Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Link to this | Hansard source

R () (): The coalition supports this bill. This bill, the Public Interest Disclosure Amendment (Review) Bill 2022, 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 2017 inquiry by the Parliamentary Joint Committee on Corporations and Financial Services into whistleblower protections in the corporate, public and not-for-profit sectors, and 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. I sat on the PJCIS at that time and support the recommendations of the press freedom review being implemented here, as I do the other recommendations implemented by the bill. All of these recommendations have been agreed to by the coalition, and we welcome these changes.

This bill deals with the Commonwealth government's whistleblower protection and disclosure regime. It is an accountability mechanism. It's important that accountability measures achieve what they're intended to achieve and that they avoid the unintended consequences that can result in a bill's doing more harm than good. This has always been the contention of those on this side of the House when considering this legislation. That's why we're very much in support of making improvements to the Public Interest Disclosure Act, in line with the recommendations of the Moss review and the other reviews, which are enacted by this bill.

The Public Interest Disclosure Act was a creation of the Rudd-Gillard government at the very end of its term. The member for Isaacs was Attorney-General at that time, as he is now, and he brought forward the bill just as the parliament was about to expire. There was perhaps inadequate consideration given to the bill at the time of its enactment. At the time, the coalition welcomed and supported the transparency measures. Through the committee process, the coalition helped improve the bill substantially. Seventy-three amendments to tighten and focus the act were supported by the coalition. Also key to those amendments was a requirement that the act be reviewed to gauge its impact. I'm very pleased that we pushed for that statutory requirement for a review, and that is 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 operates to give appropriate protection to whistleblowers in the public sector and, in doing so, to build the public's confidence in the public sector. 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. Let me quote from the Moss review:

The experience of whistleblowers under the PID Act is not a happy one. Few individuals who had made PIDs—

public interest disclosures—

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 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:

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 its purpose.

This bill is an attempt to correct some of the act's shortcomings. In particular, it will 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 protection from reprisals to witnesses and those who may have made, propose to or could make a disclosure, and it will improve information sharing between agencies.

It's 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. It is worth revisiting the coalition's position on some key issues at that time. 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.

What we've seen in the Moss review is that the definition still remains too broad. While policy disagreements were rightly excluded by the coalition, employment grievances have clogged up the work of agencies and were never the purpose of the act. Agencies must not ignore issues relating to workplace grievances or conflict. Those matters must be addressed. But the frameworks established by the PID Act are not designed for dealing with those matters and should instead be focused on matters relating to wrongdoing, such as serious misconduct or fraud. Workplace grievances should be resolved through other processes.

Finally, the bill makes changes to the National Anti-Corruption Commission to align the definition of 'reprisals' and 'detriment' with the definitions that will be in the Public Interest Disclosure Act. These are material mechanical improvements to the operation of an important transparency mechanism and the coalition supports them.

In conclusion, we believe that whistleblowers and witnesses must be able to make disclosures without fear of recrimination, but equally schemes should not be open to abuse by those who would seek to cause mischief or achieve political or industrial outcomes through inappropriate disclosure. Getting the balance right on this legislation is essential. We welcome these adjustments that correct some of the past flaws in the hope that those who make disclosures are genuinely protected and that serious matters of misconduct are investigated by agencies.

Debate adjourned.