The Queensland Government's comprehensive, root and branch review into the public sector's whistleblowing legislation is now complete with broad, significant change to the Public Interest Disclosure Act 2010 (PID Act) recommended.
While the Queensland Government broadly supports the findings of the Report and is committed to renewing the whistleblowing framework, it is yet to announce if all or only some of the 107 recommendations will be adopted, or the timeframe for adoption. Despite this, given the broadscale nature of the changes and amendments recommended by the Review, it is important that public sector agencies and officers are aware of the key recommendations and reforms proposed by the Review.
The Review's 107 separate recommendations can be best understood and considered by reference to six broad themes in the Review report.
Theme 1: A new Act
The Review concluded that the scale and scope of the necessary changes and amendments to the PID Act are of such significance as to require the replacement of the PID Act with a new Act, that has a new title, clarified objects, and is simpler to use and easier to understand. As part of this, the Review recommended that the term "whistleblower" be included in the title of the new legislation to highlight the purpose of the Act and in that capacity make it more accessible for persons wanting to report wrongdoing.
Theme 2: An expanded reach
The Review recommended expanding the definition of public sector entity to uniformly capture a broader array including government owned corporations and Queensland Rail (and their subsidiaries), local government corporations, and companies which are beneficially owned by the State.
The Report also recommended that the class of individuals entitled to make a PID be extended to:
- former public officers (for up to 12 months after they cease to be a public officer); and
- persons performing functions on behalf of, or providing goods or services to, a public sector entity, including trainees, students, contractors and certain volunteers.
However, it was recommended that the eligibility to make a PID be otherwise removed from "any person" and confined to the new expanded set of current and former public officers of public sector entities.
Theme 3: A higher threshold
The Report recommended changing what should be considered a PID, saying that the conduct caught by the legislation should be that which, if left unchecked, would cause serious detriment to the public sector and the public interest such as:
- corrupt conduct;
- serious maladministration;
- serious misuse of public resources; and
- serious danger to the environment, or to public health and safety.
These recommendations included that:
- the current threshold for disclosable conduct be changed from "substantial and specific" to "serious wrongdoing";
- an additional category for disclosable conduct be introduced that captures any other conduct that demonstrates serious or systemic wrongdoing in the public sector and is in the public interest to expose and remedy; and
- a PID does not include a disclosure that is solely about a personal workplace grievance.
Theme 4: Better support, protections and remedies
The Report identified the need for whistleblowers to have better support, stronger protections against adverse consequences, and supplementary remedies for any adverse consequences. Significantly, it recommends the introduction of a statutory duty of care to be imposed on public sector entities to protect whistleblowers from direct reprisal and collateral harm, which would enable whistleblowers to pursue a civil law claim for damages for any injury or loss arising from an agency's breach.
Other recommendations made in the Report to improve the protections and support available to whistleblowers include:
- the introduction of a whistleblower support unit housed within the Office of the Queensland Ombudsman;
- protections be extended beyond detriment suffered only as a result of direct reprisals, to collateral harms caused by the processes and systems within which whistleblowers are obliged to make their disclosures;
- a shift of the burden of proof in serious matters involving allegations of reprisal;
- greater clarity about a whistleblower's rights to, and obligations for, preserving confidentiality;
- an introduction of appropriately constrained immunities for conducting preparatory acts for the purpose of making a disclosure; and
- introduction of a right for whistleblowers to seek a merits review of a decision about whether a disclosure should be covered by the legislation.
Theme 5: More effective management
The Review noted that the PID Act is not prescriptive about the administrative processes and procedures for dealing with a PID. It makes a number of recommendations aimed at clarifying an agency's obligations upon receiving and identifying a report as a PID, including:
- clarification that agencies must assess information they receive in accordance with the Act;
- imposing specific timeframes for certain steps, such as the initial assessment of a disclosure or an investigation;
- requiring an agency to provide information to disclosers, subject officers and others at least every 3 months in the PID process; and
- providing written reasons to a discloser within 28 days for decisions that a report is or is not a PID.
Theme 6: Better oversight
The Report recommends the strengthening of the Ombudsman's role in ensuring compliance with the PID scheme by requiring it to audit, monitor and review PIDs, and additional resourcing to undertake these additional functions.