The key public service issues to shape 2024

WRITTEN BY John Wilson & Kieran Pender

Attorney-General Mark Dreyfus KC has promised significant changes to ensure whistleblowers are protected. Picture by Sitthixay Ditthavong
Attorney-General Mark Dreyfus KC. Picture by Sitthixay Ditthavong

Last year was a big year for integrity in public life in Australia. We saw the commencement of the National Anti-Corruption Commission, the findings of the robodebt royal commission and initial public sector reforms. The Albanese government has been keeping busy pursuing reforms designed to improve transparency and accountability

But there is much work remaining to be done. One area in particular looms large in 2024 – whistleblowing.

The framework for protecting public sector whistleblowers and ensuring their concerns are addressed – the Public Interest Disclosure Act 2013 (PID Act), and state, territory and private sector equivalents is outdated and no longer fit-for-purpose. Too many Australians are staying silent for fear of the repercussions of blowing the whistle.

Research shows as many as eight in 10 people who raise concerns at work face retaliation.

Robodebt is a salient example – whistleblowers gave evidence of their concerns being ignored and a culture of remaining mute. As the royal commission observed, “the scheme received early and ongoing criticism”, including from whistleblowers, and “each example of criticism, as well as its cumulative impact, presented [the Department] with further opportunities to investigate the concerns raised and react to them, particularly insofar as accuracy and illegality were raised. Those opportunities were not taken up”.

Other examples abound: the PwC scandal; the conduct uncovered by the banking royal commission; the Brereton Report into Australia’s war crimes in Afghanistan; and more. In each instance, some of what we know we only know thanks to courageous whistleblowers.

But the questions still linger: why didn’t whistleblowers speak up earlier, or why weren’t they heard?

We therefore greet the busy reform agenda ahead with optimism. The government, led by Attorney-General Mark Dreyfus KC, have promised significant changes to ensure whistleblowers are protected, not punished. While the devil will be in the detail, the reform agenda offers hope for all public servants the laws and institutions will help cultivate a pro-transparency, speak-up culture.

PID ACT reform

Late last year, the Attorney-General’s Department began consulting on the transformation of whistleblower protections. A discussion paper highlighted a willingness to completely rewrite the PID Act, described by one federal court judge as “technical, obtuse and intractable”, and bring the protections contained in the law up to international best-practice.

Mooted changes including reversing the burden of proof, so that when a whistleblower alleges their agency has retaliated against them, it is up to the agency to prove there was no link between the whistleblowing and the detriment, not vice-versa. Submissions to the inquiry have also called for a positive duty on agencies to protect whistleblowers, with compensation available when that duty is not met, and better access to support – including lawyers, unions and medical professionals.

If the reforms make whistleblower protections practically accessible and workable, that will be very good news for public servants. The PID Act is an important part of the APS ecosystem; its shortcomings to date have had a negative impact on integrity across the public service.

Wider reform agenda

There is more reform on the way. A bill to improve whistleblower protections for tax whistleblowers is currently before Parliament in the wake of the PwC scandal. An ongoing overhaul of Australia’s aged care framework will include stronger whistleblower protections.

And the private sector protections in the Corporations Act, which covers the vast majority of the Australian workforce, are due for a statutory review this year.

One challenge with the current patchwork framework is the inconsistencies, gaps and overlaps between the different regimes. Because the private sector protections were last updated in 2019, whereas the PID Act came into force in 2013 (with only minor changes last year), private sector workers currently have significantly stronger whistleblowing rights. On the other hand, there are some workers not covered at all by any of the schemes, due to gaps in coverage. Other workers (for example, government contractors) might be able to access several schemes. Where those schemes diverge considerably, complexity abounds.

We hope the year ahead will see simplification, harmonisation and an emphasis on consistent, comprehensive coverage.

Whistleblower protection body

New laws are one thing – but a major gap in Australia’s regulatory framework is the lack of an authority to oversee and enforce whistleblower protection laws and provide support and guidance to whistleblowers.

Such an institution was first proposed by a Senate inquiry in the 1990s, and then again by a bipartisan joint parliamentary committee in 2017. Labor took the concept to the 2019 election, but has now reverted to considering whether an authority is needed.

In our view, it most certainly is. The United States have had a public sector-focused whistleblowing authority for decades; in recent years similar bodies have proliferated in Europe, with standout examples in the Netherlands and Slovakia.

The crossbench have taken to calling a whistleblower protection authority “NACC 2.0” – indeed bills for an anti-corruption authority moved by Dr Helen Haines MP and the Greens under the Morrison government contained a whistleblower commissioner.

An independent, well-resourced body to oversee Australia’s whistleblowing frameworks is needed to improve integrity in our democracy. We hope 2024 brings comprehensive reform and a whistleblower protection authority, together supporting the speak-up culture that will prevent future robodebts and ensure whistleblowers’ voices are heard.

For all the good news, though, two blights remain. Former Defence lawyer David McBride, the source of the ABC’s Afghan Files reporting, pleaded guilty to secrecy offences in November; he will be sentenced in mid-March, and faces the prospect of jail time. Richard Boyle, who exposed wrongdoing at the Australian Taxation Office, will go on trial in September.

These cases show the cost of courage facing whistleblowers right now and why the Albanese government should act on whistleblower protections in 2024.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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