Whistleblower bill excluding sexual harassment complaints from protection goes too far, Greens senator says

Labor’s whistleblower bill goes too far in excluding personal conduct such as sexual harassment complaints from protection, the Greens and legal stakeholders have warned.

The Greens justice spokesperson, David Shoebridge, said the bill “excludes whistleblower complaints with a mixture of employment elements”, which he claims goes a step further than the related recommendation from a review into the laws.

The bill was introduced in November in a bid to improve whistleblower protections before the national anti-corruption commission opens its doors in June, but submissions to a parliamentary inquiry and Shoebridge’s comments signal an intention to make it tougher.

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Examples in the bill of conduct that could no longer be the subject of a whistleblower complaint include interpersonal conflicts, bullying or harassment; disputes about promotions; terms and conditions of employment; and disciplinary action including suspension or termination.

The Australian Human Rights Commission has called for members of parliamentary staff to gain rights to make a protected public interest disclosure, while independent MP Helen Haines continues to push for a whistleblower commissioner.

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The attorney general, Mark Dreyfus, said he will consider those options but only in the second tranche of reforms and after consultation.

The bill seeks to implement the highest priority recommendations of the 2016 Moss review, which found that “the kinds of disclosable conduct are too broad”.

Allegations of serious misconduct, such as fraud or corrupt conduct, were only a “minority” of whistleblower disclosures, the review found, while most related to “personal employment-related grievances for which the [Public Interest Disclosure Act] is not well-suited”.

The review recommended excluding conduct “solely related to personal employment-related grievances” unless it related to systemic wrongdoing.

The bill excludes “personal work-related conduct” from the regime, unless it is a “reprisal” against the whistleblower or significant enough to undermine public confidence in the agency or have “other significant implications”.

The explanatory memorandum says it is necessary to “refocus the PID Act on integrity related wrongdoing” but says that serious misconduct could still be the subject of a disclosure, such as “discriminatory employment practices or nepotism”.

“This approach is not to suggest that agencies should ignore other forms of wrongdoing or workplace conflict but recognises that other frameworks are better placed to deal with personal work-related conduct.

“For example, internal human resources processes or a code of conduct investigation may be a more appropriate vehicle for responding to an allegation of workplace harassment.”

Plaintiff law firm, Maurice Blackburn, submitted that it is “difficult to draw a bright line distinction” between personal employment grievances and unlawful conduct.

It said that “all instances of unlawful harassment and discrimination” – including race and sex discrimination – undermine confidence in public sector agencies, so disclosures should be protected.

Shoebridge told Guardian Australia “the carve out for employment-related matters is set at far too high a level”.

“We know that whistleblowers too often lose their jobs or their careers from speaking out, so we can’t have a PID scheme that excludes all employment disputes.

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“The bill as drafted would prevent employment matters gaining the benefit of the PID Act, this would seriously limit protections for whistleblowers.”

The AHRC supported the removal of personal work-related conduct from the whistleblower scheme, but recommended requiring agencies to investigate or refer such complaints.

In a joint submission the Human Rights Law Centre, Prof AJ Brown, and Transparency International called for a “comprehensive approach”, including expanding whistleblower protections in the private sector.

They called for parliamentary staff to gain protection of the Public Interest Disclosure Act, which was also a recommendation of Kate Jenkins’ Setting the Standard report.

Victoria’s Independent Broad-based Commission Against Corruption submitted that while staffers are protected if they disclose wrongdoing to the Nacc, they do not gain the benefit of “witness immunity” unless they are added to the PID Act.

Earlier in January Dreyfus told Guardian Australia that the bill proposes to exclude sexual harassment from the whistleblower regime because “in short there are other processes available for dealing with complaints about [it]”.

On calls to allow parliamentary staff access to the whistleblower regime, Dreyfus said it was “one of the matters that will be considered in the second stage of the reform process”.