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FOR – Bills — Public Interest Disclosure Amendment (Review) Bill 2022; Second Reading

Michaelia Cash

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.

Long debate text truncated.


Date and time: 11:33 AM on 2023-05-10
Senator Pocock's vote: Aye
Total number of "aye" votes: 12
Total number of "no" votes: 27
Total number of abstentions: 37
Related bill: Public Interest Disclosure Amendment (Review) Bill 2022

Adapted from information made available by