Transparency International, the Human Rights Law Centre and Griffith University have released a joint report outlining ten design principles to inform the establishment of a (proposed) new, Whistleblower Protection Authority (WPA). Here are our key takeaways.

What is the proposed WPA?

The WPA would be a new, independent statutory agency or office tasked with enforcing and monitoring compliance with the Commonwealth whistleblower laws. Importantly, the WPA would also help ensure whistleblowers receive the support they need to come forward – a 'gap' in the current regime.

This idea, is not new – the report flags that it was first recommended in 1994 by the Senate Select Committee on Public Interest Whistleblowing and subsequently by the 2017 Parliamentary Joint Committee on Corporations and Financial Services, into federal whistleblower protections which recommended that ‘a one-stop shop Whistleblower Protection Authority be established to cover both the public and private sectors.’

Why do we need a WPA?

The chief rationale given in the report for the establishment of a WPA is the need to provide effective central oversight of the existing Commonwealth regime, and to help address known weaknesses including the current barriers to whistleblowers coming forward/being protected from reprisals if/when they do.

On this, the report comments:

'We know there is a general problem with the inaccessibility of current legal protections for whistleblowers – in terms of time, cost, and legal expertise needed to secure remedies if or when a whistleblower suffers from a lack of support or from unfair treatment, for having done the right thing and raised their concerns about wrongdoing'.

More particularly, it's submitted that a WPA could improve the effectiveness of the existing regime by plugging various 'gaps' in regulatory oversight that contribute to the weaknesses flagged above. For example it's proposed that the WPA would be able to provide prospective whistleblowers with access to free legal advice/other support – which is not available currently.

The various 'gaps' in current regulatory oversight which the report suggests the proposed new WPA would help to address are summarised in Figure 1 at p14 of the Report.

It's further suggested that the proposed WPA would play a vital role in ensuring the effectiveness of future, planned whistleblower reforms. The report opines that:

'A wide range of federal whistleblowing reform across the public, private and non-profit sectors is anticipated in the immediate months and years ahead. Without a whistleblower protection authority, these reforms will be incomplete – but by taking this critical step to ensure these laws work in practice, not just on paper, we can make sure the previously unfulfilled democratic promise of all our federal whistleblowing laws finally becomes a reality'.

Finally, it's submitted that there is already 'strong consensus' on the need for a central oversight body – as evidenced by recommendations for the establishment of such a body going back to 1994 – as well as a need for Australia to 'catch up' with other jurisdictions when it comes to whistleblower protections.

What would the WPA look like and what would it do? 10 proposed design principles

As a basis for discussion on what the new WPA should look like, the report puts forward the following ten draft design principles.

1 The WPA should have a 'pro-protection purpose': It's submitted that the WPA should be a Commonwealth statutory agency which would have three main areas of focus. To:

• 'enforce public interest whistleblower protections in federal laws [it would not enforce State laws]
• provide support, information and assistance to current, former, and prospective public interest whistleblowers, as well as general assistance to organisations
• investigate, and ensure remedies in response to, alleged detrimental treatment of whistleblowers, and d. support other federal integrity and regulatory agencies, and relevant state-based authorities, in the receipt, assessment, referral and response to whistleblowing disclosures'

On the first point, while it's not proposed that the WPA would enforce State laws, it is submitted that the new body would nevertheless

'provide an important new precedent to help inform the strengthening of State institutional arrangements. A federal whistleblower protection authority could also play a significant role in cooperating with State bodies in the future to foster nationally consistent support and guidance, or even provide support to state and territory whistleblowers under intergovernmental agreements'.

2 The WPA should provide support to prospective whistleblowers: It's envisaged that the WPA should:

'provide information and advice to prospective whistleblowers, and case worker-style advice and support to actual whistleblowers, on both legal and non-legal aspects of whistleblowing – including referrals to and funding for relevant legal, career, health and other personal support services'.

3 The WPA should have a role in preventing adverse outcomes: It's suggested that the WPA should help prevent adverse outcomes for public interest whistleblowers and their organisations in three key ways:

• 'support and leadership of a ‘no wrong doors’ intake and referral approach among integrity and regulatory agencies and organisations, including secure information channels for ongoing communication with whistleblowers
• monitoring powers in relation to handling of referred cases, helping ensure agencies and organisations fulfil their positive duties to support and protect whistleblowers
• provision of general information, guidance and training on best practice whistleblower support and protection approaches for agencies and organisations, along with relevant continuing professional development for legal practitioners and tribunal members'.

4 The WPA should have a 'remedies focus': Ensuring 'remedial action in response to prima facie cases of detrimental treatment of whistleblowers' is proposed to be the WPA's 'central responsibility'. It's submitted that the WPA's powers should include the following:

• 'preventative action (e.g. injunctions) in relation to anticipated detrimental acts, omissions, failures to support, or agency non-compliance with disclosure-handling obligations
• investigation, reporting, recommendations and enforcement action in respect of past detrimental treatment, including but not limited to direct or knowing reprisal'.

On this last point, the report clarifies that:

'The WPA would not investigate primary allegations of wrongdoing, except to the extent necessary to assess and/or refer cases for response or action by other agencies, or ensure appropriate investigations occur and that disclosures are resolved'.

Importantly, it's proposed that the WPA should be empowered to act either 'in response to complaints, referrals, monitoring or on its own initiative'.

5 The WPA should have 'power to conduct early intervention' in the form of conciliation or mediation of alleged or 'apparent' detrimental treatment of whistleblowers and to recommend 

'informal and administrative remedies to resolve cases, where the whistleblower and organisation consent and where it is not contrary to the public interest to do so'. 

6 Discretion to bring civil proceedings for remedies/intervene in criminal or civil cases: It's suggested that the WPA should:

'have a discretion to bring civil (including employment) proceedings for remedies, in the public interest, including on behalf of individual whistleblowers (with their consent). It would also have power to intervene in criminal or civil cases raising public interest whistleblower protection issues, and would be required to be consulted by any federal public agency proposing to take legal action against a whistleblower as to the reasonableness of that action'.

7 Remedies and Rewards: It's suggested that the WPA should be empowered to: 

• 'seek financial remedies on behalf of whistleblowers
• administer redress and reward schemes based on a proportion of penalties, financial savings or other income derived by the Commonwealth as a result of whistleblower disclosures, and
• seek legal costs protection for whistleblowers, including on a full indemnity basis, in appropriate cases'. [emphasis added]

On the second point, the report does not go into detail around what 'redress and reward schemes' might look like. It is an idea that the Attorney General recently sought feedback on as part of the consultation of a second phase of proposed whistleblower reforms.

8 'Comprehensive, seamless jurisdiction': It's suggested that the WPA should:

'have jurisdiction to enforce protected disclosures under any and all Commonwealth laws (public sector, corporate, not-for-profit, union and sector-specific) – including to ensure whistleblowers do not ‘fall through cracks’ in protection, whether they are public servants, contractors, consultants, corporate or NGO employees or any other person working in a federally-regulated industry or sector who speaks up about wrongdoing in or by their own or a related organisation'.

9 'Adequate' funding and powers: It's suggested that the WPA's powers should include the following powers:

• compel evidence and information;
• issue guidance and recommendations; 
• monitor progress on outcomes arising from disclosures; 
• maintain confidential communications with whistleblowers and organisations; conduct reviews of the effectiveness of
• organisational policies, regulations and legislation; and 
• report publicly on specific cases or general issues. 

It's also submitted that the WPA should be 'appropriately funded' with a 'multi-party parliamentary committee' to have oversight of these arrangements.

10 Whistleblower Protection Commissioner, standalone budget: In the interests of ensuring the WPA's independence, it's submitted that the WPA should:

• Be headed by a 'suitably-qualified, specialised statutory officer' – the Whistleblower Protection Commissioner. It's suggested that the Commissioner should have 'security of tenure equivalent to a judicial officer'
• Have a 'stand-alone budget and dedicated body of staff' (including 'those with personal experience of having blown the whistle')
• Supported by 'statutory coordination and advisory committees, including advice from civil society, employer, union and former whistleblower representatives'.

Outlook

The submissions window for the Attorney General's consultation on a 'second phase' of potential reforms to the Public Interest Disclosure Act 2013 (Cth) concluded in December 2023. That consultation specifically sought views on the need for/scope and design of an independent body to protect public sector whistleblowers – a WPA (see: questions 14-19 of the Consultation Paper).
As flagged in the report, there appears to be a level of support - including from some current MPs and Senators – for the establishment of a WPA. Several submissions to the Attorney General's consultation also express support for the establishment of an independent body, including the Australian Law Reform Commission.

However, the government's current position on the establishment of a WPA is not yet known – no concrete steps towards establishing such a body (eg consultation on draft legislation, introduction of legislation) have been taken.

[Source: Human Rights Law Centre media release 13/02/2024; Full text report: Making Australian Whistleblowing Laws Work]