Allegra Spender (Wentworth, Independent) Share this | Hansard source

I move:

(1) Schedule 1, page 6 (after line 32), after item 8, insert:

8A After subsection 122.5(4) of the Criminal Code

Insert:

(4AA) Where a defendant seeks to rely on the defence at paragraph 122.5(4)(a), on the grounds that they have made an external or emergency disclosure in accordance with section 26 of the Public Interest Disclosure Act 2013, it is sufficient for the defendant to show:

(a) in the case of items 2 and 3 of the table in that section—all the further requirements set out in column 3 of the item are met; or

(b) the disclosure is otherwise reasonable and in the public interest, having regard to all of the circumstances.

I rise to move this amendment to the Secrecy Provisions Amendment (Repealing Offences) Bill 2026. As I flagged in my second reading speech, I'm pleased with this legislation being introduced and I commend the government. However, in the absence of simultaneous reform to protect whistleblowers, and reforms to the PID Act, there are omissions in this bill which ultimately may harm those who are protecting the public interest. My amendment attempts to address one of these issues.

Under section 122.5(4) of the Criminal Code, a person has a defence to a secrecy offence if they have made a public interest disclosure in accordance with the Public Interest Disclosure Act 2013. On its face, that looks like an adequate provision. In practice, it is in fact deeply flawed, because the PID Act's requirements for a qualifying external emergency disclosure under section 26 are technical in the extreme. Before a public official can make an external disclosure—that is, disclose to a journalist, a member of parliament or any other person outside government—they must navigate a set of conditions that are easy to fail on a technicality. Miss one step in the sequence and the PID Act immunity does not attach. If a person is not familiar with the whistleblower schemes, they may find themselves facing serious criminal charges.

The Human Rights Law Centre, which runs Australia's only dedicated whistleblower legal centre, was clear about this issue in its submission to the Senate committee. In its experience, the PID Act is not fit for purpose. The conditions are difficult to satisfy. Genuine public interest disclosures regularly fall outside them, and when they do there is no current legislative safety net, just criminal exposure.

My amendment creates that safety net. It inserts a new subsection, 122.5(4AA), which provides that, where a defendant cannot satisfy every technical requirement of the PID Act's external or emergency disclosure pathway, they may still access the defence if they can demonstrate that their disclosure was reasonable and genuinely in the public interest, having regard to all circumstances. If someone makes a disclosure and does not fulfil the technical requirements but it cannot be proven they were completing this disclosure for a reasonable public good, they will still be held liable under the secrecy provisions. This is seeking to protect those who are sharing for the genuine public interest.

I want to be precise about what this amendment does and does not do. It does not override the PID act. The existing section 122.5(4) defence for compliant PID Act disclosures remains entirely intact. My amendment adds a parallel pathway. It does not replace or weaken the primary one. Compliance with the PID Act's full requirements remains the clearest and most certain route to protection. Within the PID Act remains an express carve-out: a disclosure to a foreign public official cannot attract the defence, regardless of the claimed public interest. National security concerns about disclosures to foreign governments are real, and this amendment does not disturb them.

I accept this amendment does not resolve every problem with the whistleblower framework. The PID act needs comprehensive reform. That work is pending by the government. I understand they have committed to the second tranche of reforms in this area. But, where there is room for progress, we should try and achieve it instead of waiting for the next suite of reforms. This amendment is a small but real step towards giving whistleblowers what they deserve. Having moved the amendment circulated in my name, I commend it to the House.

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