Attorney-general open to reforming 'obtuse' federal whistleblower protection law

By Stephen Easton

June 24, 2019

Attorney-general Christian Porter is reportedly open to reforming federal whistleblower-protection legislation to sharpen up the blurry line between legitimate and unauthorised disclosures of information from the Commonwealth government.

The federal Public Interest Disclosure Act 2013 is widely considered to be better than nothing, but not a whole lot better. It is supposed to encourage genuine whistleblowers to come forward through internal channels, by promising that if nothing is done about their complaints within several months, they can take the information public with legal protection against criminal charges, disciplinary repercussions and other reprisals.

But in practice it is very difficult for a whistleblower to understand the precise sequence of actions they should take to qualify, and there is very little advice or support available to help them meet the criteria; they can make an internal disclosure easily enough, but what happens after that can become mired in major differences of opinion. There’s a lot of room for government lawyers to argue a subsequent disclosure to the media did not qualify for protection.

It’s not clear exactly what changes Porter is considering at this stage, but The Australian brought word on Friday that he intends to “overhaul” the Public Interest Disclosure Act to make it “easier to use in order to provide greater protection for public ­servants and those who are responsible for deciding whether they should be protected while their concerns are addressed”.

There were no direct quotes from Porter on his intentions for the PID Act but he reportedly “endorsed” the view of Federal Court judge John Griffiths, who said the legislation was “technical, obtuse and impracticable” after ruling a Parliament House security guard was not entitled to its protection. The judge noted it was described as containing “complex interlocking substantive provisions and definitions” in a “somewhat understated submission” to the court from the Department of Parliamentary Services.

The officer first made his disclosure internally as required and later thought he was legally entitled to make his external disclosure, which would require him to see 90 days go by without an investigation being completed. But it turned out the Department of Parliamentary Services had a very different view of when the 90 days would begin, after he attempted to make an external disclosure to a parliamentarian in an envelope containing 80 pages of complaints that was intercepted.

The department also argued the officer’s attempted external disclosure concerned “entirely different events, issues and periods of time” to the first, made internally several months earlier. The judge ruled that since it contained a lot of new material that was not disclosed internally first, it did not meet the criteria for him to be protected from disciplinary action in response, regardless of the investigation timeframe.

The events described in Justice Griffiths’ judgement also highlight the complexity of these determinations. Once a designated official receives an internal report from a whistleblower they have 14 days to formally allocate it to the agency itself for investigation, or another agency like the ombudsman’s office, unless they decide it could not reasonably be considered a report of “disclosable conduct” as defined by the act. Then the clock starts, although extensions can also be granted and were in this case.

Griffiths denied the application for an injunction against sanctions imposed by DPS in response to the disclosure, as he was not satisfied there was a “prima facie case or serious question to be tried” based on the “very weak” evidence presented by the Parliamentary security officer.

But in his judgement, he also described the law as “largely impenetrable, not only for a lawyer, but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy” — and he is far from the first legal expert to state such a view.

According to The Australian, the attorney-general has now decided to consider changes recommended by the somewhat critical review of the PID Act by Philip Moss, published in 2016, after the much-maligned Australian Federal Police searches of the ABC and the home of Herald-Sun political editor Annika Smethurst caused angst even in the government’s friendliest sections of the media.

Moss made a range of recommendations to sharpen up the act, including regular reviews of the legislation every three to five years and measures to strengthen oversight of how complaints are investigated. This would include anointing certain offices as official PID Act investigative agencies — the Australian Public Service Commissioner, the Merit Protection Commissioner, the Integrity Commissioner, the Parliamentary Services Commissioner, the Parliamentary Services Merit Protection Commissioner and the Inspector-General of Taxation.

He called for a slightly bigger role for the Commonwealth Ombudsman and the Inspector General of Intelligence and Security, in both providing guidance to potential whistleblowers and overseeing internal investigations by agencies, and said the scheme should have a narrower focus only on the most serious complaints.

“The experience of whistleblowers under the PID Act is not a happy one,” the 2016 report stated.

“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.”

AJ Brown, a Griffith University professor focused on public sector integrity and one of the nation’s leading experts on whistleblower programs and anti-corruption systems, said the Moss recommendations would be “a really valuable clean-up of the act” if implemented.

Transparency International Australia chief executive Serena Lillywhite was quick to applaud Porter’s willingness to consider reform, and called for an independent whistleblower protection authority to be established in the APS.

“A healthy democracy depends on the ability to hold decision-makers to account, and for that we need transparency,” she said. “Whistleblowers play a crucial role in exposing wrong-doing – we should value their contributions and support them to speak out.

“Mr Porter’s interest in strengthening a pro-disclosure culture goes to the heart of the reforms we need. With greater transparency and a commitment to accountability and integrity, we prevent corruption and misconduct before it occurs.”

As things currently stand, very few Australian Public Servants would feel comfortable coming forward to report serious misconduct or corruption, even internally. The 2013 legislation has not been very encouraging in light of the experiences of those who have tried to shelter under its protections in recent years, only to face extremely heavy criminal penalties, and the AFP’s recent flexing of its considerable investigative powers.

“The recent Australian Federal Police raids on journalists’ homes and offices risk having a chilling effect on public servants who want to blow the whistle on wrong-doing,” said Lillywhite. “These raids and the court cases against prominent whistleblowers demonstrate that Australia’s federal whistleblower protection law needs to be reformed, and our media better supported to expose crime and misconduct.”

Stronger legal protections for private-sector whistleblowers introduced earlier this year were world-leading, she added. “Because these reforms set out a pro-active approach to supporting and valuing whistleblowers, they have the power to inspire a culture-changing shift towards greater accountability and integrity. Our public servants deserve the same high standards of protection and support.”

Correction: an earlier version of this article misquoted Justice John Griffiths. He described the PID Act as “impracticable” rather than “intractable”.

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