February 15, 2023
I’m pleased to stand today to support the Public Interest Disclosure Amendment (Review) Bill 2022, which means the Commonwealth public sector whistleblower protection regime—largely set out in the Public Interest Disclosure Act. This bill implements 21 of the 33 recommendations of the 2016 Moss review, and recommendations from two other inquiries, into the adequacy of whistleblower laws.
As an Independent member of parliament, I was sent to this place to fight for integrity in government. This battle is never over, but sometimes we take important steps forward—however modest—and today is one of those days. Last month, we had some positive news for integrity: Australia has stopped its slide down the annual Corruption Perceptions Index after decades of decline. In fact, we’ve turned it around. From a record low in 2021, last year we reported a two-point increase which lifted our global ranking from 18 to 13. The reason was the enactment of the National Anti-Corruption Commission, which so many people in this place, and outside it, campaigned on for over a decade.
I’ve been concerned about our declining position in the corruption league table since I came to this place. That’s because integrity isn’t an esoteric concept or a concern of the privileged. From Bright to Byawatha, people stop me in the street and tell me, ‘Don’t give up on fighting corruption in politics.’ Whistleblowers play an integral role in fighting corruption and maintaining integrity in our government. By protecting people when they report suspected wrongdoing, we encourage transparency and proper conduct, and we discourage fraud, corruption and waste of public funds.
In exchange, whistleblowers should have legal protections against reprisal actions and immunity from liability. That’s the promise that we give them in return for the risks they take. Whistleblowers should not suffer because they tell the truth, but that’s what we see, time and time again. We have a system of inadequate protections which leave people exposed, victimised and prosecuted, when they should be celebrated for their bravery. It’s no secret that our whistleblower protection laws are unfit for purpose. As we just heard from the member for Goldstein, Justice Griffiths of the Federal Court, in 2019, described the Public Interest Disclosure Act—and it’s worth repeating this—as ‘technical, obtuse and intractable’. Once, Australia’s whistleblower protection laws set the international standard. They’ve since become out of date and inconsistent. The reforms in this bill are long overdue.
These reforms are especially urgent to lay the groundwork for the new National Anti-Corruption Commission and to support disclosures of corrupt conduct to the National Anti-Corruption Commission. In order for the commission to do its job, we need to guarantee that those who report corrupt conduct have the strongest possible protections in exchange. It’s public servants, officials and employees who know what’s really going on. They’re the single most important way in which wrongdoing will be brought to light, and that’s why it is critical that these reforms are enforced before the NACC opens its doors in mid-2023.
These reforms are the first of two sets to the Public Interest Disclosure Act, and the Attorney-General has promised that, following the passage of this bill, the government will commence a second stage of further and broader reforms to the act. In particular, I welcome the Attorney-General’s commitment to an exposure draft process on the next stage of reforms and a discussion paper on the proposal for a whistleblower protection authority or commissioner—this is really important. It was a key pillar of my 2020 proposal for an integrity commission, and consideration of this proposal was supported by the advisory report from the joint select committee examining the NACC Bill.
There is much to be commended in this bill. I support the provisions that enable the NACC to fulfil its function to investigate serious or systemic corruption, such as providing officers with greater discretion to refer appropriate matters to the NACC for investigation. This provides greater flexibility to agencies in how they handle disclosures and makes sure the matter is dealt with by the most appropriate agency. I also support the expansion of the definition of ‘detriment’ so that a whistleblower is now protected from the full spectrum of potential reprisals. Reprisal actions such as reputational or financial damage, any form of discrimination and harassment or psychological harm will now be covered, bringing this into line with the protections of the Corporations Act. I welcome the positive duty on principal officers of Commonwealth agencies to support public disclosures and witnesses as well as supporting whistleblowers on their staff. This is important to create a pro-integrity and pro-disclosure culture across the government.
I would, however, urge the government to consider the concerns raised by the Australian Human Rights Commission and the Victorian Independent Broad-based Anti-corruption Commission about the impact of excluding MOP(S) Act staff from making protected disclosures. I urge them to consider concerns about removing disclosures relating to personal work-related disputes and conduct from the scope of disclosable conduct. Stakeholders have raised concerns that this will result in blanket exclusions from protection, if it includes a workplace element. According to research, about half of whistleblowing cases involve some kind of work-related conduct. The drafting of this section may result in it being misinterpreted, to the detriment of whistleblowers, and this should be considered.
Yet there is still much to do to ensure whistleblower protection laws can be effectively administered and offer best-practice protections. The priority among these is the establishment of a whistleblower protection commissioner. Whistleblower protection laws are complex. Smart and well-intentioned people who want to report misconduct may find the laws hard to navigate—indeed, we know they do. When facing uncertainty, they may decide the safest path is to stay quiet, and that’s not what we want. In the cases of David McBride and Richard Boyle, we’ve seen the worst result: two whistleblowers, who believed they were doing the right thing and following the rules, only to find themselves prosecuted. We can’t have that.
An independent whistleblower protection commissioner would support public and private sector whistleblowers who are navigating the legal system. It would ensure that whistleblowing laws work in practice. It would be a one-stop shop for practical advice, assistance and guidance for whistleblowers. It would conduct independent investigations into detrimental actions and enforce legal protections when internal procedures of other agencies fail, and it would assist other agencies to uphold their own internal processes, championing best practice, because that’s what we want. A whistleblower protection commissioner would bring profile and authority to this important function. They put it on the agenda and shift the conversation.
Another important area for reform is immunities from prosecution. There are currently significant legal gaps and uncertainties about what immunity is available to whistleblowers from civil, criminal and administrative liability. Legal reform of these immunities is necessary to ensure legal actions, whether they be civil or criminal, do not drag out for years. We also need to streamline protection for non-government whistleblowers by creating a single law which covers them all. Currently, Australian private and not-for-profit sector organisations are subject to incomplete and inconsistent whistleblower protections laws. For example, unions, aged-care providers and National Disability Insurance Scheme whistleblowers are all subject to different laws, and some of these are out of date. A single consolidated law for all private and not-for-profit sector whistleblowers is necessary, with consistency between public and private sectors where possible.
The job of improving whistleblower protections is far from done. I would encourage the Attorney-General, his hardworking staff and department to have regard to the landmark report Protecting Australia’s whistleblowers: the federal roadmap, from Griffith University, the Human Rights Law Centre and Transparency International Australia, as it is a checklist for the next tranche of reforms.
The implementation of these reforms, especially in how it relates to the work of the NACC, is a key concern of mine. On Monday I was appointed to the Parliamentary Joint Committee on the National Anti-Corruption Commission, and today I was honoured to be elected as deputy chair of this committee. The parliamentary joint committee will consider proposed recommendations for the appointment of the commissioner, deputy commissioner and inspector. It will ensure that these positions are accountable to parliament by monitoring and reviewing their performance, examining investigation and annual reports, examining trends and changes in corruption, and reporting to parliament. It will inquire into any question in connection with the committee’s functions referred by the parliament and report back. It will review the NACC’s budget and finances and report to both houses of parliament on the sufficiency of the NACC’s resourcing to effectively perform its functions.
This parliamentary committee is an important mechanism for the oversight of the NACC. It needs to be strong and independent. As a member of this committee, I will use my considerable position to make sure that the NACC delivers on the promise it made—we made—to the Australian people: that it is robust and adequately funded; that appointments are not politicised; that, as much as appropriate, the committee and the NACC are accountable, transparent and open to scrutiny; that these reforms and the ones to follow work in practice; and that whistleblowers are getting the protection they deserve, which allows them to come forward and expose corruption.
As a parliamentarian I can’t rest, and I will not rest, until I know that whistleblowers have the strongest possible protections. We owe it to them, to the taxpayers and to the public good to make the path clear. Let’s close the loopholes, let’s fix the system and let’s give these brave whistleblowers the protections they are entitled to.