Government agencies want ‘disclosable conduct’ narrowed but whistleblowers and rights groups say laws don’t go far enough

This article is more than 4 years old

This article is more than 4 years old

Australian government agencies have made almost uniform calls to wind back federal whistleblower laws, arguing they are an administrative burden that creates confusion and unnecessary costs.

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In strikingly similar submissions, a swathe of government agencies have all called for changes to the way the public interest disclosure scheme should operate in submissions to a statutory review led by the former integrity commissioner Philip Moss.

The laws were introduced by the Labor government in order to provide an avenue to protect whistleblowers making public interest disclosures. The scheme largely favours internal disclosures by whistleblowers but, in some very narrow circumstances, also permits disclosures to the public or media. There are broad exemptions for intelligence agencies to the operation of the scheme.

The Australian Taxation Office, Australian federal police, Attorney General’s Department, Department of Defence, Department of Immigration and Border Protection and Department of Foreign Affairs and Trade have all called for changes to narrow the definition of “disclosable conduct” under the scheme.

Many of their concerns relate to what is described invariably as “duplication” with existing workplace and anti-corruption processes.

The immigration submission said its experience was that the scheme was operating as a “complaint mechanism” rather than a whistleblowing tool.

“Under the PID Act, any personal grievance by a current or former public official, including dissatisfaction with a response to a complaint made under a different process, is deemed to be a disclosure,” it said.

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“The ‘low bar’ of disclosable conduct means that the PID Act, in its actual operation, replaces and complicates (rather than complements) the existing and established framework for management, performance management and discipline in the APS.”

It claimed that the scheme “disempowers supervisors from listening and responding to staff concerns.”

The federal police wrote in its submission: “It is of serious concern to the AFP that the overlay of PID Act processes and requirements with other oversight and integrity arrangements may actually undermine the objectives of the PID Act and frustrate the resolution of matters”.

The Department of Foreign Affairs and Trade wrote the conduct that could be disclosed would “capture conduct that would ordinarily be dealt with at a lower or managerial level through other routine assessment or investigative processes.”

Many of the agencies who said the act needed to be restricted had received only a handful of disclosures under the scheme.

A small number of agencies, likely to be Australian intelligence agencies, have redacted their submissions entirely.

But other legal groups have argued the laws do not go far enough to protect whistleblowers. The Human Rights Law Centre’s submission said that disclosure conduct should encompass potential human rights abuses and expressed concern for the exemptions relating to intelligence agencies under the act.

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The submissions published also include several from whistleblowers who have experienced first-hand the impacts of the disclosure laws. In stark contract with the government agencies, many of them say the laws do not go far enough to protect them.

The federal MP Andrew Wilkie wrote a submission outlining a series of ways that the current scheme “fails to offer adequate protection for several important classes of whistleblowers”. He said that it was likely many legitimate investigations had been undertaken.

One submission was from John Brown, who worked for an undisclosed government agency. He said he disclosed a breach of a secret law enforcement operation, known as a controlled operation.

“The result of this action was immediate reprisal through exposure of my identity, not only to fellow staff members ... but also to those who the disclosure of conduct was made,” he wrote.

“I believe that doing the right thing, and not turning a blind eye to disclosable conduct that may lead to wrongdoing, is the duty and responsibility of every public official.”



The report is scheduled to be provided to the minister assisting the prime minister for the public service, Michaelia Cash, by July.