PARLIAMENT OF VICTORIA Independent Broad‑based Anti‑corruption Commission Committee Improving Victoria’s whistleblowing regime: a review of the Protected Disclosure Act 2012 (Vic) Parliament of Victoria Independent Broad‑based Anti‑corruption Commission Committee Ordered to be published VICTORIAN GOVERNMENT PRINTER June 2017 PP No 288, Session 2014‑17 ISBN 978 1 925458 74 9 (print version) 978 1 925458 75 6 (PDF version) Committee functions The IBAC Committee is constituted under section 12A of the Parliamentary Committees Act 2003. 1. The functions of the Committee are— a. to monitor and review the performance of the duties and functions of the IBAC; b. to report to both Houses of the Parliament on any matter connected with the performance of the duties and functions of the IBAC that require the attention of the Parliament; c. to examine any reports made by the IBAC; d. to consider any proposed appointment of a Commissioner and to exercise a power of veto in accordance with the Independent Broad‑based Anti‑corruption Commission Act 2011; e. to carry out any other function conferred on the IBAC Committee by or under this Act or the Independent Broad‑based Anti‑corruption Commission Act 2011; f. to monitor and review the performance of the duties and functions of the Victorian Inspectorate, other than those in respect of VAGO officers or Ombudsman officers; g. to report to both Houses of the Parliament on any matter connected with the performance of the duties and functions of the Victorian Inspectorate that require the attention of the Parliament, other than those in respect of VAGO officers or Ombudsman officers; h. to examine any reports made by the Victorian Inspectorate, other than reports in respect of VAGO officers or Ombudsman officers; i. to consider any proposed appointment of an Inspector and to exercise a power of veto in accordance with the Victorian Inspectorate Act 2011. 1A. Despite anything to the contrary in subsection (1), the IBAC Committee cannot— a. investigate a matter relating to the particular conduct the subject of— i. a particular complaint or notification made to the IBAC under the Independent Broad‑based Anti‑corruption Commission Act 2011; or ii. a particular disclosure determined by the IBAC under section 26 of the Protected Disclosure Act 2012, to be a protected disclosure complaint; b. review any decision by the IBAC under the Independent Broad‑based Anti‑corruption Commission Act 2011 to investigate, not to investigate or to discontinue the investigation of a particular complaint or notification or a protected disclosure complaint within the meaning of that Act; c. review any findings, recommendations, determinations or other decisions of the IBAC in relation to— i. a particular complaint or notification made to the IBAC under the Independent Broad‑based Anti‑corruption Commission Act 2011; or ii. a particular disclosure determined by the IBAC under section 26 of the Protected Disclosure Act 2012, to be a protected disclosure complaint; or Improving Victoria’s whistleblowing regime: a review of the Protected Disclosure Act 2012 (Vic) iii Committee functions iii. a particular investigation conducted by the IBAC under the Independent Broad‑based Anti‑corruption Commission Act 2011; ca. review any determination by the IBAC under section 26(3) of the Protected Disclosure Act 2012; d. disclose any information relating to the performance of a function or the exercise of a power by the IBAC which may— i. prejudice any criminal investigation or criminal proceedings; or ii. prejudice any investigation being conducted by the IBAC; or iii. contravene any secrecy or confidentiality provision in any relevant Act. 2. Despite anything to the contrary in subsection (1), the IBAC Committee cannot— a. investigate a matter relating to particular conduct the subject of any report made by the Victorian Inspectorate; b. review any decision to investigate, not to investigate, or to discontinue the investigation of a particular complaint made to the Victorian Inspectorate in accordance with the Victorian Inspectorate Act 2011; c. review any findings, recommendations, determinations or other decisions of the Victorian Inspectorate in relation to a particular complaint made to, or investigation conducted by, the Victorian Inspectorate in accordance with the Victorian Inspectorate Act 2011; d. disclose any information relating to the performance of a function or exercise of a power by the Victorian Inspectorate which may — i. prejudice any criminal investigation or criminal proceedings; or ii. prejudice an investigation being conducted by the IBAC; or iii. contravene any secrecy or confidentiality provision in any relevant Act. iv Independent Broad-based Anti-corruption Commission Committee Committee membership Hon Kim Wells MP Hon Marsha Thomson MP Chair Deputy Chair Rowville Footscray Mr Sam Hibbins MP Mr Danny O’Brien MP Mr Simon Ramsay MLC Prahran Gippsland South Western Victoria Mr Tim Richardson MP Ms Jaclyn Symes MLC Mordialloc Northern Victoria Improving Victoria’s whistleblowing regime: a review of the Protected Disclosure Act 2012 (Vic) v Committee secretariat Staff Ms Sandy Cook, Executive Officer Ms Kirstie Twigg, Research Officer (until 28 June 2016) Dr Stephen James, Research Officer (from 12 September 2016) Ms Gillian Bourke, Administrative Officer (until 16 December 2016) Ms Justine Donohue, Administrative Officer (from 23 January 2017) Consultant Mr James Catlin, Barrister Committee contact details Address Independent Broad‑based Anti‑corruption Commission Committee Parliament House, Spring Street EAST MELBOURNE VIC 3002 Phone 61 3 8682 2815 Email [email protected] Web www.parliament.vic.gov.au/ibacc This report is available on the Committee’s website. vi Independent Broad-based Anti-corruption Commission Committee Contents Preliminaries Committee functions iii Committee membership v Committee secretariat vi Chair’s foreword xi Executive summary xiii List of abbreviations xxix 1 Introduction 1 1.1 The importance of whistleblowing 1 1.2 Defining whistleblowing 4 1.3 The purpose of this report 8 1.4 The scope of this report 9 1.5 The need to protect whistleblowers 10 1.5.1 The incidence of mistreatment of whistleblowers and general negative impacts 11 1.5.2 The nature of mistreatment and general negative impacts 13 1.5.3 The need for protection 14 1.6 Overview of the Victorian whistleblowing system 15 1.7 The Committee’s Review 16 1.7.1 Literature review and background briefings 17 1.7.2 Written submissions 17 1.7.3 Hearings in Melbourne 17 1.7.4 Closed hearings in Sydney 18 1.7.5 Meetings overseas 18 1.7.6 Consultant 18 1.7.7 Stakeholder input into the Review 18 1.7.8 Best‑practice principles 19 1.8 The structure of this report 22 1.9 Conclusion 23 2 The current operation of the Protected Disclosure Act 2012 (Vic) 25 2.1 Introduction 25 2.2 Background to the PD Act 2012 (Vic) 26 2.2.1 Why was it introduced? 26 2.2.2 What were the major changes? 26 2.3 Current operation of the PD Act 2012 (Vic) 27 2.3.1 Who can make a disclosure? 28 2.3.2 What can the disclosure be about? 28 Improving Victoria’s whistleblowing regime: a review of the Protected Disclosure Act 2012 (Vic) vii Contents 2.3.3 How can a disclosure be made? 33 2.3.4 Who can a disclosure be made to? 34 2.3.5 How are disclosures handled? 37 2.3.6 How are disclosures assessed and determined? 38 2.3.7 How are disclosers protected? 39 2.4 Conclusion 40 3 Assessing the coverage of the PD Act 2012 (Vic) 41 3.1 Introduction 41 3.2 Should the range of disclosers be restricted? 41 3.2.1 The argument for restriction 41 3.2.2 The advantages of the broader approach 43 3.3 What type of improper conduct should the PD Act 2012 (Vic) cover? 49 3.3.1 What is maladministration? 50 3.3.2 Arguments for adding ‘maladministration’ to the PD Act 2012 (Vic) 51 3.3.3 Best‑practice principles 52 3.3.4 Current Victorian law in comparative perspective 54 3.3.5 Does the PD Act 2012 (Vic) already cover maladministration? 57 3.4 Complaints and disclosures about MPs 60 3.4.1 The Victorian law 61 3.4.2 The law in other Australian jurisdictions 68 3.4.3 The Committee’s view 77 3.5 Scope of public bodies 79 3.5.1 Arguments for expanding the definition of ‘public body’ 79 3.5.2 Current Victorian law 81 3.5.3 Prescribed public bodies and bodies performing public functions 81 3.5.4 Bodies receiving substantial public funds 83 3.6 Conclusion 84 4 Making, assessing and investigating disclosures 85 4.1 Introduction 85 4.2 Making disclosures 85 4.2.1 The current law in Victoria 85 4.2.2 Disclosing to the right body 86 4.3 Misdirected disclosures 89 4.4 Third‑tier disclosures 90 4.4.1 Current Victorian law 91 4.4.2 Best‑practice principles 91 4.4.3 Arguments for the protection of third‑tier disclosures 92 4.4.4 Third‑tier disclosure in Australian jurisdictions 96 4.4.5 Concerns over third‑tier disclosure 102 4.4.6 Evaluating the arguments 104 viii Independent Broad-based Anti-corruption Commission Committee Contents 4.5 Assessing and investigating disclosures 108 4.5.1 Assessing disclosures: IBAC’s clearing‑house role 108 4.5.2 Referral of protected disclosure complaints 109 4.6 Conclusion 113 5 Protecting disclosers 115 5.1 Introduction 115 5.2 Detrimental action 115 5.2.1 The mistreatment of whistleblowers 116 5.2.2 Best‑practice principles 118 5.2.3 Current Victorian law 119 5.2.4 The threshold for detrimental action in reprisal 122 5.3 Confidentiality 123 5.3.1 Best‑practice principles 123 5.3.2 Current Victorian law 124 5.3.3 Concerns over confidentiality 125 5.3.4 Evaluating