In 1994, the Australian Capital Territory became one of the first places in the world to enact a standalone law to protect public sector whistleblowers.
The passage of the Public Interest Disclosure Act, or PID Act, was a notable legislative achievement; territory government employees could be confident of specific legal protections for calling out wrongdoing.
Unfortunately, more than three decades on, the ACT no longer leads the world, or even the nation, when it comes to protecting whistleblowers. A few recent high-profile cases of alleged wrongdoing within the territory, extensively chronicled in this newspaper, have underscored as much.
While the PID Act was replaced with new legislation in 2012, the territory's speak-up regime now lags behind other jurisdictions - both in the legal protections on paper, and the oversight and support available to whistleblowers.
It was welcome, then, that last month the ACT Legislative Assembly moved a motion from Thomas Emerson calling for stronger whistleblower protections and support in the Territory. "Whistleblowers improve transparency and accountability in public institutions, and are essential for a healthy and functional democracy," the motion noted.
"Whistleblowing frameworks must be designed to encourage and support whistleblowers to come forward."
The ACT whistleblowing framework was reviewed three years ago, but reform resulting from that review has yet to be enacted; in the meantime, there have been a range of developments in other Australian jurisdictions. That makes reform overdue.
Let us consider a few key issues. In 2024, in a case involving tax office whistleblower Richard Boyle, the South Australian Court of Appeal held that whistleblower protections only apply to the actual act of whistleblowing, not any preparatory conduct.
ACT whistleblowing law would likely be interpreted in the same way, given equivalent statutory language. This is a problem for whistleblowers who could face liability or retaliation for steps they take to prepare to blow the whistle.
That may sound technical, but it has significant real-world consequences. Say a territory whistleblower wants to take information about corruption within their directorate to the Integrity Commissioner. Because of the Boyle decision, they are only protected if they provide any evidence they have from their work email address, from the workplace.
If a public servant, concerned about their corrupt boss realising they were intending to blow the whistle, took home a document evidencing some of the corruption, for the sole purpose of posting it to the Integrity Commission, or emailed it to their private email address to forward on. Those acts would likely be contrary to the public sector code of conduct and criminal law. But while the whistleblowing disclosure itself would engage protections, this conduct would not be immune from liability.
While the protections in the PID Act are strong on paper, they are also difficult to access - requiring an application to the ACT Supreme Court. It is notable that there have only been two cases under the PID Act since revised in 2012. The ACT regime also requires the whistleblower to prove that detrimental action was taken because of the whistleblowing; other jurisdictions, including in NSW and the federal private sector law, now impose a reverse onus so that the employer must disprove any connection between the employment detriment and the whistleblowing.
The NSW law, the strongest state whistleblowing law which was significantly updated in 2022, also imposes an enforceable positive duty on government agencies to protect whistleblowers from retaliation.
Two other aspects of Emerson's motion are notable. First, it calls for the territory government to embed a dedicated whistleblower support function within a relevant agency - either the Integrity Commission, the Ombudsman, the Human Rights Commission or the Public Sector Standards Commissioner. This would align the ACT with NSW, which has established a specialist support team within its Ombudsman; the Albanese government has also proposed to establish a Whistleblower Ombudsman within the Commonwealth Ombudsman.
Second, the motion calls for the ACT to follow in the footsteps of NSW and pilot options for whistleblowers to access specialist legal and wellbeing support. Together, these oversight and support functions would help make it less difficult to speak up.
The challenges of doing so are well-known; if whistleblowers can access dedicated assistance, they are more likely to be able to navigate the legal frameworks and speak up safely and lawfully.
Emerson's motion received multi-partisan backing, with the Barr government, the Parton opposition and the Greens all supporting the bid for stronger whistleblower protections.
The motion requires the government to report back by the end of the year. There is momentum for whistleblowing reform across the country: Queensland is in the process of reforming its version of the PID Act, at the federal level reform to public sector whistleblowing laws are in progress and private sector protections are under review by Treasury. The ongoing KPMG scandal has emphasised the need for action.
The ACT has the opportunity to lead again - to ensure whistleblowers in the territory are protected, not punished. That would be good for all territorians. Transparency and integrity are vital in all governments, but particularly those of the duration of the ACT's Labor government. When whistleblowers can speak up, safely and lawfully, wrongdoing is held to account and citizens enjoy better government.
The territory's history of protecting whistleblowers is somewhat curious; the first PID Act was actually a private member's bill, moved by Kate Carnell while in opposition. But in time, it has become an issue of multi-partisan concern and commitment. Perhaps that history underscores the potential of Emerson's current efforts.
In the Legislative Assembly debate on Carnell's bill, the then-chief minister, Rosemary Follett, outlined the basic case for whistleblower protections. Even in a government that aspires to "a reputation for integrity and for probity," Follett said, "unfortunately, situations will occur which give rise to allegations of fraudulent or corrupt behaviour or maladministration."
Follett continued: "It is the duty of every ACT government service employee to report fraud, corruption or maladministration. Arguably, it is the duty of every citizen to do so as well."
So too is it the duty of every government to ensure those whistleblowers are well supported and protected.
