Whistle while you work – predictions for Australia’s whistleblowing and anti-corruption reform

This article was originally published 30 March 2022 and updated on 20 April 2022.

With major parties agreeing more must be done to tackle corruption, differences remain on how to usher in change.

In recent years, whistle-blower protection has featured prominently in the debate over a new national integrity commission rather than in relation to changes to the existing legislative provisions. In the wake of the public inquiry into former NSW Premier Gladys Berejiklian by the NSW Independent Commission Against Corruption, the creation of a national anti-corruption watchdog is shaping up to be an important issue for the upcoming 2022 federal election and with that, the introduction of further protections for individuals who blow the whistle on suspected corruption. While the Coalition and the ALP have both expressed an intention to establish a “federal ICAC”, there is considerable divergence as to the terms upon which their respective commissions would ultimately operate.

Both major parties went to the polls in the lead up to the 2019 federal election promising to establish an integrity commission that would investigate corruption issues at a national level within 12 months of taking office. However, despite winning government, this deadline was not ultimately met by the Coalition, and it recently conceded that it would not bring the issue back before parliament before the election this year (citing a lack of bipartisan support for its model).

So, what developments can we expect in the whistleblowing space from the major political parties in the lead up to – and following – this year’s federal election?

Introduction of a national integrity commission has been on the Coalition’s agenda for some time. The Coalition first circulated its draft legislation to create a “Commonwealth Integrity Commission” (CIC) in November 2020 for public consultation, with that process concluding in February 2021. The CIC is proposed to contain two divisions, the Public Sector Integrity Division (which would have jurisdiction over the majority of the public sector, parliamentarians, and the higher education sector) and the Law Enforcement Integrity Division (which would have jurisdiction over federal law enforcement agencies).

While members of the Coalition have asserted that the CIC would have powers “well in excess of a royal commission”, the Government’s model has been criticised by the ALP, minor parties, and various interest groups as not going far enough to address and prevent corruption. Some of the main criticisms that have been levelled at the CIC include that it:

• will have a limited ability to launch its own investigations into corrupt conduct in the public sector;
• does not have jurisdiction over persons who are not members of the public sector but who nonetheless dishonestly or improperly influence its decision-making;
• cannot investigate public sector corruption that falls short of a criminal offence;
• will not be able to hold public hearings in relation to allegations of public sector corruption; and
• will not have the power to make findings of corrupt conduct, instead being limited to referring matters to the police or prosecutors.

Notably, the Coalition’s proposed legislation is silent with respect to additional protections for whistle-blowers in the context of the CIC or in the corporate and not-for-profit sectors. However, a proposal for amendments to the Public Interest Disclosure Act 2013 (Cth) was announced by the Coalition in late 2021 and as such, further developments in the whistle-blower protection space may be still to come.

In contrast, whistleblowing appears to be more front of mind for the ALP in its election agenda. Included in the ALP’s 2021 National Platform was a proposal to implement whistle-blower protections for migrant workers who provide evidence of exploitation,¹ improved whistle-blower protections for the public sector (including the extension of protections to contractors and service providers who provide services in relation to Australian Government run immigration detention facilities)² and the introduction of further protections for the private sector.³

In relation to government corruption and accountability, whilst the ALP has not yet released its own legislation for the consideration of the voters, it has promised to give priority to establishing a “National Anti-Corruption Commission” (NACC) if it wins the upcoming election. The information disclosed by the ALP to date suggests that the NACC will have broad powers and address many of the criticisms of the CIC set out above, for example:

• the proposed NACC will have broad jurisdiction to investigate Commonwealth ministers, public servants, statutory office holders, government agencies, parliamentarians, and personal staff of politicians;
• it will carry out its functions independently of government, and be overseen by a statutory bipartisan Joint Standing Committee of the Parliament, empowered to require the Commission to provide information about its work;
• it will have the power to investigate allegations of serious and systemic corruption that occurred before or after its establishment; and
• have the power to hold public hearings where the Commission determines it is in the public interest to do so.

What the ALP’s model ultimately looks like remains to be seen, however, if successful at the federal election we anticipate that the ALP will move quickly in this space.

It is important to note that it is not only the major political parties that are pushing the whistleblowing and anti-corruption agenda. In the midst of this debate, Independent Member Helen Haines in October 2021 introduced a private members bill to establish an “Australian Federal Integrity Commission” (AFIC) with powers far in excess of the CIC (an identical bill was also introduced by Independent Senator Rex Patrick). However, the bill was blocked in parliament and ultimately unsuccessful. While the ALP has previously indicated that it does not agree with Haines’ exact model, it is reasonably likely that the NACC proposed by the ALP would be closer to Haines’ AFIC than the Coalition’s CIC.

A notable feature of the proposed AFIC includes the creation of a “Whistleblower Protection Commission” that would have the power to:

• recommend the payment of compensation or giving of a reward or other remedies to a person, including payment of legal and other costs; and
• provide “practical support” to certain whistle-blowers in the form of payments for non-legal costs, services, living support or a reward.

The scope of the term “reward” is not made clear in Haines’ proposed legislation, but the ALP has previously proposed the introduction of a whistle-blower rewards scheme (akin to the whistle-blower bounty program that operates in the United States) that would reward those who made disclosures to eligible bodies. Such a scheme does not appear to be part of the ALP’s current election platform, but there remains a chance that it would be introduced if the ALP is elected.

It is clear that, regardless of the result of this year’s federal election, a national anti-corruption commission will be introduced in the near future. What that commission will look like - and importantly, the extent of its powers - will vary considerably depending on which major party is successful at the election and whether bipartisan support can be established. However, one thing that appears certain is that with the introduction of any national commission will come a number of additional protections for whistle-blowers in the public sector and likely the private sector also. We will continue to monitor for any further developments in this space in the lead up to the election.