Government flags changes to public sector whistleblower laws

By Shannon Jenkins

Thursday December 17, 2020

Christian Porter
Christian Porter. (AAP Image/Lukas Coch)

Commonwealth public servants who blow the whistle will receive greater protection under changes to “confusing and impenetrable” public interest disclosure laws announced by attorney-general Christian Porter on Wednesday.

The changes have been put forward in the federal government’s response to the Moss Review of the Public Interest Disclosure Act, which had called for a range of improvements to the regime governing disclosures made by public servants.

The government has accepted 30 of the review’s 33 recommendations in full, part, or in principle, and has proposed a number of other potential reforms which would make protections more consistent with those under the private sector scheme.

The changes would strengthen the oversight role of the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security, and would require agencies to support public officials when making disclosures, the government said.

Other changes include:

  • Focusing the Act on more serious wrongdoing and misconduct by excluding conduct solely related to personal employment-related grievances,
  • Encouraging disclosures and strengthening support for whistleblowers by requiring principal officers of agencies to support public officials in the making and handling of disclosures, and making it easier for disclosers to get legal advice about making a disclosure,
  • Enabling small agencies to allocate disclosures to their portfolio department for investigation,
  • Making it an offence to cause detriment to a witness to a PID Act investigation.

Porter said the PID Act has been “widely criticised for being confusing and impenetrable” for the public servants “who rely on it for guidance and support”.

“Our reforms will ensure the Act is clear and understandable and provides an effective legal framework that supports and protects public sector whistleblowers, while balancing important national security considerations with regard to the unauthorised release of sensitive information,” he said.

Read more: Attorney-general open to reforming ‘obtuse’ federal whistleblower protection law

The government rejected two recommendations, including that the procedural requirements of the Act be amended in order to adopt a principles-based approach to regulation, and that the effectiveness of the principles-based approach to regulation be evaluated periodically to assess the experience of individuals, agencies and investigative agencies.

“The government is not persuaded a principles-based approach for the PID Act will achieve sufficient certainty for disclosers and for public officials who are responsible for handling disclosures made under the Act,” the government said.

“A level of prescription in the Act is necessary to achieve certainty on handling processes, as well as obligations on public officials. While it is acknowledged that prescription can add to perceptions of legal complexity, this can be mitigated through other measures, such as education and training to users and clarifying the language and structure of the Act itself while maintaining the prescribed requirements.”

The government also ‘noted’ the recommendation that the application of the PID Act be extended to members of Parliament or their staff “if an independent body with the power to scrutinise their conduct is created”.

The parliamentary joint committee on intelligence and security had recommended the government release its response to the Moss Review as part of its inquiry into law enforcement and press freedom.

The committee launched the inquiry in July 2019, following police raids of the ABC and News Corp journalist Annika Smethurst’s home.

The government has also released its response to the press freedom inquiry, and has accepted all of the recommendations. Porter said this would:

  • Ensure that only Supreme or Federal Court judges can issue search warrants against journalists for disclosure offences,
  • Ensure warrants can only be issued against journalists for disclosure offences after consideration by a Public Interest Advocate,
  • Enhance reporting requirements in relation to warrants exercised against journalists,
  • Require the government to consider additional defences for public interest journalism for secrecy offences.

Porter said the reforms would “support the right of journalists and whistleblowers to hold governments at all levels to account by shining a light on issues that are genuinely in the public interest”.

Read more: Pezzullo says document-leaker was playing a forbidden ‘Canberra game’ and should ‘go to jail’


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