Final Report of the Review of the Public Interest Disclosure Act 2010

The highly anticipated final report from the Review of the Public Interest Disclosure Act 2010 (PID Act Review) was publicly released on 9 August 2023.

A review of the PID Act was recommended as part of Professor Peter Coaldrake’s Review of Culture and Accountability in the Queensland Public Sector (the Coaldrake Report), which highlighted concerns about the way in which complaints to or about government were escalated, whistleblowers, and the failure of the PID Act to protect them.

The Final Report of the Review of the Public Interest Disclosure Act (the Report) spans more than 300 pages and includes over 100 recommendations that set out sweeping changes to the PID regime in Queensland. Most notably, Recommendation 1 is to repeal the PID Act and institute a new Act, with the new legislation to reflect the focus on ‘whistleblowers’ and ‘whistleblowing’, which would make the legislation more easily accessible for those wanting to report wrongdoing and align it with other Queensland public sector Acts.[1]

Other key recommendations are set out below.

‘Workplace grievances’

The current PID Act does not prevent the making of PIDs about personal workplace grievances, such as bullying in circumstances where the PID otherwise meets the criteria for the making of a protected disclosure. It was identified in a number of submissions that “the use of whistleblowing channels to agitate personal work issues have tended to undermine the efficacy and reputation of whistleblowing laws.”[2] Submissions indicated that personal workplace grievances ought to be excluded from the PID regime, other than specific circumstances such as systemic issues on the basis that:

• workplace grievances are personal to the complainant, and there is unlikely to be public interest in the subject matter of the disclosure; and
• there are alternative ways in which these matters may be resolved, providing a swifter resolution.

The report stated that “the Act does not – and should not – apply to all reports of wrongdoing. It is one of many instruments concerned with addressing wrongdoing in the public sector.“[3] Explicit exclusion of personal workplace grievances from the Act would align with legislation in other Australian jurisdictions, including New South Wales, and the amendment to the Commonwealth PID Act, which includes a carve-out for ‘personal work-related conduct.’

The Review concluded that the definition of PIDs should be amended to exclude PIDs that solely relate to personal workplace grievances as this would better serve the object of the Act and increase the efficiency of the regime, though there should be discretion to consider PIDs relating to workplace grievances in certain circumstances.

Expansions of PIDs

At its very core, a PID is a report of alleged wrongdoing in the public interest, providing protections to the discloser. The PID Act does not provide an accessible definition for the types of conduct that may constitute the types of wrongdoing that may warrant disclosure. The Report recommends the introduction of ‘disclosable conduct’ to assist disclosers, and potential disclosers, in determining matters that can and cannot be the subject of a PID. With the introduction of this concept, a PID will be a disclosure made about ‘disclosable conduct’.

Broadly, the Review recommended that the following conduct be included in the definition of ‘disclosable conduct’:

• ‘corrupt conduct’, as defined in the Crime and Corruption Act 2001 (Qld);
• direct reprisal;
• serious maladministration that adversely affects, or may affect, the interests of a person, other than solely the interests of the discloser;
• serious misuse of public resources;
• serious danger to the environment;
• serious danger to public health or safety; and
• any conduct of a public officer or public sector entity that demonstrates serious or systemic wrongdoing in the public sector and is in the public interest to expose and remedy.

The Review also recommended that the following disclosures be removed from the new Act:

• the ability for any person to make protected disclosures about substantial and specific dangers to persons with a disability; and
• the ability for any person to make protected disclosures about substantial and specific dangers to the environment, as is described in sections 12(1)(b) and (c) of the PID Act.

The Review also recommends that disclosable conduct should relate to conduct that is in a public officer’s official capacity, and should not be trivial, or relate solely to disagreement with government conduct.

Expansion of eligible disclosers

Other jurisdictions allow additional classes of people to be eligible to make protected disclosures, including:

1. people who exercise powers or perform functions on behalf of government, such as contractors, secondees, volunteers, and students undertaking work experience placements;
2. former public officials; and
3. witnesses, and relatives of a discloser.

People performing government functions

Although the Code of Conduct for the Queensland Public Service definition of employees includes volunteers, students, contractors, consultants, or others who work in any capacity for a Queensland public sector agency and imposes an obligation to report conduct that is inconsistent with the code, those who are not government employees are not afforded protections under the PID Act.

Queensland is the only Australian jurisdiction that does not protect disclosures made by contractors. Specifically, the Commonwealth uses the term ‘contracted service provider’ to extend protections to contractors and subcontractors, and the New South Wales definition of ‘public official’ includes those providing services or exercising functions on behalf of a government agency. The Review supported a provision in the Act to expand protections to contractors and subcontractors, similar to section 82 of the NSW PID Act.

The Review highlighted that students and trainees undertaking placements within public sector entities are particularly vulnerable to the effects of reporting public sector wrongdoing, with the Review considering that the definition of ‘public officer’ should be extended to trainees and students undertaking placements within public sector entities, but not extended to students more broadly.

While the Review highlights the importance of protecting certain volunteers, the Review considered that, as a general rule, volunteers should not be protected under PID legislation, on the basis that a volunteer can extricate themselves from any risk of a reprisal without suffering financial or legal consequences, that the varied nature of volunteer work impacts the quality and nature of information a volunteer may be privy to, and the significant administrative burden that would result from such an expansion of protections under the Act. The Review acknowledges that, in the case of Queensland Fire and Emergency Services, and the Queensland Police Service’s ‘Volunteers in Policing’ programs, protections would be appropriate.

Former Public Officials

The Review noted that, given the risk of reprisal in many instances of disclosure, a public officer may be uncomfortable making a disclosure until the end of their employment. The Review recommended that disclosures made by former public officials should be permitted, with the caveat that such disclosures must be related to matters within their knowledge as a public officer, rather than a private citizen, and that any disclosure must be made within 12 months from the date they cease to be a public officer.

Witnesses, relatives, and dependents

While some jurisdictions permit disclosures from witnesses and those connected with eligible disclosers, including the Corporations Act whistleblowing scheme, the PID Act does not in its current state. New South Wales, for example, considers that witnesses who provide information in investigations relating to serious wrongdoing have made ‘witness public interest disclosure’, which permit certain protections.

Although the Review acknowledged that there is potential for witnesses to experience detriment as a result of participation in a PID investigation, given the significant administrative burden that would result from treating a witness as a discloser, and that other mechanisms exist to protect a witness from harm, the Review did not recommend that witnesses be permitted to make protected disclosures.

Recommendations specifically aimed at Government Owned Corporations

Under the current PID Act, employees of Government Owned Corporations (GOCs) and Queensland Rail are permitted to make protected disclosures about limited matters and in a different manner than public employees. Submissions made to the Review broadly recommended that employees of GOCs and Queensland Rail be permitted to make PIDs by way of the same processes, though a number of GOCs stated that they should be wholly excluded from the PID regime, given the whistleblower protections under the Corporations Act. While Queensland Rail is not a GOC, for the purposes of the PID Act they are not treated as public sector entities for the purposes of the PID Act.

The PID Act is unique in that GOCs are subject to separate requirements, whereas in other Australian jurisdictions, GOCs are considered ‘public sector entities’. In New South Wales, GOCs are specifically excluded from the Corporations Act whistleblower regime, preventing the duplication, and reducing administrative burden.

The Review recommends that the definition of ‘public sector entity’ for the purposes of the PID Act should be expanded to include GOCs and Queensland Rail.

Strengthened role of the Ombudsman

The Review found that the PID regime requires more comprehensive oversight, particularly assuming the implementation of the recommendations, and that the Office of the Ombudsman is the agency best placed to do this. The Review noted that, for the most part, the recommendations set out in the Review build on or complement functions of the Ombudsman that are already in place. Specifically:

• Recommendation 93, being a requirement for the Ombudsman to proactively audit whether agencies appropriately comply with the Act is an extension of the Ombudsman’s existing function to ‘monitor the management’ of PIDs;
• Recommendations 98 and 99, which permit the Ombudsman to conduct a merits review of a PID assessment decision, are consistent with the Ombudsman’s existing function to review treatment of PIDs by agencies;
• Recommendation 61, being the establishment of a whistleblower support function, is consistent with the Ombudsman’s educational and advisory role; and
• The recommendations are broadly consistent with the primary focus of the Ombudsman to investigate complaints relating to maladministration and promotion of good government decision-making.

The Review, and many of the submissions, highlighted the need for the Ombudsman to be furnished with greater resources in order to adequately deliver the new functions. Specifically, the Review recommended the appointment of an additional Deputy Ombudsman to oversee the implementation of the new Act and to oversee the ongoing PID oversight functions. The Review also highlighted that the Ombudsman has been ‘comparatively underfunded’ when compared to its counterparts in other Australian jurisdictions.[4]

Clearing House

One of the key recommendations stemming from the Coaldrake Report was that a ‘clearing house’ for complaints be established.

Ultimately, the Review found that the establishment of a ‘clearing house’ would ultimately add additional administrative burden, and rather than increasing efficiency of the PID regime, would exacerbate existing difficulties given that the effectiveness would be dependent on:

• the expertise of staff, given the broad range of legislation and breadth of reports that would be received;
• the relationships between any clearing house and relevant agencies that deal with PIDs;
• the specific functions that it would be assigned.

Ultimately, the Review considered that a clearing house would add additional bureaucracy and an administrative burden with little benefit, as respective agencies are in the best position to assess and filter out PIDs as received.

Government Response

The Queensland Government is yet to release a substantive response to the Report, though the Attorney-General’s media statement stated that “the Palaszczuk Government broadly supports the findings of the Report and is committed to renewing Queensland’s whistleblowing framework to ensure wrongdoing in the public sector can be effectively exposed and remedied, while ensuring whistleblowers are protected.”

Gadens will continue to await any response from the Government, with any updates to be covered in the monthly Queensland Corruption and Integrity Update.

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Authored by:

Daniel Maroske, Partner
Anna Fanelli, Senior Associate

[1] PID Act Report, 19 June 2023, page 38.

[2] Joint submission from Griffith University, the Human Rights Law Centre, and Transparency International (Submission 55), page 6.

[3] PID Act Report, 19 June 2023, page 62.

[4] PID Act Report, 19 June 2023, page 221.