Public Sector Whistleblower Protections (AU0029)

Commitment 6. Whistleblower Protection.

Attorney-General’s Department; Office of the Commonwealth Ombudsman.

For a complete description of the commitment, see commitment 6 in Australia’s Open Government Partnership National Action Plan 2023-2025.

Context and objectives:

Both OGF civil society members and the government proposed improving whistleblower protection. This commitment adopts existing government work to reform the Public Interest Disclosure Act 2013 (PID Act), which established the Commonwealth public sector whistleblowing scheme and is administered by the Attorney-General’s Department (AGD) and overseen by the Office of the Commonwealth Ombudsman (Ombudsman). The Inspector-General of Intelligence and Security (IGIS) oversees the six intelligence agencies subject to the Act. Other federal frameworks provide whistleblower protections for non-government sectors. [25] An independent statutory review of the PID Act was carried out in 2016 by Philip Moss AM, [26] followed by parliamentary, government, and academic reports from 2017 to 2023. [27] The Moss Review stated that few individuals who had made PIDs reported that they felt supported. Some felt that their disclosure had not been adequately investigated or that their agency had not adequately addressed the conduct reported. Many disclosers reported experiencing reprisal as a result of bringing forward their concerns. The review concluded that, in its two-and-a-half years of operation, the PID Act had brought wrongdoing to light and helped agencies understand wrongdoing and respond appropriately, but only to a limited extent. It made 33 reform recommendations.

By 2023, Australia’s whistleblower protection laws were still falling behind, according to research published by Griffith University, the Human Rights Law Centre, and Transparency International Australia. [28] The Human Rights Law Centre reported in August 2023 that it had examined 78 separate cases in which whistleblowers sought protection under federal and state whistleblowing regimes and that none of these cases succeeded. [29] It concluded that Australian whistleblowing laws are not working as intended and set up its own whistleblower legal support service. [30]

The commitment’s first milestone, Stage 1 of the government’s PID reform program, was completed in 2023, prior to this action plan’s formal implementation period. It implemented 21 of the Moss Review’s recommendations, including providing the Ombudsman and the IGIS with new powers to oversee the operation of the PID scheme, supporting disclosures of corrupt conduct to the new National Anti-Corruption Commission (NACC), which commenced its activities in July 2023, [31] and a new requirement for the Commonwealth Ombudsman to report on the operation of the PID Act every 6 months. [32] The second milestone, public consultation on Stage 2, took place from 16 November to 22 December 2023 as the action plan was being formally approved. [33]

Potential for results: Modest

Stage 2’s reforms include consideration of outstanding recommendations from the Moss Review, recent parliamentary reports, external reviews and reports from stakeholders. The November 2023 public consultation document covered issues such as making a disclosure within government, pathways to making disclosures outside government, clarity of the PID Act, oversight and integrity agencies, considering a potential Whistleblower Protection Authority or Commissioner, and protections and remedies under the PID Act. [34] The commitment’s milestones include consulting with the public and developing and implementing legislative reforms and non-legislative measures such as training and education.

Some OGF civil society members noted that whistleblower protection is a priority for Australia’s open government stakeholders. [35] This reform area was also highlighted as a priority by the 10 respondents to the action plan’s online Phase 2 survey; it ranked 2^nd overall out of eight commitments. Several of the online Phase 1 survey’s 32 public respondents also sought a whistleblower protection program, improved whistleblower legislation, and dropping current prosecutions of whistleblowers. [36]

Should the commitment’s reforms cover key areas identified by civil society, they could address sizeable gaps in whistleblower protection. Griffith University, the Human Rights Law Centre, and Transparency International Australia’s research proposed 12 key areas of reform spanning effective administration and enforcement of the laws, ensuring the laws contain consistent, best practice protections, and making sure thresholds and limitations in the laws are workable. It drew these areas of reform from the recommendations of all public disclosure reviews since 2015. The proposals seek consistency across all federal whistleblowing laws to address the current “complex web of gaps and inconsistencies” and align Australia with international best practices. [37] In addition, some OGF civil society members proposed broadening the PID Act beyond the scope of federal government contractors and to include provision that a percentage of any financial penalty resulting from a public interest disclosure be paid to the whistleblower. [38]

However, while this is a promising area for reform, the commitment has modest potential for results given lack of detail on the legislation to be introduced beyond the issues set out in the November 2023 public consultation document. Transparency International Australia noted that, as to date, the government has not specified the particular options for reform that will be pursued under Stage 2, it is expected to only modestly improve whistleblower protection, compared to Stage 1. [39] Results will depend on the ambition and nature of the final proposals and whether they secure parliamentary approval. The challenge will be to gain cross-party political support for stronger legislative protections for whistleblowers, impartial reporting of whistleblowing, and how protection for any national security situations is addressed.

Opportunities, challenges, and recommendations during implementation

This commitment provides an opportunity to fully address public demand for more comprehensive support of public sector whistleblowers and the establishment of an independent authority, [40] and looks ahead to future work covering the private sector. The 2023 AGD consultation document’s questions regarding both legislative reform and non-legislative measures such as training, education, and other support acknowledge the complexity of this policy area and augur well for a successful outcome. They also anticipate future government work on the private sector whistleblowing scheme, as proposed by OGF civil society members. [41] To support this commitment’s implementation, stakeholders can make use of whistleblower advice released by the OGP in 2020. [42] The IRM also recommends: