The federal government has outlined a detailed plan to reform Australia’s whistleblowing laws and remove secrecy offences to drive “trust and accountability in the public sector”, as new research shows the current scheme is failing to protect those who speak out about wrongdoing.
The assistant attorney general, Amanda Stoker, told the National Whistleblowing Symposium on Thursday that the government would move to reform the Public Interest Disclosure Act, which is designed to shield public sector whistleblowers from reprisal.
The government was warned of the failings of Australia’s whistleblower laws more than four years ago, in a review by Philip Moss, but has not yet acted on his recommendations.
The former attorney general Christian Porter signalled a willingness to reform the act in 2019, after the police raids on the ABC and the search of Herald-Sun political editor Annika Smethurst’s home.
But Stoker on Thursday laid out for the first time a detailed plan for reform. She described the current whistleblower laws as “inaccessible and overly complex” with “structural and technical flaws, which make its provisions difficult to navigate and interpret”.
Stoker signalled the government would seek to make it easier for whistleblowers to access legal advice and compel the heads of government agencies to take greater steps to support them during the disclosure process.
Witnesses to alleged wrongdoing would also be better protected, she said, and all investigation reports produced as a result of a disclosure would be required to go to the Commonwealth Ombudsman or the intelligence watchdog, the Inspector-General of Intelligence and Security.
Those agencies would be given greater powers to perform oversight roles to ensure disclosures were properly handled, including the ability to “make inquiries and recommendations about an investigation report”.
“Further consideration is also being given to prescribing additional agencies as investigative agencies,” Stoker said. “This will give disclosers additional avenues through which to make a disclosure and will leverage the investigative agencies’ expertise and specialist powers under their own legislation to address wrongdoing.”
But Stoker also signalled the government would tighten the kinds of conduct that could prompt a disclosure. Disclosures made in the pursuit of workplace grievances, she said, would not attract protection.
“This will free up agencies’ valuable resources to focus on allegations of more serious wrongdoing,” she said.
The government, she said, wanted to remove the general secrecy offence, which broadly criminalises the revelation of anything secret, saying it was “not fit for purpose and is limiting the ability of agencies to respond to alleged wrongdoing”.
The intention of the reforms was to bring the public sector whistleblowing laws in line with the recently reformed corporate whistleblowing scheme, which had been widely praised by experts.
That would involve expanding the definition of “detriment” to protect against a broader range of reprisals against whistleblowers, and reversing the burden of proof in civil claims to make it easier for whistleblowers to prove their claim for protection.
It would also clarify that protections would be afforded to former public officials, not just current ones, and would shield those who had the potential to make a disclosure, regardless of whether or not they actually go ahead with it. That would protect people who become aware of information that could enable them to make a disclosure.
Stoker also reaffirmed greater protections for journalists, including a review of secrecy provisions to give greater protection to public interest journalism, and introducing safeguards against warrants being issued for journalists over unlawful disclosures.
The government would not commit to the reforms prior to the election. But Stoker said work on the reforms was “well advanced”.
The reform pledge comes as new research out of Griffith University showed the current whistleblowing regime was failing to protect individuals, even in high-priority cases.
As a result of making a disclosure, about 77% of whistleblowers reported experiencing collateral damage, including stress, isolation or ostracism, and 43.7% reported direct damage, including harassment or intimidation, discipline, or the denial of promotions.
Prof AJ Brown, a leading expert in whistleblower protections, welcomed Stoker’s commitments to reform, telling the symposium he was heartened to hear the detailed plan for the first time.
He told the symposium that less than half of all whistleblowers who were high priority for protection and experienced repercussions received any remedy.
Compensation, the data showed, was extremely rare.
“There’s not much evidence that compensation is flowing in cases where it’s really needed,” Brown said.
He said the research showed the urgent need for reforms to the whistleblower regime.
“I’m really glad to say that what senator Stoker has outlined is really starting to address some of those issues, many of those issues, indeed,” he said. “And the question now is how quickly we can get on to it.”
