ART submission to the Whistleblower Protection Authority Bill Inquiry

Jul 14, 2025

ART Submission to the Inquiry into Whistleblower Protection Authority Bill 2025 (No. 2)


Accountability Round Table  [1] is dedicated to improving government transparency integrity and accountability in Australia, and so approaches this inquiry with a particular focus on how government integrity may be improved. 

Whistleblowing is a service to the community that provides an avenue for revelation of injustices, maladministration, and illegal or unconscionable conduct that damages the lives of the people affected, and hinders good governance. It should be treated as such by formulating laws that support and smooth the path of the delivery of such a service. 

The objective of ‘protection’ on its own is not enough to facilitate good outcomes for wrongs remedied or to produce a reduction in the need for whistleblowing as a last resort to correct maladministration. There must be additional laws and directives recognising that whistleblowing when proven to be correct in exposing wrongdoings, is a positive contribution to the betterment of society.  

Such laws should be integrated within an overall framework of connected oversight processes.  Proactive management action is also needed, beginning with good design of agencies and parliamentary practices, to then monitoring them to ensure they are adhering to standards of good practice. They must expose as much of their practice as possible to the public gaze in order that the public too can monitor their behaviour and delivery of services. Otherwise whistleblower protection is just picking up the pieces.  

We support the introduction of a Whistleblower Protection Authority and believe it will greatly improve the likelihood that public sector wrongdoing will be revealed, thereby making possible the accountability of government for its actions, for the actions of members of Parliament and for the actions of its agencies. 

We have previously expressed our support for the creation of such an authority. 

The Public Interest Disclosure Amendment (Review) Bill 2022 was amended in two tranches through the Attorney General’s office.  In our 2024 submission to the second tranche of the review of the PID Act,[2] we argued that: 

“We support the creation of an independent, statutory, over-arching ‘Whistleblower Protection Authority’ with the statutory duty to act as a clearing-house for managing …‘public interest disclosures’ made pursuant to the Act. 

We also support a “No wrong doors” approach as both of these initiatives will act to support a freer flow of informed and supported disclosure of possible or suspected wrongdoing. 

For the same reasons we also support the suggestions made in the Consultation Paper to better protect whistleblowers from reprisal (whether or not their allegations are vindicated).”

We note that the Attorney General also intended to conduct consultations on the creation of a Whistleblower Protection Authority in 2023 [3] and this consultation was carried out in Stage 2 of the reforms to the PID Act 2022.

The feedback from the consultation [4] noted that “Key issues raised in the consultation included:

  • Whistleblower protections, including: 
    • support for a new body to protect whistleblowers
    • expanding the circumstances in which external disclosures are protected under the PID Act
    • allowing people to access additional types of professional support and assistance in relation their disclosure
    • easier access to civil remedies as well as more types of civil remedies, particularly in relation to any failures by an agency to fulfil its duty to protect whistleblowers from reprisal.
  • Simplification or redrafting of the PID Act, including: 
    • making the legislation easier to understand and navigate for whistleblowers
    • increasing consistency between the whistleblower protection frameworks that apply to public, private and not-for-profit sectors.
  • Support for a ‘no wrong doors’ approach, including: 
    • increasing the types of officials within agencies who can receive protected disclosures
    • improving referral processes to ensure disclosures can be, and are, passed to an appropriate agency for consideration.”

All of these are objectives which ART supports. 

Support for the Bill

ART commends the Whistleblower Protection Authority Bill 2025 (No. 2) for the following reasons.  

1. A Whistleblower Authority will clearly assist the receiving of disclosures of wrongdoing by alleviating the multi stage process for elevating such revelations through several layers of bureaucracy.  

2. It is commendable that the Bill goes beyond furnishing whistle blower protection alone and introduces extra support measures for the activity of whistleblowing by facilitating the investigation of whistleblower disclosures and providing advice, assistance, guidance and support to persons and agencies relating to the making of whistleblower disclosures. 

3. It is a valuable initiative to introduce into the Bill, provisions which would allow the Commissioner to deal with whistleblower protection issues on his or her own initiative. 

4. The Bill reduces the restrictions on who might be a whistleblower  – restrictions which had the effect of requiring the whistleblower to prove that they had reasonable grounds to suppose that they were disclosing “disclosable conduct” This is achieved by allowing the Commissioner to “receive disclosures of wrongdoing from any person” [5]  In addition Part 3 Division 1 Section 16 (2) makes it clear that anyone may “make the disclosure or request, or provide the information on behalf of –  another person; a Commonwealth agency; or a body or association of persons“.  This helps to action the principle of “no wrong doors”. 

It additionally reduces the burden of proof placed on the whistle blower to demonstrate that the allegation is true, before it is elevated further, by conferring powers on the Commissioner ” to assess and, where appropriate, refer disclosures of wrongdoing to appropriate Commonwealth agencies, other government agencies, or other bodies, with functions and powers to deal with those disclosures” [6] .

5. It usefully assists the wider project of creating a climate of legitimacy and normalcy for making whistleblowing disclosures by endowing the Commissioner with the powers to refer information about a disclosure to another government agency, and accompanying that power with the power to; 

(a) monitor the way in which the agency investigates or deals with the disclosure or information; and

(b) provide advice, guidance or assistance to the person who made the disclosure or provided the information, or any related person; and

(c) provide advice, guidance or assistance to the agency or any other person with respect to the way in which the agency investigates or deals with the disclosure or information.

thus ensuring that whistleblower protection responsibilities are fulfilled. The flow on effect is to increase knowledge of whistleblower issues and how to both manage them correctly and reduce the incidence of occasions of wrongdoing warranting them. 

6. Attention has been paid to making the new authority part of a wider system of integrity by closely linking its work with that of other independent commissions and other agencies.  

This has been facilitated by the aforementioned capacity of the Authority to receive disclosures from anyone, and to refer information about a disclosure to another government agency and to monitor the way in which the agency investigates or deals with the disclosure or information. 

In general the Commissioner has the power “to provide advice, assistance, guidance and support to any public official, Commonwealth agency or other person on rights, obligations and processes relating to the making of disclosures of wrongdoing as defined by this Act.” 

It is to be hoped that this general authority extends to enabling the Commissioner to reflect on and provide advice to government and to agencies about how well they have collectively created a barrier to wrongdoing.

Suggestions and recommendations

1. Missing whistleblower protections 

1. Part 3 division 2 subdivision A 23 (2) c should be amended to require the consent of the whistleblower before there can be a referral of the subject matter of the disclosure to the head of the department or agency that is the subject of the complaint.  This is an addition needed to “the rights and obligations of any person who makes or provides information in relation to the disclosure of wrongdoing or raises the whistleblower protection issue.”

We could see no provision for seeking the consent of the whistleblower or their approval before the Authority Commissioner can  advise their department or agency head of their complaint.  While the Commissioner may oversee or manage what the Dept or agency does, the ability to make such a referral without consent seems to contradict the fundamental purpose of whistle blower protection.

2. Dealing with confidentiality provisions in other Acts

We see nothing in the Bill that deals with the confidentiality provisions that exist in other Acts that would or may prevent information held or gathered from other independent oversight bodies being passed to the Authority Commissioner. 

This potential problem should be dealt with in the Bill so that confidentiality for the whistle blower can be consistent.

3. Purpose of the Bill –  the intrinsic value of whistle blowing beyond protection of the whistle blower. 

The purpose of the Bill should be to entrench whistleblowing as a public good.  The consequent reduction of the need for it, due to a low frequency of cases as facilitated by the actions of a well provisioned Commissioner, is another public good. 

Whistle blowers should most certainly be protected from being understood as trouble makers or politically motivated spoilers, and all the consequences to them that might arise from this perception, but ultimately, what should be protected is the public good that results from their actions. 

As noted by Howard Whitton in his January 2024 submission to the Attorney Generals consultation on stage 2 of the PID Act; 

“The primary objective of Whistleblower Protection measures is not the protection of whistleblowers. 

‘Protection from retaliation’ is a crucial part of a strategy for encouraging disclosures of corrupt conduct or other ‘wrongdoing’: it is not an end in itself.” 

The Bill should have this aim at the centre of its considerations, and perhaps should be renamed as a consequence. 

4. Burden of proof to be removed from the whistle blower. 

The assessment powers of the Commissioner to determine the veracity and importance of the disclosure should supplant the need for a whistle blower to make any moral or legal judgements about the merit of disclosures before making them.  

The powers and reasons in the Bill however, for the Commissioner to decide on the value of a disclosure, appear to mainly occur in relation to the Commissioner taking no action. 

Part 3 Division 2 Subdivision B s 25(7) allows the Commissioner to take no further action if he or she is satisfied that:

(a) the whistleblower protection issue is already being, or will be, investigated by another government agency; or

(b) the referral of the allegation, or information, that raises the whistleblower protection issue is frivolous or vexatious; or

(c) the whistleblower protection issue has been, is or will be, the subject of proceedings before a court or an application to an industrial, civil or administrative body; or

(d) investigation of the whistleblower protection issue is not warranted having regard to all the circumstances.

Paragraph (a) should be linked to other provisions in the Bill Part 2 Division 1 section 10 1 (e) allowing the Commissioner to monitor, provide advice or assistance to other bodies on whistleblower protection issues. (But see also heading 6 of this submission for problems with linking to other Acts.) 

Paragraph (c) is further discussed in this submission under heading 8 below. 

The rationale for the Commissioner to decide to take no action in (b) and (d) or on any other basis is deficient in guidance on merit. 

Paragraphs (b) and (d) assume that the criteria for rejection of a complaint or information on the basis that the allegation or information is ‘ frivolous or vexatious’; or ‘not warranted having regard to all the circumstances’ is self evident. 

We suggest instead that the overarching proof of the merit of a disclosure should be its truth and efficacy. These should be required to be considered prior to rejection of any allegation or information or any other judgment about its merit.  

Two tests should apply. 

There is a simple first test for acceptance of a report. It does not matter what the disclosers motivations might be. What matters is if the revelation is, or could be true. 

The second test is an efficacy test of whether or not the information is potentially useful to improving standards or addressing wrongdoings, and to what extent.  This second test serves to eliminate trivial reports. 

The triaging of what is a disclosure that has merit needs to be in the hands of those who are fully equipped to determine the consequences of not acting on it, and who can take responsibility for mistakes in the judgement of this. 

5. Obligation to continue to protect a whistleblower even if that person’s allegation is not vindicated 

Even if the allegations of a whistleblower are not vindicated, that whistle blower should remain protected under the Whistleblower Protection Authority’s obligation to protect whistleblowers from reprisal. The perils of whistleblowing are not confined to successful whistleblowing. 

Reprisal can arise from the revelation by anyone that an attempt was made by that person (or persons) to make a disclosure, whether or not the disclosure was accepted by the Authority.

6 Powers to hold a public inquiry. 

Part 3 Division 4 (34) Manner and powers of investigation (2) sets out that;

“Parts 7, 8 and 9 of the National Anti-Corruption Commission Act 2022 applies to an investigation or public inquiry by the Commissioner as if a reference to the Commissioner were a reference to the Whistleblower Protection Commissioner, and a reference to a corruption issue were a reference to a whistleblower protection issue.”

This provision exposes the Commissioner to the short comings in the NACC Act namely;

5.1 The NACC Act unnecessarily confines the holding of public hearings 

(a) The common feature underlying the content of wrongdoing disclosures will be that it has been motivated by an improper purpose which does not serve the public interest. The Commissioner should be free to investigate all forms of such misconduct. 

(b) The NACC Act includes the requirement that there be ‘exceptional’ circumstances in order to hold a public hearing. The NACC Act should not confine public hearings of the Whistleblower Authority to whistleblower protection issues.

It must be recognised that public hearings serve the public good.

Public hearings make it difficult for entities or persons of interest to misrepresent the gravity of evidence and findings. 

They increase public trust in the integrity institution, identify and encourage the need for reforms in the institutions the subject of the inquiry, educate the public sector and community.

Investigations are made more effective by encouraging witnesses to come forward, deter others from engaging in corruption, improve the integrity of the public sector and expose the Authority to greater accountability to the public in its fair treatment of witnesses and persons of interest.

5.2 The NACC Act has a cumbersome method of providing a response to potential adverse findings against a person of interest

(c) The Act has a faulty procedure which requires the Commission to provide those who are the subject of any potential adverse comments, with a draft of what the Commissioner intends to find and allow them  the opportunity to respond. Experience has shown that such a procedure enables persons of interest to dispute the draft findings and litigate the findings in the draft report with the consequence that the report is not published until the litigation is finalised.

It encourages litigation and protracted delay before a report can be published. 

The NACC Act should provide that where there has been a hearing, whether private or public, the potential for adverse comment should be drawn to the attention of the person of interest by counsel assisting the Commissioner and they should have the opportunity to then respond by submission.

Thereafter the Commissioner may write their report without further recourse to the person of interest. This is the traditional natural justice process followed in all Courts of Law, Royal Commissions and most inquisitorial tribunals. 

7. Simpler and clearer provisions for dealings with other integrity bodies 

It should also be noted that the provisions in the Bill dealing with the Commissioner’s interaction with the other Integrity bodies like the APS, NACC, Ombudsman, ANAO and others, in consulting and passing information, are complex and as they are presently drafted, give rise to ambiguity.

Attention to clearer drafting is needed.  

8. Removal of perverse incentive for wrong doer to take pre-emptive legal action 

Part 3 Division 2 Subdivision B s 25(7)(c) allows the Commissioner to decide not to take action if the issue is or will be before a court. That is an invitation for the wrong doer to commence some proceeding that will delay or impede the future investigations of the Commissioner. 

This loophole that allows a wrongdoer to impede the work of the Authority should be removed. 

9. Powers to initiate an investigation into circumstances where allegations of wrongdoing point to entrenched systematic problems. 

It appears that that public inquiries can only be held with respect to  – ‘reprisal, detrimental action’ or other matters directly related to protection of a whistle blower. 

There are no apparent provisions to allow other types of investigation.  However there may be other matters that impact on the effective management of whistleblowing that warrant other types of inquiry. 

The provisions to allow the Commissioner to deal with whistleblower protection issues on his or her own initiative are, in this draft of the Bill, triggered by “an allegation, or information that raises another whistleblower protection issue“.  

Other triggers should be allowed as well, including that in the judgement of the Commissioner, a pattern in wrongdoing generally, is becoming apparent over several disclosures, or a particular agency or service has a bad track record in producing wrongdoings. 

Ultimately the latter would likely best be dealt with by another oversight organisation, but an investigation by the Authority Commissioner into faults not related to a specific incident can be a way to initially uncover systemic problems.  

10. Powers to initiate an investigation into improving the role of the Authority

The Bill should grant complete powers to the Authority to call an inquiry for any or all of the purposes of:

  • an investigation, 
  • its own self improvement, 
  • to facilitate the education of the public sector and the community about the detrimental effects of the various forms of wrongdoing which damage the public trust  
  • to improve the capacity of the public sector to prevent corrupt conduct

11. The education role of the Authority 

The education role of the authority should be broadened beyond advice to would be whistleblowers and to agencies. 

Some independent oversight bodies in Australia are empowered beyond conducting specific investigations, to also carry out prevention and education functions pertaining to their area of oversight. 

The Bill at present does not grant such a broad remit to the Authority, but it would be improved by doing so. 

12 Publication of findings of inquiries 

Part 3 Division 4 Section 34 Manner and powers of investigation sets out that the Commissioner is able to investigate or conduct a public inquiry in relation to a whistleblower protection issue.

An addition to this section should be made allowing the findings of the inquiry to be made public where the subject under inquiry is not a matter of security or other embargo on publication in another Act. It is in the public interest for such information to be made public and has the effect of educating the public on ethical behaviour. 

Even should the subject of  the inquiry not be open to the public, if recommendations of the inquiry generally may apply to the practice of whistle blowing as a whole or where they would improve the performance of the Authority or other commissions involved in the process, these recommendations should be published. 

It is in the public interest that it is known what recommendations the Whistleblower Protection Authority has made to such public bodies, as this would facilitate and advance the prevention and education functions that should also be required of the Authority. 

13.An integrated integrity system 

A Whistleblower Protection Authority should be introduced in a way that recognises and responds to the fact that it is part of what should be an integrated integrity system in Australia. 

An integrated integrity system across government means that channels of communication can be opened, and standards can be designed so that they don’t conflict.

An integrity system goes beyond integrated infrastructure however. It also necessitates a set of overarching principles that apply equally to all organisations operating within the system

One such principle is the “right to know “principle which puts the onus on government to reveal everything except for matters which have been specifically excluded from the public gaze. To take this approach means that whistle blowers by right should reveal what they think to be wrongdoing. 

A “Right to Information” approach [7] reverses the onus of proof from the present situation where, the whistleblower demonstrates that a disclosure has merit and the discloser is a proper person to make it. Instead an agency must justify why the allegation should not be investigated 

APPENDIX 1

Public trust and ministerial responsibility

The Ministerial Code of Conduct adopted by the Albanese government in June 2022 [8] states that public office is a public trust.  The principles of ‘the public trust’ entail upon the government a duty which flows from the fact that the people have entrusted the ministers and members of parliament with power to act on their behalf and in their interest. As a result, they have an obligation, at all times, to act honestly and in the interests of the people, and to give priority to those interests over their own.

The 2022 Ministerial Code of Conduct also requires that Ministers ensure that they act with integrity; observe fairnessin making official decisions; must accept they are accountable for the exercise of the powers and functions of their office;  and that Ministers must accept the full implications of the principle of ministerial responsibility.  They will be required to answer for the consequences of their decisions and actions

As a consequence of this primary duty, it is incumbent on government;

(1) To treat any information developed with the people’s money and the power they have delegated to government as the property of the people.

(2) To deliver any service to the people as primarily designed to benefit them and not the interests of a third party or any other interest, including the political interest of the government in getting re-elected.

(3) To ensure that it acts with fiduciary duty to manage finances and internal and external exchanges of money in the service of the benefit of the people as a whole and not to favour sectional interests including its own.   

All of these consequences of the duty to act in the public trust imposes an obligation to use the most effective means of rapidly identifying where wrongdoing occurs or is likely to occur, be it malfeasance, misconduct, or “grey corruption”, in the interests of protecting the right of people represented by government to have their collective interest properly met.   

Ministerial responsibility in particular requires that Ministers know about the actions of the agencies of which they are in charge. 

Maximising opportunities to find out about any form of wrongdoing in the public service as broadly defined, is an overriding requirement of effectively protecting the public trust. 

Establishing a well designed Whistleblower Protection Authority, especially one which is well connected to the rest of the commonwealth integrity system will go a long way to meeting these principles. 

[1] Accountability Round Table website https://www.accountabilityrt.org/

[2] https://consultations.ag.gov.au/integrity/pswr-stage2/consultation/view_respondent?uuId=290453942

[3] Commonwealth Parliament Australia. ‘Public Interest Disclosure Amendment (Review) Bill 2022’. Canberra ACT: Parliament of Australia Parliamentary Library, 13 February 2023. Australia. https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd058.

[4] Attorney General’s Department, Australian Government. ‘Public Sector Whistleblowing Stage 2 Reforms  – Feedback on Consultation’. Attorney-General’s Department – Citizen Space. Canberra ACT: Parliament of Australia Attorney-General’s Department, 26 April 2024. https://consultations.ag.gov.au/integrity/pswr-stage2/

[5] PART 2 Division 1 Section 10 (b) 

[6] PART 2 Division 1 Section 10 (d)

[7] Queensland Government. Right to Information Act 2009 (2009). 

https://www.legislation.qld.gov.au/view/html/inforce/current/act-2009-013.

[8] Commonwealth Parliament Australia. ‘Public Interest Disclosure Amendment (Review) Bill 2022’. Canberra ACT: Parliament of Australia Parliamentary Library, 13 February 2023. Australia. https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd058.

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