Back on the whistleblowing agenda: a Whistleblower Protection Authority

Earlier this month, independent Parliamentarians Andrew Wilkie MP and Dr Helen Haines MP introduced the Whistleblower Protection Authority Bill 2025 to establish a dedicated, independent agency to safeguard individuals who speak up from inside government and business organisations about corruption and misconduct. Senators David Pocock and Jacqui Lambie introduced the Whistleblower Protection Authority Bill 2025 (No 2) (which is materially the same) in the Senate the following day.

The Bill does not have major party support at this stage, however cross-bench MPs in the Federal Parliament have a history of floating ideas that eventually make their way into Government legislation, although it can take time: for example, the National Anti-Corruption Commission began as a private member's Bill in 2009. The growing bargaining power of the cross-bench makes it even more useful to look at their legislative proposals for clues to the future shape of the law.

At the core of the Bill is a Whistleblower Protection Authority (WPA), with a Whistleblower Protection Commissioner to ensure all whistleblowers who make protected disclosures under various Commonwealth legislation get proper support and protections. The Bill covers both private sector and public sector whistleblowing.

The potential impacts of the Bill are wide-ranging, including that public sector agencies may be exposed to greater oversight and monitoring in terms of how they manage whistleblower protection issues. It is not currently clear to what extent the WPA will interface with the private sector – certainly the Bill appears to be more developed in respect of the public sector – though businesses in the private sector may be exposed to investigations and proceedings by the WPA and 'named and shamed' in a public report.

The Senate has referred the Bill to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by Friday 29 August 2025. Businesses that wish to be heard on the Bill will be required to make their submissions to the Committee by Monday 30 June 2025.

The key features of the proposed WPA

The WPA will act as an independent statutory authority responsible for providing information, advice, assistance, guidance and support to any person, including a whistleblower or someone with responsibility for managing a whistleblower disclosure (for example, a person with protection or investigation responsibilities).

Making a disclosure

Whistleblowers will be able to make whistleblower disclosures anonymously to the Commissioner. Disclosures may be provided orally. However, the Commissioner may request oral disclosures to be provided in writing.

The Commissioner will be able to receive disclosures of wrongdoing from any person and may refer disclosures for investigation. Where the Commissioner refers a disclosure to a Commonwealth agency, the Commissioner will maintain the power to monitor, oversee and review any subsequent investigation to ensure proper whistleblower protections are afforded.

The identity and confidentiality of any person who makes a disclosure to the Commissioner will be safeguarded. They will also have the option to be kept informed on the actions taken by the Commissioner in relation to the disclosure.

The Commissioner may provide or arrange for the provision of legal services for an individual who has a whistleblower protection issue if this would promote compliance with whistleblower protection responsibilities and is otherwise appropriate in the circumstances.

There will be a mandatory obligation for public officials to inform the WPA when they become aware of a whistleblower protection issue.

The Commissioner's investigations

The Commissioner's investigative powers will be limited to whistleblower protection issues, which currently extend to:

• any conduct (including an act or omission) that amounts to reprisal, victimisation or causes detriment to a person making a disclosure of wrongdoing under certain legislation; or
• a failure by a person to fulfil whistleblower protection responsibilities in respect of a disclosure where that has led (or is likely to lead to) detriment or harm to any person.

Whistleblower protection responsibilities are defined broadly and includes any duty to a person who made, may have made, or may make a disclosure under any law or applicable code of conduct or policy in respect of:

• providing support or protection to the person;
• dealing with the person's disclosure consistent with the prescribed law;
• not causing detriment to the person; or
• victimising or engaging in reprisal action against the person.

The Commissioner may deal with a whistleblower protection issue on its own or in conjunction with another agency, including by way of independent investigation. When determining the best approach, the Commissioner will weigh a variety of factors (non-exhaustive criteria), including:

• the need to ensure issues are fully investigated;
• the rights and obligations of other agencies to investigate;
• the rights and obligations of the whistleblower – including confidentiality and protection from reprisal; and
• balancing the Commissioner's role in dealing with significant whistleblower issues while:
  • ensuring agencies take responsibility to investigate such matters; and
  • the likely significance of the whistleblower protection issue for any person to whom it relates.

Where the Commissioner investigates a whistleblower protection issue, the investigation will not be directed towards the underlying misconduct, but instead, whether there has been reprisal, victimisation or detriment of a person making a disclosure, or a breach of a whistleblower protection responsibility.

The Commissioner may only commence proceedings for a whistleblower protection issue where it is in the public interest.

The Commissioner may decide not to take further action if they are satisfied that (amongst other matters):

• another agency is investigating a disclosure;
• a disclosure is frivolous or vexatious;
• the whistleblower protection issue is the subject of legal proceedings; or
• an investigation is not warranted.

The Commissioner may accept an enforceable undertaking from a person who the Commissioner reasonably believes has contravened a whistleblower protection responsibility. While a person may withdraw from an enforceable undertaking at any time, the Commissioner may not commence proceedings against a person while the undertaking is in place.

The Commissioner may communicate to the public the results of any investigation and make recommendations including:

• measures to remedy deficiencies or prevent detriment;
• decision to reinstate employment or duties;
• pay compensation or reward;
• enforce civil penalty or obtain a remedy; and
• other action to enforce protections.

The Commissioner may recommend rewards in favour of individuals who make disclosures of wrongdoing, though there is no detail on how this would operate in practice.

Whistleblower governance

A Whistleblower Protection Advisory Council will be established to provide strategic advice on the Commissioner's function at the request of the Commissioner or the Minister.

The Commissioner must report on the performance of its function each financial year, including details of all whistleblower protection issues that have been dealt with (directly or in conjunction with another agency). The report may omit sensitive information but may effectively name and shame businesses.