistleblower would not be protected by this scheme if the
information they disclosed turns out to be false or misleading, despite their
having made the disclosure on reasonable grounds.
The Joint Media Organisations and the Special
Broadcasting Service (SBS) agree that protection should
not be provided for knowingly making a false and misleading statement.
The Accountability Round Table consider that the definition of what
constitutes a public interest disclosure is too strict and could lead to a
potential whistleblower acting in good faith, losing protection if their
disclosure is subsequently found to be false, mistaken either wholly or partly
A range of other submissions support the inclusion of
the term ‘knowingly’ in clause 11.
Several submitters suggest that the term
‘recklessly’ should also be included. However Professor AJ Brown cautions that the
term ‘recklessly’ should be avoided, as it is too uncertain and in his view could
raise doubts in the mind of the discloser as to whether the PID Bill will
really protect them at all.
Protection from reprisals
An individual who makes or plans to make a public interest disclosure
will be protected from reprisal action under the PID Bill.
The National Whistleblowers Information Centre states from the outset
that taking action to stop a reprisal or detriment or a threat of this is not a
protection, it is remedial action. The whistleblower has already suffered the
action, therefore in the opinion of the National Whistleblowers Information
Centre, they cannot be protected from something that has already happened.
The TJN Australia would like to see better protections for those who
make public interest disclosures in the public sector. They contend that there
needs to be comprehensive protection against victimisation, discrimination, disciplinary
actions, and employment sanctions for legitimate whistleblowing actions.
The Law Council considers that the protection provided by the PID Bill
is so qualified that it is unlikely to provide encouragement to individuals to
make public interest disclosures in many situations.
The Accountability Round Table suggests that the use of the term
‘reprisals’ is not appropriate, as in their opinion it describes situations
where physical force is used to cause physical injury or take property in
retaliation for a perceived wrong.
The CPSU is pleased that the PID Bill explicitly states that reprisal
action is a matter covered by the FWA. They consider this provides an
option for a resolution process that is less formal and more easily accessible
as an alternative or prior to Federal Court Action.
The Accountability Round Table state that they believe that the penalty
for the offence of taking or threatening a reprisal are very low, and should be
raised from six months to two years.
The Law Council contends that the PID Bill provides very little
protection from reprisal for contractors, particularly in respect to the
gaining of repeat business from an agency which can be a significant aspect of a
contractor’s financial viability.
The bill provides that the Federal Court or Federal Circuit Court may
make an order for compensation if an individual suffers loss, damage or injury
as a result of reprisal or reprisal that is threatened.
Professor AJ Brown welcomes the PID Bill’s provision that an aggrieved
person who suffers adverse treatment in the course of their employment may seek
appropriate remedies under the FWA. In addition, he praises the intent
of the PID Bill to protect whistleblowers from adverse consequences and not
just deliberate reprisals.
He recommends that a number of amendments are made to ensure that the
PID Bill is able to achieve both these outcome and meet other criterion of best
practice. Examples of these include:
- the full nature of
damages suffered by employees who fail to be supported and protected properly
are reflected in the compensation provisions;
- the Federal Court
remedies should be supported by exemplary damages and costs provision as per
the FWA; and
- the criminal
penalties available in the PID Bill are weaker than in all other Australian
jurisdictions and could imply that the Commonwealth does not value protecting
whistleblowers as much as the State governments.
The CPSU and the ACTU
raise concern about the disparity of coverage between the PID Bill and the FWA.
Clause 22 of the PID Bill limits the making of a public interest disclosure
as a process or proceeding under a workplace law for employees whereas the general
protections of the FWA are broader and apply to employees and
The ART would like to see best practice in terms of compensation. This
would include the PID Bill providing more detail of the protections available
under the FWA and removal of any caps on compensation.
Blueprint for Free Speech is very clear that an individual who makes a
public interest disclosure under this scheme should not have any compensation
to which they are entitled capped. Additionally, they want the individual
making the disclosure have available to them the cost protections of section
570 of the FWA.
The CPSU and the ACTU
would like to see the PID Bill amended to include the ‘no costs’ provision of
The CPSU would like to see explanatory and educational material provided
to support the legislation that explains the different available remedies and
procedures and clearly emphasises the more accessible FWA remedies where
Many submitters to the inquiry suggested
that a compensation system similar to that of the UK should be further
Protection of identity
The PID Bill makes it an offence to identify an individual who has made
a public interest disclosure. However, clause 44 of the bill provides that a
disclosers name and contact details are to be provided, if known, to the
principal officer of the agency which has been allocated the handling of the
The issue of the protection of the identity of the discloser is a concern
for the Accountability Round Table. They consider that there should be an
exception to providing the name and contact details of the discloser to the
Blueprint for Free Speech share this concern, considering that this
creates a risk of reprisal and is out of step with international best practice.
They would like to see a disclosure’s identity only revealed when consent has
Transparency International Australia considers that this raises risk for
adverse consequences for the discloser and question the need for this
The ABC and the Joint Media
Organisations propose that along with
anonymous disclosures, disclosures should be able to be made ‘pseudonymously’.
They consider this would enable contact but without having to provide
Criminal liability for the use of anonymous source information
The ABC raises the concern that under the current provisions of the PID
Bill, media could be presumed criminally liable for using or disclosing
confidential source information as part of their usual work. They would like to
see an amendment to the PID Bill to prevent this.
The Joint Media Organisations also oppose the presumption of criminal
liability for the use and or disclosure of identifying information in the
course of news gathering.
Public interest disclosures
Part 2 of the PID Bill defines public interest disclosures, and the
types of conduct that may warrant a public interest disclosure.
This section outlines who may make a public interest disclosure and what
it may consist of. It also provides details of the information that should not
be in a public interest disclosure.
Importantly, the bill specifies that conduct is not considered
disclosable if it relates only to government policies that an individual
Public interest disclosures are categorised into internal, external and
emergency disclosures and a legal practitioner disclosure. The conditions for each
This section outlines how a disclosure may be escalated from an internal
to an external or emergency disclosure.
Public interest disclosures
The definition of a public interest disclosure is defined by the
circumstances under which it is made. The Explanatory Memorandum states:
A disclosure will be an internal disclosure if made to an
authorised internal recipient… and the discloser believes on reasonable grounds
that the information concerns one or more instances of disclosable conduct.
External disclosures and emergency disclosures have a more specific set
of requirements, as does a legal practitioner disclosure.
The PID Bill has a range of exceptions for what can be considered a
public interest disclosure. These include:
- whether the
disclosure is contrary to the public interest;
- no more information
is disclosed than is reasonably necessary in the public interest;
- the disclosure is not
contrary to a designated publication restriction;
- it does not consist
of or include intelligence information; and
- none of the conduct
to which the disclosure is concerned relates to an intelligence agency.
The PID Bill outlines a list of factors that need to be considered
before an external disclosure could be considered a public interest disclosure.
The CPSU appreciates that the scheme allows external disclosures where
an internal disclosure has been made but not sufficiently acted upon as well as
in emergency situations. They consider, however, that the PID Bill is not
sufficiently clear about the requirements that need to be fulfilled before an
external disclosure may be made which may lead to uncertainty on the part of a
Additionally the CPSU notes that the prerequisites for an external
disclosure are based on an objective test, whereas they propose a subjective
test. Blueprint for Free Speech also considers a subjective test is more
appropriate for an external disclosure rather than an objective test.
Professor AJ Brown explains:
In general, an external disclosure (other than an emergency
disclosure) will only retain protection if an investigation and/or response to
an internal disclosure is ‘inadequate’. The tests for this are objective, and
based on overly high legal standards (e.g. ‘no reasonable person would consider
that the action … in response to the recommendations is adequate’). These standards
are also inconsistent with the 2010 Government Response (Recommendation 21)
which undertook that protection would still apply to an external disclosure if
a sufficient subjective standard was met, i.e. ‘the discloser has a reasonable
belief that the response was not adequate or appropriate’.
Professor AJ Brown regards the public interest test in clause 26(3) as
being inappropriate and with the Accountability Round Table,
the Joint Media Organisations, the ABC
and the CPSU raises the concern that
the test lists 13 factors mitigating against disclosure, and none mitigating in
favour of disclosure.
The Joint Media Organisations state:
The framing of this list skews the outcome against external
disclosure, because there is not a complementary list of factors that can be
used to determine whether such a disclosure is in the public interest.
Professor AJ Brown goes further to propose the relevant section of the PID
Bill should simply be deleted, since there already is general public interest
test regarding public (external) disclosures at clause 26(2)(f) which states
that no more information is publicly disclosed than is reasonably necessary in
the public interest.
Mr Andrew Wilkie MP states:
The current PID Bill weaves a web of extraordinarily
complicated decisions to negatively frame the circumstances in which public
interest disclosures are protected…The result is the legislation is both
complex and ambiguous.
The Accountability Round Table also consider that the definition does not
address the situation where there is no safe avenue to make an internal
The National Tertiary Education Union states:
The effect is that a whistleblower must first navigate through
a complex framework to determine whether it is safe to make an external
disclosure, else risk potential jail terms or loss of employment.
Mr Andrew Wilkie MP suggests that the provisions in the current PID Bill
place extreme and unrealistic limitations on external disclosures, which in his
opinion, effectively ensure that external disclosures would very rarely be
Blueprint for Free Speech comments that it is not always possible to
make an internal disclosure before an external disclosure, as required by the
provisions of the PID Bill. They suggested the
wording of the Public Interest Disclosure Act 2012 (ACT) as being more
suited to what they consider is the balance the Government is trying to
The CPSU recommends that if the PID Bill passes, further information and
guidance is required for those covered by the legislation regarding when it is
appropriate to make an external disclosure.
Dr Suelette Dreyfus states:
…the PID Bill creates a requirement that the discloser first
make their disclosure internally and only when (on an objective basis) the
investigation into their wrongdoing is not adequately dealt with are they able
to disclose externally. By this point, the discloser might have already faced
reprisal or the wrongdoing to which they intended to expose has become worse or
The Accountability Round Table consider that the list of requirements
for an emergency disclosure is too limited as it is confined to imminent as
well as substantial danger to health and safety of one or more persons. They
believe that the requirement of imminence should be removed.
The Joint Media Organisations recommend expanding the scope of allowable
emergency disclosures beyond that of just health and safety circumstances where
a person may be endangered.
Professor AJ Brown questions the restrictive and onerous nature of the
grounds for an emergency disclosure. He states that the likely result is an
increase in the risk of dangers manifesting into actual harm as it requires
that someone must actually be on the brink of harm before the disclosure is
The Law Council state that the external and emergency categories of
public interest disclosures have significant cumulative requirements and
preconditions. They consider that the
provisions for these categories do not adequately support disclosures in the
public interest as they do not give sufficient clarity about when there will be
Legal practitioner disclosure
Westmead Hospital Whistleblowers raise the important point that often
the whistleblower may not realise that they are actually whistleblowing and may
not seek legal advice or check the legislation to ensure that they disclose to
the correct person about the correct information in an approved manner.
Dr Gabrielle Appleby, Dr Judith Bannister and Ms Anna Olijnyk raise concern about the difficult legal questions
which must be determined before protections of the bill will apply in a
particular circumstance. They consider that the government should make funding
available for people seeking legal advice to determine whether a disclosure
would be protected under the scheme.
They would also like to see the range of who could provide advice
widened to include groups such as unions.
The CPSU believes that an individual contemplating a public interest
disclosure needs to have an understanding of the types of conduct that may be
the subject of a disclosure and is pleased that the PID Bill provides this
function to the Ombudsman.
The Committee received a range of evidence which indicates that the PID
Bill does not provide sufficient clarity on the types of wrongdoing that is
For example, the TJN Australia questions why a public interest
disclosure may be restricted from protection if it may damage relationships
between a State and Territory and the Commonwealth. They do not think it is an
adequate reason to restrict the reporting of a public interest disclosure.
The TJN Australia raises concern about the high threshold for what
constitutes a public disclosure in the PID Bill and suggests that the PID Bill
should be more aligned with UK legislation.
The National Whistleblowers Information Centre describe the bill as
being more like a ‘public sector protection bill’ than a public interest
disclosure bill. They believe that the bill should describe the matters which
must be disclosed in the same detail that it lists grounds for non-disclosure.
The Rule of Law Institute of Australia expresses concern with the terminology
around the categories of disclosable conduct. They consider that this
terminology places the focus on the beliefs of the discloser rather than
whether it appears there is disclosable conduct.
Professor AJ Brown proposes that the PID Bill should be amended to
provide protection for a public servant who makes a disclosure which concerns
disclosable conduct, on an objective test, but who did not actually realise the
nature or significance of what they were disclosing.
One term contained within the definition of disclosable conduct is
The Accountability Round Table raise the concern that the only guidance
provided to define maladministration is a list which focuses on the individual
misconduct of individual officials. They consider that the inclusion of such a
list in the PID Bill may lead to the assumption that behaviour not listed is
not contained in the definition of maladministration.
This view is supported by Professor AJ Brown who considers that the current
definition could be misinterpreted as only applying to active and deliberate
‘conduct’ that can be sourced to individuals, and not necessarily
institutional failures. He proposes that a
definition of maladministration similar to those used in Ombudsman’s offices
would be preferred.
The CPSU notes that some of the terms used to define maladministration
may have a legal definition which may not be apparent to the average person and
may need clarification.
Professor AJ Brown states that the definition of corrupt conduct
contained in the PID Bill is also not clear.
Disagreement with government policies
The PID Bill provides that conduct is not disclosable conduct if it
relates only to the government policy or action to be taken by a Minister, the
Speaker of the House of Representatives or the President of the Senate.
The ABC considers that the section of the PID Bill that excludes
policy-making from disclosable conduct appears overly broad.
They contend that the section does not strike an appropriate balance between
the need to carefully define ‘disclosable conduct’ and the public interest in
promoting transparency in all areas of government.
Blueprint for Free Speech questions whether this section needs to be
included, stating that if it is required that any disclosure be made in the
public interest, that test should prevent any misuse that this section is
attempting to cure. They consider it ‘a superfluous addition to an otherwise functioning
In addition Blueprint for Free Speech caution that this section could be
used to inappropriately classify information as public policy that should
otherwise be exposed.
Dr Suelette Dreyfus is unsure whether there is sufficient distinction
made between the public policy and the implementation of public policy where
there may be some type of wrongdoing. She warns that this lack of distinction may
lead to the corrupt implementation falling within the public policy exclusion.
The PID Bill includes the Australian intelligence community within
provisions relating to internal disclosures and excludes the intelligence
agencies from the provisions relating to public/external disclosures.
The PID Bill also recognises the existing role of the IGIS in oversight and
Under the provisions of the PID Bill the IGIS is able to accept
disclosures relating to intelligence agencies, investigate the matter directly
or with the agreement of the agency, refer it to the agency for investigation.
The IGIS is able to use separate investigative powers available under
the Inspector-General of Intelligence and Security Act 1986. These
include coercive powers for the conduct of inquiries.
Some submitters to the inquiry challenge the status of intelligence
agencies in the PID Bill.
Civil Liberties Australia does not agree with the blanket exclusion of
all aspects of the administration of intelligence agencies and thinks it
inconsistent with the object of creating a pro-disclosure culture as stated by
Professor AJ Brown would like to see full justification for carve-outs
or special procedures with reference to the nature of the information requiring
special treatment rather than blanket exclusions or exemptions.
Mr Andrew Wilkie MP is also concerned with the blanket exemptions for
The Rule of Law Institute of Australia does not consider that the
explanation provided in the Explanatory Memorandum justifies the broad
exception for intelligence agencies. They consider that it is fundamental to
the rule of law that no person or organisation is beyond the law.
A joint submission from the Australian Security Intelligence
Organisation (ASIO) and the Australian Secret Intelligence Service (ASIS)
supports the aims of the proposed legislation.
ASIO and ASIS support the definition of intelligence information in the
PID Bill and consider that the definition provides clarity which would be
important for an individual contemplating making a public interest disclosure.
They clarify that without a clear definition, an individual seeking to make a
public interest disclosure may inadvertently release intelligence information.
The IGIS notes that with no provisions for external disclosures of
intelligence information or conduct relating to an intelligence agency,
additional emphasis is placed on the role of the IGIS to ensure that
disclosures are handled appropriately and investigations by intelligence
agencies are appropriate.
Authorised internal recipients
The bill specifies who is an authorised internal recipient for the
purposes of making a disclosure.
A range of submitters drew attention to the fact that the bill excludes
supervisors and managers. Some of their concerns are listed below.
The Accountability Round Table notes that best practice legislation of
disclosure recognises that often those in a supervisory or management position
are the recipient of a public interest disclosure, as they are the person that
is known and trusted. They consider that the limit to this provision in the PID
Bill could act to discourage public interest disclosure.
Professor AJ Brown states that the PID Bill doesn’t specify whether protection
applies to a disclosure made to supervisors or managers, if these happen not to
be authorised officers and he considers that this uncertainty compromises the PID
Blueprint for Free Speech notes the situation where if an individual
raises concerns with their direct line manager and as a result of this the
person faces reprisal against them, they will not be afforded the protections
of this PID Bill. They propose that the
definition of a disclosure officer should be broadened.
Transparency International Australia notes that the PID Bill is silent
on whether protection applies to disclosures made to a supervisor who is not an
authorised officer. They consider this could act as a disincentive to
disclosure and should be addressed.
Some evidence was also received that the scope of who can be an
authorised internal recipient should be increased. The CPSU suggests that this
should be considered.
Blueprint for Free Speech states that Members of Parliament have
historically been important recipients of public interest disclosures and
supports the inclusion of Members of Parliaments as authorised internal recipients.
This is supported by Dr Suelette Dreyfus
and the Westmead Hospital Whistleblowers.
The TJN Australia would like to see the ability to disclose to a
professional association or union for the purpose of seeking advice or
assistance, in line with the recommendation of the LACA Report.
There was support from some groups for the ability to make a disclosure
outside an individual’s own agency to the Ombudsman.
The CPSU and the ACTU
support the provision in the PID Bill which allows for disclosures to be made
to an external agency, being the Ombudsman, IGIS, or other investigating agency
that has the power to investigate the disclosure.
The Law Council supports the premise that an individual can make a
disclosure to the Ombudsman. They do not think that there should be a further
requirement that there be reasonable grounds for believing that the matter was
appropriate for disclosure to the Ombudsman.
Designated publication restriction
In the PID Bill, the definition of a public interest disclosure is
limited by reference to the designated publication restrictions. These include,
for example, suppression and non-publication orders made by a court, orders
under the Witness Protection Act 1994 and non-publication directions
issued by examiners under the Australian Crime Commission Act 2002.
Many of the submissions question why these designated publication
restrictions have been included in the PID Bill.
The ABC clarifies that most of the listed designated publication
restrictions in clause 40 restrict publication to the world and do not restrict
or prohibit disclosure. They question the premise of presenting publication
restrictions as if they restricted disclosure, suggesting that it could cause confusion
and uncertainty and discourage people from making a public interest disclosure.
The Accountability Round Table felt that they would act to discourage
people from making a disclosure as they would need to know if there was such a
restriction in place in relation to the information that they want to disclose.
The CPSU admits that there may be a legitimate need to protect certain types
of confidential information from publication but question why internal
disclosures, which are not made public, need to be subject to this restriction.
In relation to these publication restrictions Professor AJ Brown states:
They create a dangerous precedent, will be difficult or
impossible to implement, and compromise the PID Bill.
The Chief Justice of the Family Court of Australia expresses a view that
the PID Bill should be expressed as being subject to section 121 of the Family
Law Act 1975. The Chief Justice acknowledges that the designated
publication restrictions seek to accommodate this section but is concerned that
inconsistencies may arise.
The bill provides an outline of the process of investigating public
An individual must make a public interest disclosure to the authorised
officer of their agency. There are designated roles for the authorised officer
and principal officer of that agency. These include allocating the disclosure,
deciding not to investigate further or allocating it to an investigative
If a disclosure has been referred, the principal officer of the
investigative agency may decide to investigate the disclosure under that
separate investigative power, such as the Ombudsman Act or the IGIS Act.
The principal officer must notify the discloser of the decision to
investigate or not. If an investigation is conducted, it must be completed
within 90 days of the allocation.
The investigation is considered complete when the principal officer has
prepared the report of the investigation. A copy of this report must be
provided to the discloser.
Obligation to investigate
The PID Bill outlines that there are a number of circumstances in which an
authorised officer may exercise discretion not to investigate a public interest
Some concern was raised that the some of the grounds to refuse to
investigate may be drafted too broadly.
The Accountability Round Table describe the criteria in clause 48(1)(d) of
the PID Bill as being inappropriate in circumstances where the investigation
has not commenced. They consider that it
may be difficult to be conclusive in every situation that a disclosure is
frivolous, vexatious, misconceived or lacking in substance without some degree
The Accountability Round Table is concerned that an authorised
allocation officer may require proof that a disclosure satisfies the
requirements for an internal disclosure, they consider there is the potential
that it could be used to deny an allocation of a disclosure for investigation.
Transparency International Australia considers that the language used suggests
a very wide discretion not to investigate and consider these provisions do not
support a culture of disclosure.
The CPSU suggests that there is little recourse for a whistleblower if
they consider that the investigation was inadequate or the discretion not to
investigate a disclosure was exercised improperly.
Under the provisions of the PID Bill, Blueprint for Free Speech
considers that it is confusing for an individual making a public interest
disclosure to keep track of where an investigation is up to as the only
requirement for the investigating authority is a final report is provided to
the discloser. They would also like to
see more progress reporting of the investigations.
The Accountability Round Table raises the further concern that in the
situation where the authorised disclosure officer refuses to receive the
disclosure or takes no or inadequate action, it would not be appropriate for
the individual to make an external disclosure.
This is echoed by the Joint Media Organisations.
Professor AJ Brown is of the view that some of the aspects contained in
the discretion not to investigate have the potential to defeat the purpose of
the PID Bill rather than providing intended safeguards.
The Rule of Law Institute of Australia considers there is potential for
the discretion not to investigate to be inappropriately used especially when
there may be competing managerial or budgetary pressures.
The National Whistleblowers Information Centre considers all the
reporting and investigation arrangements proposed by the bill to be
unsatisfactory and would like to see them carried out by an independent
organisation and the protection, support and restitution of whistleblowers
carried out by Comcare.
Part 4 of the PID Bill sets out the additional obligations and functions
of the principal officer and authorised officer in the facilitation and
management of public interest disclosures. It also defines the obligations of
the public officials to assist those dealing with public interest disclosures.
This section specifies how the Ombudsman and the IGIS are required to
assist each other, as well as principal officers, authorised officers and
public officials in relation to the operation of the scheme. This includes
conducting educational and awareness programs.
The definitions of public officials, agency, prescribed authority and
principal officer are also contained in this part of the bill. The bill allows
for an authorised officer to take someone as a public official, if the
authorised official believes that the individual has information that could be
taken as a public interest disclosure.
The bill also creates offences relating to the inappropriate use or
disclosure of information obtained through processes connected with the Act.
Additional obligations and functions
Professor AJ Brown states that under best practice public interest
legislation obligations on agencies should be direct, proactive and
preventative rather than just assumed and reactive.
…disclosures be managed in a way that will best prevent
adverse consequences for disclosers, rather than just offering to compensate
them for damage after the event. It is a strength of the PID Bill that this
principle is reflected in s.59(1)(a), following the ACT precedent.
However, this principle also needs to be carried through in practice in other
parts of the PID Bill.
Professor AJ Brown recommends that the PID Bill is scrutinised for
inconsistent requirements and consideration of more consistent observance of
the basic principle of reprisal/risk prevention and management.
Additional functions of the Ombudsman and IGIS
The role for the Commonwealth Ombudsman to implement, oversight and play
a significant role in the operation of the PID scheme had its origins in the
LACA Report which were subsequently accepted by the government in their 2010 response.
Evidence from the Whistling While They Work project
suggests that a strong central agency role is required.
There was general support for the role of the Ombudsman and IGIS in the
PID Bill, with some submitters seeking extra clarification around the extent of
the Ombudsman’s supervisory role.
The Accountability Round Table contends that the PID Bill places the
Ombudsman and IGIS in oversight positions but does not provide detail of their
oversight. The Accountability Round Table are concerned therefore that ultimate
responsibility of the public interest disclosure scheme rests with no
individual or agency.
Transparency International Australia contends that the provisions in the
PID Bill enable the oversight agencies to assist agencies but do not require
them to participate in an active oversight arrangement.
The CPSU would like to see a stronger role for the Ombudsman and IGIS
with more active oversight of procedures and investigations as they happen,
with the ability to make recommendations. It raises a concern
that the PID Bill does not establish any oversight arrangements for the
Ombudsman and IGIS.
The CPSU would also like to see a role for the Ombudsman and IGIS in
reviewing the decisions regarding public interest disclosures made by agencies.
Professor AJ Brown considers that there is insufficient clarity in the PID
Bill around how the oversight agencies will work in practice. He theorises that
there is a risk that issues will not be recognised or fail to be addressed
through lack of jurisdiction.
Professor AJ Brown recommends that the PID Bill contains explicit powers
for the Ombudsman and IGIS to undertake this new role.
The Ombudsman states that the central agency role afforded to the
Ombudsman and IGIS in the PID Bill strikes a good balance between their
oversight of the scheme and their day to day involvement in the operation of
the scheme. The Ombudsman considers
that its role under this PID Bill will be a key enabler to ensure that the
proposed legislation meets its objectives.
The Ombudsman comments that it is unlikely that the office will need to
see every PID in the first instance or make all substantive decisions to be
able to provide effective oversight.
The Ombudsman comments:
An effective PID scheme also needs to place responsibility on
the agency with the problem to ensure that the matter is properly investigated
and, to the extent possible, resolved. By placing responsibility on agencies,
it promotes early disclosure and proactive management of issues by agencies, it
also creates an environment in which an acceptance of whistleblowing is more likely
to take root.
The CPSU supports the role of the Ombudsman in providing education and
awareness programs for agencies about the types of conduct that may be the
subject of a disclosure.
The Whistleblowers Action Group Qld Inc. is critical of the role of the
Ombudsman in the proposed legislation.
The National Whistleblowers Information Centre strongly contends that
the Ombudsman’s office is not an appropriate agency to deal with the reporting
or the investigation of any whistleblowing matter.
For years the Commonwealth Ombudsman’s office has
consistently failed to objectively or professionally deal with whistleblowing
Officials and agencies
Under the proposed legislation Members of Parliament and their staff or
the judiciary are not considered to be public officials.
The LACA report recommended that staff of Members of Parliament should be
included in whistleblower protection, although the 2010
Government response to the LACA report stated that Members of Parliament and MOPS
employees would not be covered.
There was concern expressed by several participants
in the inquiry that certain public officials were not included in the proposed
disclosure system. In particular, the fact that Members of Parliament and their
staff were not included was seen as a real issue to public trust. As the Accountability
Round Table states:
We submit that in the absence of any persuasive argument for
excluding misconduct by such persons, such exclusion is contrary to the ‘public
office –public trust’ proposition that is central to the legislation, and
in this respect undermines the integrity of the PID Bill.
The Accountability Round Table also was concerned that staff of Members
of Parliament would be discouraged from revealing misconduct that comes to
their attention as part of their work with executive officers of the public
Mr Andrew Wilkie MP disagrees with the exclusion of Members of
Parliament and their staff from the PID Bill and sees this as a serious flaw.
Blueprint for Free Speech consider that to not include actions of
Ministers, the Speaker of the House and the President of the Senate offends the
Australian notion of fairness.
The National Whistleblowers Information Centre consider that exempting
people and agencies on the basis of who they are or what they are seriously
undermines the credibility of this legislation. They consider to be excluded
from disclosure, there must be an objective and substantive reason that serves
the greater public interest.
The CPSU queries whether the protection of the proposed legislation
would extend to State employees when working on a Commonwealth/State joint
The National Tertiary Education Union considers that the definition of
public official be amended to exclude university employees. The NTEU considers
that a one size fits all approach to public interest disclosure would cause
unnecessary complications in the university sector.
The PID Bill states that conduct is not disclosable conduct if it is
conduct that an intelligence agency or a public official who belongs to an
intelligence agency engages in for the purposes of proper performance of its
functions or the proper exercise of its powers.
Additionally, the PID Bill provides that to be able to make a protected
external, emergency or legal practitioner disclosure, information must not
consist of or include intelligence information.
Many submitters to the inquiry challenge the status of intelligence
information in the PID Bill.
Mr Howard Whitton considers that the PID Bill is overly focussed on
secrecy concerns, mainly in relation to intelligence matters and does not give
enough consideration to encouraging the principled disclosure of wrongdoing by
Australian public officials involved in security and intelligence functions at
Blueprint for Free Speech acknowledges that there is a need for
confidentiality in intelligence information as well as the importance of
secrecy in certain situations. They consider, however, that there are certain
circumstances where the public interest is better served by exposing certain
wrongdoing rather than maintaining secrecy.
The Accountability Round Table notes that if a disclosure contains
intelligence information the only option is an internal disclosure and there is
no recourse for the discloser if the investigation or response is inadequate.
Any external disclosure would not be a protected disclosure.
Transparency International Australia considers the definition of
‘intelligence information’ in clause 41 disturbingly broad. They contend that
Information… is not restricted to information whose
disclosure carries risk of harm to actual security, intelligence or law
enforcement interests but extends beyond ‘intelligence related information’ to any
information involving an intelligence agency
The ABC considers that external disclosures should not be precluded for
intelligence information where the disclosure relates to unlawful or other
serious misconduct. They state that
whistleblowers have no options if an internal disclosure is not properly dealt
with and their complaints deal with:
…extraordinary rendition, unlawful interception of citizens’
phone calls, the use of torture in interrogations of detainees, or humiliating
and degrading treatment of prisoners.
The bill gives the Ombudsman the authority to determine standards relating
to procedures for agencies when dealing with internal disclosures,
investigations, reports of investigations and the management of information and
records relating to public interest disclosures.
The bill provides that the Ombudsman must provide an annual report at
the end of each financial year, for the Minister to present to Parliament. The
annual report must include the number of public interest disclosures made in
that financial year, as well as a range of information about the scheme.
The Ombudsman and IGIS would be able to
monitor compliance with their standards using existing powers under their
Professor AJ Brown would like to see the key requirements included in
the proposed legislation rather than being included in the standards and
procedures developed by the Ombudsman; he considers that key requirements must
be in the Act to be effective.
The CPSU supports the role given to the Ombudsman to develop standards for
agency procedures for receiving disclosures, conducting investigations and
preparing reports of investigations. They consider this will help ensure a
consistent standard of investigations.
The Office of the Commonwealth Ombudsman highlights that as the PID
scheme is likely to place a significant burden on agencies to establish
procedures and appoint and train personnel, as well as the Ombudsman’s office
determining standards that there needs to be sufficient time between the
passing of the PID Bill and commencement.
The Ombudsman also raises the concern that the PID scheme will
potentially have resource implications on the office of the Commonwealth
Ombudsman and suggests a review of resourcing a period of time after the scheme
has been in operation.
Professor AJ Brown supports the proper resourcing of the oversight
agency to undertake their role, including being able to handle cases directly
The Clerk of the Senate does not agree with the inclusion of clause 81
in the PID Bill. The clause states ‘law relating to parliamentary privilege
(is) not affected’ and the Clerk considers it unnecessary and a precedent that is
‘not without risk’.
The Whistleblowers Action Group Qld Inc. criticises the PID Bill for not
including provision for a Whistleblower Protection Agency.
Professor AJ Brown would like to see the government enact comprehensive
whistleblower protection for the business and non-government sectors.
The National Whistleblowers Information Centre contends that the bill
does not acknowledge the existence of covert detriments. They consider covert
reprisals can often be made to look like the whistleblower is receiving a
benefit rather than a reprisal. An example of a covert
Removing any supervision of staff to ‘help the whistleblower
cope with the disclosure issue’ or ‘to help the whistleblower get through this
New approach to whistleblowing
Some submissions to the inquiry provided
evidence that a new approach to whistleblowing may be required or should be
considered. This may take the form of qui tam or a False Claims Act
similar to that of the United States.
Dr Kim Sawyer provided the outline of an evidence-based approach which
has several requirements which are designed to support whistleblowers and
incentivise integrity. They include:
- Transferring the onus
of proof away from the whistleblower;
- Integrating anti-corruption
and whistleblowing, and
legislation which is a deterrent against corruption.
Dr Sawyer states that the only legislation that satisfies these is the
US False Claims Act but warns that Australia would need its own False Claims
legislation in conjunction with appropriate provisions for an integrity agency.
Westmead Hospital Whistleblowers support the idea of a system similar to
qui tam legislation but suggest that instead of the whistleblowers directly
receiving a proportion of the funds as happens under the US False Claims Act
that this proportion is shared between the whistleblower and other groups
designed to assist whistleblowers directly.
Blueprint for Free Speech suggest that similar concepts to the US False
Claims Act could be used for the creation of a self-sustaining fund to support
future whistleblower protection litigation.
Mr Howard Whitton does not support a US style payment of a reward based
on the value of the fraud. He states that the disclosure of wrongdoing is part
of a public official’s duty and should not be additionally rewarded.