Senate debates

Wednesday, 10 May 2023


Public Interest Disclosure Amendment (Review) Bill 2022; Second Reading

10:12 am

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | | Hansard source

The coalition will be supporting this piece of legislation, the Public Interest Disclosure Amendment (Review) Bill 2022. The bill implements 21 of the 33 recommendations of the 2016 Moss review into the Public Interest Disclosure Act 2013. It also implements recommendations 6.1 and 6.3 of the Parliamentary Joint Committee on Corporations and Financial Services 2017 inquiry into whistleblower protections in the corporate, public and not-for-profit sectors, and it implements recommendations 10 and 11 of the 2020 inquiry by the Parliamentary Joint Committee on Intelligence and Security into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. These recommendations have been agreed to by the coalition, and we welcome these changes.

The bill itself, though, deals with the Commonwealth government's whistleblower protection and disclosure regime. It is an accountability mechanism. It is important that accountability measures achieve what they are intended to achieve and avoid the unintended consequences that can often result in more harm being done than good. That has always been the contention of the coalition when debating transparency legislation, and that is why, in coming to this particular bill, we are very much in support of making improvements to the Public Interest Disclosure Act in line with the recommendations of the Moss review which are enacted by this bill.

The Public Interest Disclosure Act was a creation of the former Rudd-Gillard government, but it actually happened at the very end of its term, and it is a little ironic that the current Attorney-General was also the Attorney-General at that time and brought forward his bill just as the parliament was about to expire, which, I have to say, meant that, at the time, there could be little attention or debate given to it. One may say that, jump forward to 2023, to the approach being taken at this point in time, in this parliament, by the Attorney-General, a pattern of behaviour in relation to very poor judgement is now occurring when it comes to transparency and inquiry of pieces of legislation. These are fundamentally important pieces of legislation that this Attorney-General is responsible for.

When this bill was first brought forward, given the timing, little attention to detail or debate could be given to it, but the coalition at the time did welcome and support the transparency measures. Through the committee process, though, the coalition helped to substantially improve the bill. We put forward amendments to tighten and focus the act. Key to those amendments was a requirement that the act be reviewed to understand its impact. And here we are today, debating the bill before the Senate. I am pleased that at that time we pushed—and we pushed very hard—for that statutory requirement for a review. That is actually how the Moss Review came about. Through the course of the Moss review, it became clear that further refining was needed.

The Moss review made clear that, despite the good intentions of the Public Interest Disclosure Act, there is significant room for improvement in how the legislation itself actually operates. At present, the purpose of the act is not being sufficiently achieved, as the scope is wrong and the procedures too complex, leaving complainants dissatisfied and agencies struggling to implement the regime. Again, by way of comment, this is what happens when you don't enable proper scrutiny and debate in relation to a complex piece of legislation. I now want to quote from the Moss review. It said:

The experience of whistleblowers under the PID Act is not a happy one. 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 also found:

… the bulk of disclosures related to personal employment-related grievances and were better addressed through other processes. Agencies noted also that the PID Act's procedures and mandatory obligations upon individuals are ill-adapted to addressing such disclosures …

The review, therefore, concluded:

… the current PID Act provisions impair the effective operation of the framework. In this respect, the Review notes that there are two principal challenges:

      The review also found:

      Most PIDs concern matters that are better understood as personal employment-related grievances, for which the PID Act framework is not well suited.

      In short, the act is being used for the wrong purposes, and it is doing so badly. It needs to be tightened and focused in order to achieve the purpose that the legislation set out to achieve.

      The bill before us today is an attempt to correct some of the act's shortcomings. It will now remove personal work related conduct from the PID scheme unless it relates to systemic wrongdoing or reprisal action. It will provide increased flexibility around the handling of disclosures and provide clearer time frames. It will extend protections from reprisals to witnesses and to those who have made, may have made, proposed to make or could make a disclosure. Finally, it will improve information sharing between agencies.

      It is worth noting that these are the types of limitations the coalition was concerned to try and address when the act was first considered in 2013. Jump forward to 10 years later, and I really do hope a pattern of behaviour is not setting in with the current Attorney-General and a very, very poor judgement in relation to how he treats important pieces of legislation that this parliament deserves to scrutinise properly—because, coming out of the Moss review, what do we see? The issues that the coalition raised at the time have now come into play. They bore out in reality, and we are now finally addressing them as a result of the Moss review.

      I now go to the coalition's positions on some of the key issues at that time, back in 2013. Section 31 of the act was introduced to give greater clarity to what would be considered disclosable conduct. The coalition was rightly concerned that the definition of disclosable conduct was far too broad and that the act would capture far more than it ought to capture. Section 31 made it specifically clear that policy disagreements did not amount to wrongdoing and could not be captured. The then shadow Attorney-General, George Brandis, said:

      … the purpose of this legislation is not to provide a platform for people to agitate political grievances or to provide a forum for people to use to tie up political or administrative decision-making merely because they may disagree with the decision that has been made. The purpose of whistleblower protection legislation is, and only is, to protect whistleblowers who disclose wrongdoing.

      We've seen in the Moss review that the definition remains too broad. While policy disagreements were rightly excluded by the coalition, employment grievances have clogged up the work of the agencies and were never the purpose of the act. Agencies must not ignore issues relating to workplace grievances or conflict. These matters must be addressed, of course, but the frameworks established by the PID Act are not designed for dealing with those matters and should instead be refocused on matters relating to wrongdoing, such as serious misconduct or fraud, as I said previously. Workplace grievances themselves should be resolved through other processes. Finally, the bill makes changes to the National Anti-Corruption Commission Act to align the definition of reprisals and detriment with the definitions that will be in the Public Interest Disclosure Act.

      In conclusion, these are material, mechanical improvements to the operation of an important transparency mechanism, and the coalition supports them. We believe that whistleblowers must be able to make disclosures without fear of recrimination but that, equally, schemes should not be open to abuse by those who seek to cause mischief or achieve a political or industrial outcome through an inappropriate disclosure. Getting the balance right on this legislation—as we said back in 2013 and we say again in 2023—is essential. We welcome these adjustments that correct some of those past flaws, and we note further government amendments that we understand will be moved to address issues identified during the committee inquiry into the bill. Ultimately, it is the hope that those who make disclosures are genuinely protected and that serious matters of misconduct are investigated by our agencies. I commend the bill to the Senate.

      10:23 am

      Photo of David ShoebridgeDavid Shoebridge (NSW, Australian Greens) Share this | | Hansard source

      I rise on behalf of the Greens to indicate we will be supporting the Public Interest Disclosure Amendment (Review) Bill with amendments that we'll address in the committee stage. I say at the beginning that this is a bill about protecting whistleblowers, and, at its core, protecting whistleblowers is about protecting the truth. Without a commitment to truth—which the Greens accept can include open and challenging contests about what is true—democracy simply can't function. That is why this bill is so important. It's also why the bill has been put under close scrutiny by the Standing Committee on Legal and Constitutional Affairs.

      The Public Interest Disclosure Act 2013, which this bill seeks to amend, is one of a number of critical ways we protect whistleblowers in this country. In the 10 years since it was enacted, there have been very significant developments internationally and domestically that have not been incorporated in Australia's whistleblower laws.

      In that time, there have been whistleblower protections inserted into the Corporations Act that are, in significant ways, superior to those that apply to public sector employees under the PID Act. We've also seen the 2016 report of the Moss review into the PID Act, which sat on the shelf unimplemented by the former government. It is a matter of public record that the former government had the Moss report for six years, with key recommendations about the urgent need to repair and improve our whistleblower protections in this country, and they did nothing. Not only did they do nothing; under the former government a number of whistleblowers who sought the protection of the PID Act and came out and bravely told the truth ended up being prosecuted. To the current government's shame, those prosecutions are continuing, and I'll address that at some further point.

      What we do have at the moment are public sector whistleblowers with far fewer protections than they deserve. As a result, this parliament has an obligation—it is, I think, an obligation not just on behalf of those whistleblowers but on behalf of the entire country—to address these matters as urgent matters, and I have to say that this bill goes about 20 per cent or, perhaps, 25 per cent of the way there.

      There are three areas that I'll focus on in this second reading contribution that are directly related to this bill. The first is the inappropriately large carveout proposed under the Public Interest Disclosure Act for personal work related matters. This bill, in the form as tabled, gets it wrong, and I hope we will correct that in the committee stage. The second matter is the absence of one of the critical national reforms we need, which is a national whistleblower commission.

      The third matter is the inexplicable lack of remedies for whistleblowers who approach the National Anti-Corruption Commission. It's important when we're addressing this point to realise that the government said at the end of last year and in the first part of this year that the amendments in this bill were absolutely urgent. The Attorney said that they needed months of implementation in the public sector before the NACC opened and was, indeed, very critical of the crossbench and the opposition for taking this bill to an inquiry. He was very hot under the collar. He was very heated. He said it was urgent. He said they needed months to implement it. He was very, very angry at the opposition and the crossbench for taking this bill to an inquiry.

      We took it to an inquiry. The inquiry reported well over a month ago. The inquiry reported in March, in time for the March settings, and the Attorney failed to bring it on. So we will be seeking an explanation from the minister about what happened to the urgency. We were told it was urgent to get it through in March. The committee complied with that. We did everything we could. We shortened our hearing schedules and produced the report, and then the government just did nothing with it for the better part of two months. Where is the urgency, and is it going to be ready in time for the NACC to open its doors?

      I said at the beginning of this contribution that protecting the truth should be a political project that unites political parties who are serious about democracy. We should all come together here and celebrate when whistleblowers tell the truth about government misbehaviour and corporate misbehaviour. Instead, this parliament has failed to back in key whistleblowers. It has failed to send the biggest signal it can send to people in the public sector about truth-telling. It has failed to make a statement for the end of the prosecution of whistleblowers David McBride and Richard Boyle. That's why, on behalf of the Greens, I move the second reading amendment:

      At the end of the motion, add ", but the Senate:

      (a) recognises the need for further reforms to whistleblower laws; and

      (b) supports ending the current prosecutions of whistleblowers David McBride and Richard Boyle and ensuring that what happened to them does not happen in the future".

      This is a chance for this parliament, for this chamber, to come together and say,'Yes, we are not just tinkering with the laws. We are making a clear statement that the ongoing criminal prosecution of David McBride for telling the truth about war crimes in Afghanistan is a stain on this government.' It is a stain on the former government and it sends a signal to everybody in the ADF: you better not tell the truth again or this government is going to come after you and try and put you in jail. David McBride should be acknowledged as a truth teller, should be acknowledged as a member of the ADF who was willing to put his career on the line to tell the truth about war crimes, which led to the Brereton report, which identified the war crimes in detail. What has been this government's response and what was the previous government's response? Well, the current Attorney-General is quite happy for David McBride to continue to be prosecuted and to be put in jail for telling the truth about war crimes. We must make a statement here today that that is an obscenity and say to the Attorney, 'Drop the prosecution.'

      I say the same about Richard Boyle. Richard Boyle saw appalling behaviour in the Australian Tax Office—utterly appalling behaviour. He saw the way in which individuals were being dragged through the courts, losing their financial security. It was happening on an industrial scale in the Australian Tax Office. He tried to get it fixed internally and they refused to address it. Then finally, in desperation, he came out and told the public the truth and he has been backed in by the ATO, investigated by the ATO, and backed in by a committee of this Senate, which said everything he said was right. The ATO has been forced to change its behaviour, and thousands and thousands of people are being protected from ongoing bastardry by the tax office. What did the former government do? It prosecuted him for breaching confidence and is trying to put him in jail. What is the current Attorney doing? Signing off on the continuation of that prosecution. They are quite comfortable with Richard Boyle, a whistleblower from the public sector, being put in jail for saving thousands of Australians from being completely monstered by the tax office.

      We have a chance now in this debate to support the Greens' second reading amendment and say those prosecutions should end. That is about the most fundamental signal we could send to whistleblowers. Yes, by all means amend the law, but whistleblowers, whether in the tax office or the ADF, the Attorney-General's Department or Home Affairs, are thinking of telling the truth and looking at the legal protections, and they don't seem very good. But then the big meta message sent by the current government is their ongoing prosecution of David McBride and their ongoing prosecution of Mr Boyle. Unless the message is sent to whistleblowers that we're going to protect them and they won't be prosecuted, we can change the law all we like, but whistleblowers are still getting the message from this government as they did from the previous one : if you stick your head above the trenches, we will kick it and we will put you in jail. We have a chance to fix that.

      I deal now with the inappropriately large carve-out that is proposed in this PID Act for personal work related matters. This was raised by a great majority of engaged stakeholders to the inquiry—the CPSU, the Alliance Against Political Prosecutions, the Uniting Church, Maurice Blackburn Lawyers, the Australian Lawyers Alliance, Human Rights Law Centre, Griffith University and Transparency International. I commend them all for the way in which they engaged in the inquiry and for the strength of their submissions. The essence of that concern is that the proposed drafting in sections 29(a) and 29(b) of the bill does not implement recommendation 5 of the Moss report. Moss's recommendation was simple and it was balanced. It said:

      That the definition of 'disclosable conduct' in the PID Act be amended to exclude conduct solely related to personal employment-related grievances, unless the Authorised Officer considers that it relates to systemic wrongdoing. Other existing legislative frameworks are better adapted to dealing with and resolving personal employment-related grievances.

      The Greens agree. To the extent a matter is solely related to personal employment related grievances, it shouldn't be dealt with under the PID Act. This bill does not implement that recommendation. The rationale behind that recommendation was that, if a complaint solely relates to that workplace issue then it should be taken under those other mechanisms, not the PID act. The PID act, which contains quite a rigid response structure and strict confidentiality, can actually be a barrier to resolving some of the issues in the workplace. Moss found that too many PID act complaints were simply workplace issues, and therefore the scheme and workplace relations within the public sector would be enhanced by removing the matters that were solely—and I emphasise the word 'solely'—work-related personal concerns. The reason Moss recommended limiting the exclusion to matters that are solely work-related personal concerns is he recognised that once someone blows the whistle, the line between the original public disclosure and any adverse action taken against the whistleblower after that is very hard to separate. The evidence before Moss, like the evidence we got before our inquiry, made it clear that many whistleblowers, once they make their concerns public, very often face reprisals in the workplace. That can include seemingly unrelated disciplinary action, demotions, even dismissals that are purportedly for matters unrelated to their whistleblowing but are in truth intimately connected.

      There is merit in Moss's balance recommendation, but this bill goes beyond that. The proposed subsections 29(2) and 29(2A) exclude work-related conduct matters from the operation of the PID act. There's no reference to the limitation of 'solely'. It includes such a broad definition in the carve-out that the exclusion far exceeds Moss's much more balanced proposal. While the proposed subsection 29(2) excludes personal work-related matters from the 29(2A) carve-out, where they're taken as reprisal actions against the whistleblower, as multiple submissions to the inquiry pointed out, that's a toothless, meaningless protection. Since the inception of the PID act, guess how many successful prosecutions there have been for reprisal actions? In 10 years of the PID act, with multiple complaints under the act and thousands of disclosures, how many successful prosecutions? Not one—not one successful prosecution for reprisal, because the law doesn't work. Unlike the Corporations Act, where there is a reverse onus, the PID act puts the almost impossible task to the prosecution of proving what's in the mind of the person taking the reprisal action. You have to prove adverse intent, and it doesn't work. For some reason, the Attorney has failed to fix that.

      Can I address very briefly the need for a whistleblower commission? We can change the law, tinker with the law and make marginal changes here, but when a whistleblower stands up against a multibillion-dollar government agency, the law at the moment means they're on their own. They need someone on their side—not one individual, but an institution. As happens in the Netherlands and in other jurisdictions around the world, they need a whistleblower commission, properly funded, who will be on their side and help take them through the steps of being a whistleblower and give them some balance in what is otherwise a David-and-Goliath fight where we know, from case after case after case, that Goliath keeps winning and shutting down the truth.

      These amendments are said to be urgent for the NACC to be operating. That is true. So why are there no remedies for the whistleblower protections and the PID act protections in the NACC act? Why is there no remedy to allow for reinstatement? Why is there no remedy to allow compensation to be paid? I'll be asking the minister in the committee deliberations: why the absence of remedies and does that really protect whistleblowers?

      10:38 am

      Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

      I acknowledge at the outset the contribution that Senator Shoebridge made through the committee process as we looked at the Public Interest Disclosure Amendment (Review) Bill 2022. I think important evidence was gathered during the committee stage. I also commend the officers of the Attorney-General's Department. I am very pleased to see that some amendments have been put forward by the government in relation to that vexed issue of the entwining of personal, work-related conduct with matters which properly form the bases of a public interest disclosure. As was commented on during the committee's deliberations and in the evidence we received, quite often there is a blurring of the two. I say that as someone who had responsibility as a whistleblower officer in a corporate sector organisation with nearly 4,000 employees and with operations across a number of continents and as someone having to deal with the sorts of matters which do arise.

      Some of these issues are extraordinarily complicated because, as Senator Shoebridge rightly said, sometimes whistleblowers who are raising concerns about what is happening in an organisation do get targeted in terms of their workplace performance, in terms of whether or not they're overlooked for promotions, in terms of allocation of responsibilities and in terms of being counselled with respect to their attitude. The examples I gave during the course of the inquiry—and these are real-life examples—were about executives or senior managers potentially raising issues with respect to cost blow-outs and schedule blow-outs on projects and raising concerns with respect to project governance and then being told that they had the wrong attitude or weren't playing the team game—'Get on the team game'—et cetera. These can be very, very difficult issues, and I'm firmly of the view that, in considering those issues, consideration has to be given to the reality of the situation of the whistleblower themselves. So I am pleased that the Attorney-General's Department has worked on putting forward some amendments, which I do think clarify some of the issues which arose, and commend the government for doing so. As Senator Cash said, the opposition is supporting the legislation. We think there are important changes which are coming through this legislation. There are some other further reforms which I think should be considered as the operation of this legislation is reviewed, and I'll talk about that.

      At the outset, though, I want to deeply recognise the contribution that whistleblowers make to our civic society in both the public sector and the private sector. They are absolutely vital to identifying misconduct that occurs in both the public sphere and the private sphere. I was personally honoured, in the course of the conduct of the committee inquiry, to hear evidence from Mr James Shelton, who is a quite a legendary whistleblower in the Australian context. Mr Shelton was involved in a case exposing and bringing to the public attention one of the most egregious cases of foreign corruption engaged in by Australian companies in our modern history, and that was the foreign bribery offences committed by Securency and Note Printing Australia in their efforts to generate business, in particular across South-East Asia. Mr Shelton, with another individual called Mr Brian Hood, extraordinarily bravely brought those egregious activities to light.

      I want to read and put on the record in this place and in honour of Mr Shelton, Mr Hood and other whistleblowers the comments which Her Honour Justice Hollingworth made in relation to one of the cases. We should all reflect on these words of Her Honour Justice Hollingworth in terms of whistleblowers and the important contribution they make to civic society:

      13. Before I turn to consider your personal circumstances, I wish to say something about the effect this offending has had on others. The prosecution rely upon the significant adverse effects that all of the foreign bribery offences have had on two "whistle-blowers", James Shelton and Brian Hood.

      14. Mr Hood joined NPA as its company secretary, the year after you had left.

      And I should say she's referring there to those who have pleaded guilty to the offences.

      When he became aware of the companies' illegal activities, he raised his concerns with the CEO, the NPA board, and a number of RBA officials. His attempts to report what was happening, and to change the corporate culture, were met with hostility and resistance. He was eventually made redundant.

      15. Mr Shelton joined Securency in 2007, as the director of business development. When he realised that he was expected to take part in foreign bribery as part of his role, he too became extremely concerned. He raised the matter with the Australian Federal Police in 2008, but they appear to have done little to investigate his reports at that time. Mr Shelton was dismissed in late 2008.

      16. As I have noted on earlier occasions, the corporate cultures at both NPA and Securency involved secrecy and a denial of responsibility for any wrongdoing; staff were discouraged from examining too closely the arrangements in relation to overseas agents. Given the corporate cultures in which they were operating, Mr Hood and Mr Shelton both showed tremendous courage in raising their concerns about the foreign bribery activities with appropriate people. In each case, their concerns were dismissed or not followed up on. Their careers suffered as a consequence of their attempts to do the right thing.

      17. Unfortunately, given their number, size and complexity, the various foreign bribery court proceedings have lasted for many years longer than anyone might have anticipated, without there having been any public acknowledgement of the very important role played by Brian Hood and James Shelton in exposing what happened within Securency and NPA. I can readily accept that what has happened to them since they raised their concerns has caused both of them considerable personal distress, professional hardship, and financial loss.

      As we reflect on this legislation, we should reflect upon the courage demonstrated by whistleblowers both in the public sector and in the private sector, and the personal cost that they incur when they blow the whistle on wrongdoing. All of our considerations of these matters should be informed by consideration of that courage on the part of the whistleblowers. In my engagement with Mr Shelton during the course of the inquiry, I raised the issue of how assistance could be provided to whistleblowers in these extraordinary situations. We've just heard from the judge in her sentencing remarks with respect to someone who was actually found guilty of engaging in this inappropriate conduct. Her sentencing remarks talked about the toll that this took on Mr Shelton and Mr Hood. I had an engagement with Mr Shelton with respect to this, in terms of how we can better support whistleblowers in this position. I want to read from the engagement I had with Mr Shelton in that regard:

      Senator SCARR: Okay, understood. I'll move quickly to my second topic, which is the utility of a whistleblower protection authority. Mr Shelton, in trying to put myself in your shoes—which is very difficult to do—it seems to me that someone in your position as a potential whistleblower is standing at the entrance of an extraordinarily complicated legislative maze.

      Mr Shelton: Yes.

      Senator SCARR: You enter that maze, and there are inclusions, exclusions, defined terms, undefined terms and statutory cross-references. It's like you're trying to navigate the maze while solving a cryptic crossword puzzle. At the same time, you've got the personal pressure of what it means for you professionally and financially, and what it means for your family. And, at the same time, you've got the potential threat of reprisal action, right?

      Mr Shelton: Yes.

      Senator SCARR: While I was thinking about that situation—and Senator Shoebridge gave the analogy of someone having a map to guide them through a minefield, which is very evocative—I was also thinking about the potential utility of a whistleblower protection authority. It can potentially act as a guide, to provide guidance in navigating that maze.

      …   …   …

      Mr Shelton: Indeed, and I agree 100 per cent with what you've just said. Just briefly, for my experience there was no whistleblower protection authority. I had to get legal advice at $600 an hour each time I met the AFP or did a witness statement.

      This is someone who has blown the whistle on one of the most egregious acts of foreign bribery in Australian corporate history—involving partly government owned agencies—and he's had to go and get his own legal advice at $600 an hour each time he went to court. This is what he said:

      … I was summonsed to appear as a witness, had to wait out the front of the court and then was cross-examined by QCs for two days. There was no path or guide; I did it all because I was determined to get this result.

      An independent whistleblower protection authority, which could provide a guide, a way forward and a pathway on what you will experience, what's going to come up and what you will feel, and also provide some support services, would have made the world of difference to me. It's too late for me, but, for others who come after, yes—100 per cent—there needs to be an independent whistleblower protection authority that covers both the private and public sectors.

      What is the point of putting in all of these protections to help whistleblowers from reprisal actions if they're in a David-and-Goliath battle with a huge agency, which has all the resources that it requires in order to defend itself, and you've got someone like Mr Shelton or Mr Hood, who has to delve into their own pockets to try and continue the good fight in terms of exposing corruption and wrongdoing in this country. They need support.

      I note that the Parliamentary Joint Committee on Corporations and Financial Services recommended, during the course of the previous government, that a whistleblower protection authority be established. Amongst other things, the committee proposed that the authority would:

      provide a clearing house for whistleblowers bringing forward public interest disclosures;

      provide advice and assistance to whistleblowers;

      support and protect whistleblowers—

      and that is absolutely needed. And, from my perspective, I think that everything that we can do to provide support to whistleblowers who are identifying and revealing in the public interest corporate wrongdoing is a good for all of society, because we need these episodes of corporate wrongdoing and public-sector wrongdoing to be exposed. And we need them to be exposed as early as possible, because that's in the best interests of the whole of the Australian society.

      I'm someone who worked for 12 years in an organisation that had interest in South-East Asia and in other jurisdictions around the world. It had high-risk ratings in terms of foreign corrupt practices. I'm pleased to say the company I worked for never went down that path—it was part of our culture. But I saw firsthand the impact of corruption on those societies, and, when we look at Mr Shelton and we look at Mr Hood, we should reflect on the matter that not only did they do a great service to the Australian community they also did a great service to the people in those countries, and South-East Asia, in particular, as some of their leadership were prepared to accept bribes to the direct detriment of the people of those countries. So, not only did Mr Shelton and Mr Hood provide a good service to the people of Australia they also provided a great service to the people in those overseas jurisdictions where that foreign, corrupt activity was taking place, and that needs to be recognised as well.

      I note that the previous government, in response to the Joint Parliamentary Committee on Corporations and Financial Services recommendation that a whistleblower protection authority be established, the previous government's, the coalition government's, response was:

      the Government supports a post-implementation review of whistleblowing protection. This will provide the opportunity to assess the merit and cost case of establishing a one-stop shop Whistleblower Protection Authority when the present reforms have had a reasonable time to operate and further information is available.

      So, certainly the previous government, the coalition government, of which I was a part, was open-minded to the establishment of a whistleblower protection authority. I think the previous government was right to be open-minded with respect to the establishment of a whistleblower protection authority. From my perspective, I think the establishment of such an authority would provide an invaluable resource to assist whistleblowers who want to do the right thing, as Mr Shelton did and as Mr Hood did, to expose wrongdoing but to provide them with the support they need to navigate an extraordinarily complicated system and to give them some protection against reprisal actions that whistleblowers often suffer.

      10:53 am

      Photo of David PocockDavid Pocock (ACT, Independent) Share this | | Hansard source

      I rise in support of the Public Interest Disclosure Amendment (Review) Bill, and I thank Senator Scarr and Senator Shoebridge and the many others who have worked on this for much longer than myself. It's great to see the government moving the update to the Public Interest Disclosure Act. These changes are long overdue. Until recently, Australia was falling down the list in the annual Corruption Perceptions Index from Transparency International. In the most recent report earlier this year, we went from a record low of 18th up to 13th. I believe this improvement is in large part due to the passing of the NACC. It's a significant change, one that I welcome, but it brings us to a crucial missing part of the puzzle, which is the legal protection given to whistleblowers in Australia. Clearly, that is not up to scratch. Some protection is given to whistleblowers in the public sector under the PID Act, which the A-G himself oversaw in 2013.

      This is obviously a particularly significant piece of legislation for many people in the ACT, many hardworking public servants. But since its legislation in 2013, significant issues have become clear. In 2019, Justice John Griffiths described the act as 'technical, obtuse and intractable'. He went on to say that it:

      … is 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 Justice Griffiths was not the first to raise concerns. In 2016, the Moss review of the act made 33 recommendations for changes to the legislation. I welcome the implementation of 21 of those recommendations in this bill. The changes represent real improvements that will assist those who speak out, including those who make disclosures to the NACC. I applaud the Attorney-General for his work on the bill, which seeks to improve the protections that he himself put in place in 2013. But we still have a long way to go.

      Whistleblowers in Australia are not being properly protected. Instead, they are being prosecuted. They are forced to rely on protection from the offices of parliamentarians to speak out. Andrew Wilkie, Zoe Daniel and I recently used parliamentary privilege to voice concerns raised by whistleblowers. I was able to raise concerns about an oil spill that killed dolphins and has been covered up, Mr Wilkie raised concerns about fraud by the Hillsong Church and Ms Daniel raised concerns about children being kept in solitary confinement. The fact that our offices protect us from the risks experienced by whistleblowers is a sign of the strength of our democracy. The fact that whistleblowers are forced to come to us is a sign of how far we have to go to protect whistleblowers. They should not have to seek parliamentary privilege to do what is in the public interest. When whistleblowers don't speak up, we all suffer. Where there's corruption, maladministration or incompetence, it needs to be called out and dealt with.

      As legislators, we should all be pushing for the quality of governance that we offer our constituents to be improved. These reforms, which are a good first step, are part of a two-step package. The attorney-general has committed to a second stage of reforms that will substantially improve the protections offered to whistleblowers. Key to these further reforms will be a whistleblower protection authority or commissioner. There will soon be consultation and discussion around the possible establishment of such a body. I welcome this consultation—consultation is a good thing—but I urge the government to act swiftly. We've seen the cost of inaction with the sentencing of Witness K and the Attorney-General's intervention in the case of Bernard Collaery.

      As we debate this today, the trials of Richard Boyle and David McBride continue. These are two people—two Australians—who made the difficult decision to blow the whistle on very significant issues, and now they are being prosecuted for their decision. We cannot have more cases like Witness K, Bernard Collaery, Richard Boyle and David McBride. We need whistleblower protections that work, and we need them now. I urge the government to expedite this to ensure that we have world-class whistleblower protections here in Australia because we will all benefit from that.

      10:59 am

      Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

      I rise today to make a contribution in relation to this legislation on whistleblowers, the Public Interest Disclosure Amendment (Review) Bill 2022. It is something that I think is absolutely critical that we get right in this place. It has been a long road to get to this point in this parliament. I want to give a little bit of background. Obviously, there has been legislation in place to provide some kind of processes and some kind of protection for whistleblowers. For example, the Taxation Administration Act 1953 raised this issue of protecting whistleblowers. We also saw amendments to the Corporations Act 2001 to try and protect whistleblowers in the private sector, and I will get to that in a second. I participated in the Joint Parliamentary Committee on Corporations and Financial Services inquiry in 2016 and 2017 into whistleblower protections in the corporate, public and not-for-profit sectors. We have seen the Moss review.

      We have seen a lot of focus on some very high-profile cases where whistleblowers have actually been pursued and persecuted by this government. So, while on the one hand it is great being in here doing what we can to provide the necessary legislative protections for whistleblowers, it is ironic that on the other hand we are still pursuing high-profile whistleblowers like Richard Boyle, who blew the whistle on practices in the Australian Taxation Office, and David McBride, who leaked information which I will get to in a second which has led to disclosures of war crimes and even to the prosecution of Australian Defence Force personnel. Yet he still awaits trial as the government pursues him for blowing the whistle.

      In this parliament over many governments we have worked very hard to see an end to the persecution of Witness K. We tried to get up a Senate inquiry in the last parliament into matters concerning the disclosures of Witness K, but the crossbench and the Greens were unable to get the support of Labor in opposition at the time, which was very disappointing. I do commend the Attorney-General, Mr Dreyfus, for finally bringing to an end that prosecution of a whistleblower whose name we still don't know but who went through sheer hell in his personal life after he tried to go through processes within the Public Service not to leak information but to blow the whistle on something he felt deeply about. Instead, he was dragged through the court system for many years, presumably because the government wanted to make an example of Witness K. That's exactly what they're doing with Richard Boyle and David McBride. Can we at least acknowledge, senators, that it's great to be acting on whistleblower protections? But, at the same time, we have to end these high-profile prosecutions of people who were essentially blowing the whistle and trying to bring some justice to issues they felt very deeply about.

      I think the whistleblower protections inquiry has been very important to hone our attention on what needs to be done. That reported at the end of 2017, and it was very comprehensive. It took a number of submissions—over 100—and took evidence in a series of public hearings right around the country. It looked at the current public interest disclosure laws. It looked at previous inquiries and reviews. It looked at international developments and it provided an analysis of international and Australian whistleblower protections. It then looked at what legislation we currently have in place and the inconsistencies in current legislation and in whistleblowing processes and practices and how we might achieve consistency across sectors. It looked at constitutional limitations. It looked at a comparison of whistleblower protections as well as the definition of what would be classified as 'disclosable conduct'. It looked at the differences between current arrangements in that regard in relation to the public sector and the private sector. It then went through a definition of whistleblowers—what do we mean by whistleblowers?—and thresholds for protection, including suspected whistleblowers, protections for those handling disclosures within the public and the private sector, and protections for suppliers and customers. It looked at the anonymity of whistleblowers—provisions and protection for anonymous reporting, the continuity of protection and protections for confidentiality.

      It then looked at internal regulatory and external reporting channels, reporting channels in current legislation, internal disclosures, regulatory disclosures and external disclosures. It took evidence from members of parliament and advice from the clerks of both the Senate and the House of Representatives. It looked at protections, remedies and sanctions for reprisals. We received considerable evidence in regard to that. We also looked at systems in, for example, the US around providing rewards for whistleblowers, bounty systems in other jurisdictions, arguments for a reward system in Australia and arguments against reward systems. And of course we looked at the establishment of a whistleblower protection authority. That was an interesting one. There were a number of very detailed appendixes around case studies. I believe it's helped us get to this point where we are today.

      Going to the context of this bill, the Greens—as has been already outlined by my colleague Senator Shoebridge—believe it's a positive step to see the government taking action on updating Australia's whistleblower laws, and there is a broad consensus in this place on the need for significant reform. This bill is a beginning. The Moss review from 2016, which was seven years ago, is already significantly out of date, so implementing its recommendations isn't a comprehensive answer to what's needed here. But it's a start, and we commend the government for bringing it forward.

      But, even with these changes, the laws leave whistleblowers woefully unprotected. And risks, including court costs, are real, as well as career and personal costs. While a comprehensive review of the PID Act is promised, this is what we've been given and what will be applicable for the NACC's first complaints. That's deeply concerning and may significantly hamper the operation of an integrity body. Going forward, a whistleblower commissioner and commission will be needed to ensure that something is standing in the corner of brave whistleblowers in this country.

      We referred this bill for inquiry because of the significant concerns from the sector that, firstly, it would not deliver the needed changes to protect whistleblowers and, secondly, it would have unintended consequences, because of drafting, that would inappropriately exclude many issues that should be covered. We have significant concerns about the extent of the personal work related conduct carve out, as do most stakeholders in this debate. The carve out is supposed to limit matters that are about bullying or workplace issues being taken to the NACC, but this fails to recognise that most whistleblowing matters include a mix of disclosable content and the consequences of this in a workplace. We recognise that the government's own amendments to this bill that passed in the other place go some way towards addressing these concerns, but not far enough.

      Beyond this bill and going forward, there is a significant underlying issue, and that is the impact of the overly zealous use of secrecy provisions in laws and how that impacts whistleblowers. This is something that really needs to be addressed in the future, as well as, as I mentioned earlier, ending the ongoing prosecutions of Richard Boyle and David McBride, which are going to undermine public confidence in what we do here. We should actually do as we say and protect whistleblowers, not prosecute them publicly, not drag them through the courts and not make their lives hell in order to send a message to other whistleblowers. Clearly, we need serious reform in this place. And if we're going to do that, we need to drop these cases.

      I want to give a special shout-out to David McBride. I have been fortunate enough to speak with Mr McBride at a number of public appearances—as I know my colleague Senator Shoebridge has—particularly around the ongoing political persecution of Australian citizen Julian Assange, a Walkley Award winning journalist who is being prosecuted by the US government. They're seeking his extradition for publishing classified documents—documents that disclose war crimes, corruption, fraud and significant bad behaviour. I would like to make that shout-out to David McBride. He has shown a lot of courage. It wouldn't have been an easy thing to do, as I know from my personal relationship with Andrew Wilkie, the member for Clark in the other place, who blew the whistle on the BS around weapons of mass destruction that was used to take us into an illegal and immoral war in Iraq. I remember, at the time, Andrew Wilkie was essentially being threatened with life in jail for espionage or treason for doing something that he felt was morally right. It has actually turned out that he was right: there were no weapons of mass destruction. We were taken to a war that has killed millions and caused massive disruption across the Middle East on the basis of a massive deception. His courage should be applauded, as should David McBride's.

      I understand David McBride's trial is not going to be held until November this year, and even that's not necessarily set in concrete. It is over four years since charges were brought against David McBride. The trial, when it happens—if it happens—is expected to last for up to three weeks. But this has been hanging over his head since he was arrested at Sydney airport, after returning home from Spain in September 2018. He's accused of leaking classified Defence information to three senior journalists at the ABC—who, by the way, had their offices raided and searched—and also to Fairfax Media newspapers. The material that he leaked formed the basis of the Afghan Files, which led to a 2017 ABC expose revealing allegations of misconduct by Australian special forces in Afghanistan, including possible unlawful killings. As I mentioned earlier, there has now been a conviction in relation to this. The disclosures also led to the much-publicised Federal Police raid on the ABC's offices in 2019.

      David McBride has pleaded not guilty to five charges, including the unauthorised disclosure of information, theft of Commonwealth property and breaching the Defence Act. As I mentioned earlier, it's just hypocrisy for us, as members of parliament, to be coming in here, passing laws and talking about the need to protect whistleblowers while we are so actively persecuting a high-profile whistleblower who believed deeply that he was doing the right thing. How can it not be in the public interest to be releasing information about possible or probable war crimes by Australian Defence personnel? We can't point the finger at other countries when we treat whistleblowers in this country like that. As Kieran Pender, a lawyer at the Human Rights Law Centre, said:

      This case should never have commenced; but it is not too late for the Attorney-General, @Mark DreyfusKCMP, to end it. Rather than prosecuting whistleblowers, the govt should get on with fixing whistleblowing law—

      Like we're doing today—

      and ensuring accountability for Australia's wrongdoing in Afghanistan.

      (Time expired)

      11:14 am

      Photo of Barbara PocockBarbara Pocock (SA, Australian Greens) Share this | | Hansard source

      I rise to speak on the Public Interest Disclosure Amendment (Review) Bill. It's a really important debate that we're having here today, and this is a really important bill with more work needed. I want to thank Senators Shoebridge, Scarr, David Pocock and Whish-Wilson for their comments and I associate myself with many of the points that they've made.

      As legislators, we have much work to do to make sure that we improve the quality of information available to us as decision-makers. We rely on the efforts of people who bring information to us to expose corruption and malpractice and bring to the attention of us, as senators, things that need to change to improve governance. Whistleblowers have such an important role to play in this.

      Most importantly, as many of the other senators have said, we must protect and applaud whistleblowers and end the prosecution of people like Bernard Collaery, who has stood up for so long, so bravely, and whom I have had the privilege of meeting and talking at events with. We must also remember and applaud the behaviour of Witness K, David McBride and Richard Boyle. They are all heroes to the project of transparent governance, of response to serious errors in governance, management and activity in many parts of our government. They have brought to the attention of the international community activities that have really reflected on the character of Australian government and action in their attempts to improve the honesty and good practice of what we do and how we do it. So these are extraordinary people. They believed in truth, and we need to learn from their heroism.

      They've paid a big price. Senator Scarr went through what being a whistleblower does. It's a sacrifice. It's a sacrifice not just personally but often, in many cases, by their families. These experiences take years out of the lives of families and they are years of sacrifice as families support whistleblowers, because whistleblowers have to find places that will keep them afloat while they carry out the very difficult actions of truth-telling.

      Democracy relies on the disinfecting powers of whistleblowers. They are such an important part of that disinfecting power that we need in our government. I know this, personally, as a current participant in a committee of inquiry into consulting practices in our country, a set of practices that are now drawing on billions of dollars of public money. We are very dependent, as a senate and as a committee, on the bravery of whistleblowers coming forward into public discussion and bringing forward evidence and examples where practice within these very large public bodies and private organisations is very far from perfect—indeed, it ranges into corruption.

      This bill is a very positive step and we welcome it. And there's more to do. It's a positive thing to see a government taking action on updating these laws. They are well overdue for it and, as we see, there is a broad consensus for reforms that are really quite significant, which this bill makes a really important start on. We've heard how the Moss review, from 2016, is already well out of date, so turning to its recommendations, taking them seriously and turning them into legislation is very important, but it's not enough. We need to do more and, while we commend the government for bringing this forward, we really want to see action much more significantly on a further range of overdue recommendations.

      Even these changes will leave whistleblowers, those brave heroes, woefully unprotected and risk exposing them, as we've heard, to very significant financial cost as well as personal and family cost. As anyone who's supported a whistleblower knows, it's a really significant personal project that you give many years of your life to, in too many cases.

      A comprehensive review of the Public Interest Disclosure Act is promised. This is what we've been given. It's not comprehensive enough, and this act will be applicable for the NACC's first complaints. That's really concerning, because we need much stronger machinery that can underpin and support the work of that activity and give that new integrity body the teeth and the processes that it needs.

      We need a strong national anticorruption body that can act properly and with full force on the matters that come before it. We've heard about the experience of whistleblowers and how important it is that we put someone in their corner, not just their families, partners, kids or community but a whistleblower commissioner and a commission that will ensure that, for people who bring forward issues that are of very significant public importance and that are so important to this parliament, someone is standing with them as they commit their brave acts. We need whistleblowers, we rely on them, and we need to make sure that we give them the support they need.

      The Greens referred this bill off to an inquiry because of concerns that we had, which are very widely shared across the community by organisations that know of this experience and how we need to change it. We know those concerns go to the issue of how this bill as it is currently drafted will have consequences that are unintended because of drafting that excludes, for example, many issues that should be covered within the bill. We also want to recognise that the bill, as it is before us, does not deliver the protection that whistleblowers really need.

      As Senator Shoebridge has outlined, we have very real concerns. As Senator Whish-Wilson also pointed out, the question of the extent of the personal work related conduct carve-out is a real issue for us. There are a lot of stakeholders who have drawn attention to the fact that this is supposed to limit matters that are about bullying or workplace issues being taken to the NACC but it fails to recognise the very real experience of so many whistleblowers—that they do suffer personal consequences within their workplace. They're treated differently, and, as a Senator Scarr said, they can be made redundant. They miss out on promotion. They're excluded from all kinds of decision-making. As someone who has lived and worked for many years in very large organisations, I understand that many subtle practices can isolate and pressure a whistleblower, and there is often a set of behaviours and experiences that are intermingled with the activities of being a whistleblower. So we think the carve-out should apply solely to matters that are personal issues, and we need much more clarity around that question.

      We recognise that the government's own amendments to this bill that passed in the other place go some way towards recognising those concerns—that's a good thing—but we need to go further. Developments in recent years tell us and a lot of experiences tell us that we need to protect whistleblowers better and we need to do better around defining personal workplace issues. There's a lot more that's needed.

      There is a significant additional underlying issue—that is, the impact of the very, very overzealous use of secrecy provisions in laws that impact on whistleblowers, something that really needs to be addressed in the future. We've heard about the ongoing prosecutions of Richard Boyle and David McBride, which Senator Shoebridge went into. These prosecutions are a real dampener on people coming forward on public sector whistleblowing projects, and serious reform on this issue is really pressing.

      These truth tellers are being prosecuted, and, more than any law that we pass in this place or any words that we say, it is our actions that will speak to prospective whistleblowers. They look at the fact that great penalties, for example, have been imposed on Richard Boyle and David McBride in practice, and they hesitate. It has a chilling effect on the behaviour of whistleblowers, and we need to do much better at protecting and ending those prosecutions, which are absolutely inappropriate. Everything those brave men have said has been shown to be right. Their prosecutions are continuing under Labor, and it is a travesty. It needs to end.

      As senators and as people who have just passed a very large budget, we know that there are some very big spends in new areas coming down the pipe in our country. For example, there's $368 billion on submarines. We have a really big challenge in tax collection, keeping that honest and scrupulous and collecting the tax that we know taxpayers want us to manage, collect and treat in a principled and clear way, pursuing those who are avoiding tax or acting unscrupulously or unethically. We know that that kind of big spend has to be made in a way that avoids the perception or actuality of conflicts of interest. We need strong legislation that protects those big spends of billions of dollars so they actually go where they need to go, they get us value for money and they aren't associated with conflicts of interest or unethical practices.

      This is a really important place where whistleblowers can blow the whistle and make a difference. Whistleblowers have an important impact on the way we govern. They can call out corruption and conflicts of interest, and honest government relies on them. It relies on their heroism and it relies on the sacrifices they personally make. We need to protect them. We need to protect them from bullying and ill treatment, and we need to protect them from all kinds of subtle practices in their workplaces which can deeply affect their lives and make the costs they personally face very large. So we all agree here that whistleblowers are often heroic.

      I thank Senator Scarr for bringing to our attention the sacrifices of and the role that James Shelton and Brian Hood have played in calling out another important example of corrupt practice in our governance. He quoted the words of the judge reflecting on the 'adverse effects' on the families of those men and the 'tremendous courage' that they showed. That shows to all of us the importance of having strong protections in our whistleblower legislation and ending the inappropriate punitive prosecution of people like Richard Boyle and David McBride. We need to support and honour their efforts, and we need to pass legislation that does the right thing by whistleblowers and enables future whistleblowers to come forward and make the positive difference that they can to the quality of a decision that we as a parliament make and the quality of governance in our country.

      11:27 am

      Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

      I thank all senators for their contributions to the debate on this bill, the Public Interest Disclosure Amendment (Review) Bill 2022. This bill amends the PID Act to implement recommendations from the 2016 review of the Public Interest Disclosure Act 2013 and other parliamentary inquiries. These amendments will improve protections for disclosers and witnesses, focus the act on integrity wrongdoing and make the act easier to administer.

      The government has addressed recommendations 1 and 2 of the Senate Legal and Constitutional Affairs Legislation Committee's report in the explanatory memorandum and welcomes its third recommendation that the bill be passed. The government has also moved amendments to make clear that the exclusion of personal work related conduct would not prevent the allocation or investigation of a disclosure which contains both disclosable conduct and personal work related conduct and also moved amendments to require an authorised officer to inform a discloser about other avenues to progress their disclosure where there is no reasonable basis on which it could be considered an internal disclosure.

      The government is aware of calls for a whistleblower protection authority or commission, and I know those calls have been repeated in the second reading debate, and also for external disclosure processes to be examined. The government has already publicly committed to examining these issues as part of a public consultation process on broader reforms to the Public Interest Disclosure Act following passage of this bill.

      The Albanese government is committed to restoring trust and integrity to government, and an effective public sector whistleblowing framework is essential to achieving this. The bill is an important first stage of a process to comprehensively reform the Public Interest Disclosure Act to restore it to a best-practice whistleblowing framework. I commend the bill to the Senate.

      Photo of Dean SmithDean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | | Hansard source

      The question is that the second reading amendment moved by Senator Shoebridge on sheet 1867 be agreed to.