Whistleblower protection authority shot down by Senate committee

In February of this year, the crossbench put forward a bill to establish an independent whistleblower protection authority to oversee and enforce whistleblower protections, as well as facilitate public interest disclosures.

Independent senators argued that the bill was necessary to fix Australia’s “broken” whistleblower protection laws, which had left numerous whistleblowers facing lengthy legal battles and the prospect of prison sentences following their disclosures.

Last Friday (29 August), the Legal and Constitutional Affairs Legislation Committee recommended that the Senate should not pass the bill. The eight-person committee included three Labor senators, two Liberal senators, one Greens senator and two independents.

The vote came just a day after ATO whistleblower Richard Boyle’s legal ordeal came to an end, eight years after he first spoke out about overly aggressive debt collection tactics employed by the ATO.

Labor and Coalition senators opposed the bill, raising concerns regarding its duplication of existing regulatory and oversight bodies, conflicts of interest and a lack of protections for whistleblowers from liability.

In a submission, the Australian Human Rights Commission (AHRC) noted that the broad range of functions proposed by the bill could raise conflicts of interest. The Commonwealth Ombudsman added that the bill did not appear to offer whistleblowers immunity from disclosure-related liabilities, which could discourage disclosures.

Independent senator David Pocock, who was part of the committee and a sponsor of the bill, wrote in dissent of the majority decision.

“Australians are rightly angry at the treatment of whistleblowers. They see the injustice, retaliation, and silence. And they ask the obvious question: where is the body that protects the people who protect the public?” Pocock wrote.

“If the government is serious about integrity, about accountability, and about restoring public trust, then it must support the establishment of a whistleblower protection authority.”

Greens senator David Shoebridge also wrote in dissent, calling for further reform to whistleblower protection laws.

“The proposed Whistleblower Commission represents an important step forward that we strongly support. However, the Commission can only be truly effective if it operates within a legal framework that actually protects whistleblowers rather than exposing them to prosecution and retaliation,” Shoebridge wrote.

“It's disappointing to see a Labor dominated committee failing to embrace reform.”

Pocock said that ATO whistleblower Richard Boyle’s case exemplified the inadequacies of Australia’s whistleblower protection laws.

“Yesterday, Australian Taxation Office (ATO) whistleblower Richard Boyle – whose courageous whistleblowing led to reform to tax practices at the ATO – was sentenced by the District Court in Adelaide, following an eight-year saga,” Pocock wrote.

“His case underscores the failings of Australia's current whistleblowing regime, and the very real human toll of those shortcomings.”

Numerous whistleblowers informed the Senate committee of their experiences. One told the committee that “the decision to speak up is a profoundly lonely, terrifying and isolating ordeal.”

Jeannie-marie Blake, who blew the whistle on the robodebt scheme, said she had paid a “high price” for her public interest disclosure.

“I blew the whistle on robodebt. I experienced firsthand the absence of support for whistleblowers and that's why I'm firm in my belief that we need whistleblower reform, now including the establishment of a whistleblower protection authority,” Blake said.

“Society benefits when whistleblowers speak up. Ultimately, robodebt was stopped, but we're left here on a scrapheap, paying the high price for our sacrifice—a sacrifice that I made in the public's best interest.”

Sharon Kelsey, who made a public interest disclosure in 2017 alleging potential misconduct from a Queensland council mayor, also wrote in support of stronger whistleblower protections.

“What is evident is that my PID [public interest disclosure] offered me little to no real protection as a whistleblower. There was no agency with the adequate function and powers to protect or support me,” Kelsey wrote.

“I was alone, left with only my finite resources. This meant I had to personally fund a protracted, complex and arduous legal process in an attempt to assert my rights.”

In a submission to the committee, the Human Rights Law Council (HRLC) noted that the current whistleblower framework was “complex and fragmented.”

“[Fragmentation] is bad for whistleblowers who may have to navigate multiple contradictory disclosure regimes, bad for businesses and government bodies that are often subject to overlapping compliance and reporting obligations, and bad for regulators which face limitations to their investigatory and enforcement oversight,” the HRLC wrote in a submission.

In April 2024, PwC tax leaks scandal whistleblower Anthony Watson urged the Senate to consider establishing an independent whistleblower authority following his experience with the Australian legal system.

“I commenced my case against PwC and Lendlease in April 2022. Here we are, two years later, and we’ve spent millions of dollars on just one thing, which is: which set of whistleblower rules applies?” Watson said.

The HRLC argued that the establishment of a whistleblower protection authority could help coordinate and harmonise the currently fragmented approach to protecting whistleblowers.

“There are currently nine different federal whistleblowing laws. This bill sits on top and interacts with them,” Kieran Pender, associate legal director at the HRLC, said.

“In an ideal world, we would get the establishment of a federal whistleblower protection authority alongside reform to those laws, and harmonisation and consistency.”

The bill remains before the Senate. While the committee’s recommendation against establishing a whistleblower protection authority is not binding, it is expected to influence debate.