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Submission in regards to the
Public Interest Disclosure
and Other Legislation Amendment
(Whistleblower Protections) Bill 2025
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Foreword
Fusion thanks the Attorney-General’s Department for the opportunity to influence the
treatment of whistleblowers in Australia, as they play an enormously important role in
upholding the morality that we expect in our society.
This submission was prepared by John August , a member of the Pirate branch of the Fusion
Party of Australia, with a longtime interest in whistleblowing legislation.
Our Opinion
The legislation is commendable in its attempts to provide a privileged means of
communication, and a means of drawing attention to issues by whistleblowers without
meaning they are in trouble for breaking other laws.
However, there are other areas where problems remain, in that Government officers have
not shown an interest in applying themselves to an investigation, or making full use of
available powers in that investigation. I am not sure whether this is the result of a lack of
resources , or a lack of initiative in using powers which have been granted. Interestingly, in
Senate Hansard for 13 August 2025, Ms Carmen Miragaya reported that 1½ people were
allocated to complaints and investigations. Further, in the case referenced in our submission
on the Whistleblower Protection Authority Bill 2025 , where s 47F(1)
(with the
Ombudsman) closed an investigation into the Australian National University because the
University was illegally ignoring her, it seems possible that with support, she could have
pressed the issue. Clearly, if a department is publicly tasked with an important responsibility,
and then expected to work with one hand tied behind its back, we are going to have
problems.
The ability of a Government department to make use of powers granted to it does not
necessarily mean that the department will actually use those powers when useful in an
investigation. There needs to be both the necessary resources and a culture which
encourages the full pursuit of available means. There are examples of such investigative
initiatives being supported in the Australian Tax Office, but the level of commitment seems
quite arbitrary depending on the Government Department and how seriously Government
itself takes the issue.
We are aware of the case of Prof. Tregear's appeal to the Ombudsman about what he
alleges was serious unlawful conduct, which was not properly engaged with by his university
nor energetically pursued by the ombudsman. We speculate that the goal may have been to
"tick the boxes" to show something has been attempted, rather than actually to pursue a
proper investigation.
For this reason, we are concerned that providing the Ombudsman with excessive,
unaccountable discretion would allow existing problems to persist. The legislation must
address these issues, which are separate from concerns about confidentiality or other legal
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complications. It’s worth noting that this lack of accountability for the Ombudsman has also
been raised by three parliamentary committees:
● The Senate’s Legal and Constitutional Affairs Committee (in the report into the
Whistleblower Protection Authority Bill 2025 , section 1.75 )
● The Senate’s Standing Committee for the Scrutiny of Bills ( Scrutiny Digest 3 of 2025 ,
p9)
● The Parliamentary Joint Committee on Human Rights ( Report 2 of 2025, p5 )
We would like to see any whistleblower initiative be held accountable to both parliamentary
committees and courts for mistakes that might arise in the processing of complaints,
otherwise the legislation will not correct known problems.
Nevertheless, we credit the legislation with at least preventing some problems with how
whistleblowers have attracted further legal trouble to themselves as something a little
positive.
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s 47F(1)
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Receiving Officer
Electronic Frontiers Australia Inc.
xxxxxx.xxx@xxx.xxx.xx
ABN: 35 050 159 188
PO Box 6100
W: www.efa.org.au
Parliament House
E: xxxxx@xxx.xxx.xx
Canberra ACT 2600
By email
28 September 2025
Dear Receiving Officer,
RE: Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Whistleblower
Protection Authority Bill 2025 (No. 2)
EFA welcomes the opportunity to provide the Committee with further commentary on the Whistleblower
Protection Bill 2025(2).
Unfortunately the EFA volunteer board did not have capacity to complete a fulsome submission due to
competing priorities. Instead, we have identified a submission with which EFA is both aligned
supportive.
Please find attached a submission from Professor Peter Tregear OAM. EFA strongly supports Professor
Tregear’s recommendations and submission.
We would welcome the opportunity to provide further commentary if required.
About EFA
Establish ed in Jan uary 1994, EFA is a n ation al, m em bersh ip- based, n ot- for- profit organ isation
represen tin g In tern et users con cern ed with digital freedom s an d righ ts.
EFA is in depen den t of govern m en t an d com m erce, an d is fu n ded by m em bersh ip subscription s an d
don ation s from in dividu als an d organ isation s with an altruistic in terest in prom otin g civil liberties in th e
digital con text.
EFA m em bers an d supporters com e from all parts of Australia an d from diverse back groun ds. Our m ajor
objectives are to protect an d prom ote th e civil liberties of users of digital com m un ication s system s (such as
th e In tern et) an d of th ose affected by th eir use an d to educate th e com m un ity at large about th e social,
political, an d civil liberties issues in volved in th e u se of digital com m un ication s system s.
Yours sincerely,
1
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John Pane
Chair
Electronic Frontiers Australia
2
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PART I – INTRODUCTION
I-A. Introductory comments
[1] These submissions are made in respect of the exposure draft of the Public Interest Disclosure
and Other Legislation Amendment (Whistleblower Protections) Bill 2025 (Bill).1 Specifically, I
shall address, and only address, Schedule 1, Part 1 of the Bill in these submissions.
[2] These submissions, broadly, focus on two themes.
[3] The first is about the failure of the drafters of the Bill to heed concerns, identified in paragraphs
1.74 – 1.76 of the Legal and Constitutional Affairs Committee's report into the Whistleblower
Protection Authority Bill 2025,2 about the immunities from liability of officials in the proposed
Whistleblower Protection Authority.
[4] Those concerns are not without justification.
[5] The second, which relates to the first, is about adequate oversight of the operations of the Office
of the Commonwealth Ombudsman in respect of the Ombudsman's (and the potential
Whistleblower Ombudsman's) exercise of powers and functions. The Bill does not address the fact
that the Commonwealth Ombudsman's operations are virtually inscrutable in respect of the
Ombudsman's dealings with whistleblowers.
[6] The essential point of the second theme is that it is not enough to simply empower an agency to
take certain kinds of actions without providing adequate mechanisms to determine whether those
powers are being exercised as the Parliament intends. One would think that, in the light of the Hon
Catherine Holmes' criticisms, in the Report of the Royal Commission into the Robodebt Scheme,3 of
the Ombudsman's failures to exercise powers as intended by the Parliament that the drafters of the
Bill would have turned their minds to this issue of proper oversight.
[7] While the proposals set out in the Bill are welcome, they fail to address the two systemic
problems identified as relevant themes above.
I-B. Summary of layout and content of submissions
[8] In part II of these submissions, I shall address and assess the drafter's failures to deal with the
immunities from liability of officials in the proposed Bill. In the light of that assessment, I shall
submit a very modest proposal for an amendment to the Ombudsman Act 1976 (Cth).
[9] In part III of these submissions, I shall address and assess the drafter's failures to deal with
issues of oversight of the operations of the Office of the Commonwealth Ombudsman in respect of
the Ombudsman's (and the potential Whistleblower Ombudsman's) exercise of powers and
functions. In the light of that assessment, I shall propose relatively modest statutory interventions
that, in my view, mollify the effects of the unsatisfactory state of affairs that exists in respect of the
1 The bill is accessible here:
https://consultations.ag.gov.au/integrity/public sector whistleblower reforms/user uploads/exposure draft bill-
public_sector_whistleblower_reform.pdf
2 The Legal and Constitutional Affairs Committee's report into the Whistleblower Protection Authority Bill 2025 (No
2) is accessible here:
https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/RB000652/toc_pdf/WhistleblowerProtectionAu
thorityBill2025.pdf
3 The Hon Catherine Holmes AC SC, Report of the Royal Commission into the Robodebt Scheme (2023), chapter 21
<https://robodebt.royalcommission.gov.au/publications/report>.
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Commonwealth Ombudsman's administration of the Public Interest Disclosure Act 2013 (Cth)
regime.
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PART II – IMMUNITIES FROM LIABILITY
II-A.
Immunities from liability under the Whistleblower Protection Authority Bill 2025 (No 2)
[10] Clause 64 of the Whistleblower Protection Authority Bill 2025 (No 2) was worded as follows:4
64 Immunity from civil proceedings for staff members of the Authority and persons
assisting
(1) A staff member of the Authority is not liable to civil proceedings in relation to an
act done, or omitted to be done, in good faith, in the performance or purported
performance, or exercise or purported exercise, of the staff member’s functions,
powers or duties under, or in relation to, this Act.
(2) A person whom the Commissioner requests, in writing, to assist a staff member of
the Authority is not liable to civil proceedings in relation to an act done, or omitted to
be done, in good faith for the purpose of assisting the staff member.
II-B. Concern
s about i mmunities from liability under the Whistleblower Protection Authority
Bill 2025 (No 2)
[11] As the Senate's Legal and Constitutional Affairs Committee noted in its report on the
Whistleblower Protection Authority Bill 2025 (No 2), clause 64 of the Whistleblower Protection
Authority Bill 2025 (No 2) posed concerns for the Senate's Standing Committee for the Scrutiny of
Bills. Specifically, in Scrutiny Digest 3 of 2025, the Senate's Standing Committee for the Scrutiny
of Bills raised “scrutiny concerns under … clause 64 in relation to immunity from liability.”5
[12] The Senate's Legal and Constitutional Affairs Committee also noted, in its report on the
Whistleblower Protection Authority Bill 2025 (No 2), that the Whistleblower Protection Authority
Bill 2025 (No 2) “appears to engage and may limit human rights.”6
II-C. The actual state of immunities possessed by the Commonwealth Ombudsman and his
officials in respect of consideration of complaints about inadequate whistleblower disclosure
investigations
[13] Legitimate concerns were raised about the immunities that were to be granted to the
Whistleblower Protection Commissioner and those supporting that Commissioner.
[14] Ironically, those very immunites, which were the subject of concern for both the Senate's
Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human
Rights, have been granted to the Commonwealth Ombudsman, and the officials who support him,
by the Commonwealth Parliament. Specifically, section 33 of the Ombudsman Act 1976 (Cth)
provides:
4 The Whistleblower Protection Authority Bill 2025 (No 2) is accessible here:
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills
%2Fr7301 first-reps%2F0000%22;rec=0
5 Standing Committee for the Scrutiny of Bills, Scrutiny Digest No 3 of 2025 (27 March 2025), page 9.
The digest is accessible here:
https://www.aph.gov.au/-/media/Committees/scrb_ctte/reports/2025/Scrutiny_Digest_3_of_2025/report/Scrutiny_Di
gest 3 of 2025.pdf
6 Senate Legal and Constitutional Affairs Committee, Report into Whistleblower Protection Authority Bill 2025 (29
August 2025), page 17.
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33 Ombudsman not to be sued
(1) Subject to section 35, neither the Ombudsman nor a person acting under his or
her direction or authority is liable to an action, suit or proceeding for or in relation to
an act done or omitted to be done in good faith in exercise or purported exercise of
any power or authority conferred by this Act or Division 7 of Part V of the Australian
Federal Police Act 1979.
(2) A reference in this section to the Ombudsman includes a reference to a Deputy
Ombudsman or a delegate of the Ombudsman.
[15] Clause 64 of the Whistleblower Protection Authority Bill 2025 (No 2), which is in substantially
identical language to section 33 of the Ombudsman Act 1976 (Cth), warranted concern for the Legal
and Constitutional Affairs Committee, Standing Committee for the Scrutiny of Bills and the
Parliamentary Joint Committee on Human Rights, yet nowhere in the Public Interest Disclosure and
Other Legislation Amendment (Whistleblower Protections) Bill 2025 are the immunities in section
33 the Ombudsman Act 1976 (Cth) addressed.
II-D.
What section 33 of the Ombuds
man Act 1976 (Cth) entails
II-D1. Judicial review for acts done, or omissions made, that are not in good faith
[16] In essence, section 33 of the Ombudsman Act 1976 (Cth) limits the liability of the
Commonwealth Ombudsman, or people acting under his direction or authority, to acts done or
omitted to be done in good faith.7
[17] I note that it is no purpose of these submissions to educate the Committee on the mechanisms,
history or development of the law of judicial review, both at common law and under statute, in
Australia.
[18] I take for granted that the reader of these submissions is aware that:
a) since the passage of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
(ADJR Act), a statutory scheme for judicial review has existed in respect of the decisions of
the Commonwealth's administrative decision makers;8 and
b) applications for judicial review of acts not done, or omissions not made, in good faith by
officials of the Commonwealth may be submitted to courts of competent jurisdiction under
the ADJR Act.9
[19] Strictly speaking, the ADJR Act provides that an improper exercise of power extends to an
7 Separately, there are the entrenched rights of review, set out in section 75 of the Constitution, for jurisdictional error.
Jurisdictional error is the only other ground of judicial review.
8 Aside from the outstanding academic works on judicial review in Australia, which are too many to even consider
mentioning, I commend the following reports to the Committee:
a) Commonwealth Administrative Review Committee Report 1971, Parliamentary Paper No 144 of 1971;
and
b) Prerogative writ Procedures: Report of Committee of Review, Parliamentary Paper No 56 of 1973.
The interim and final reports of the Bland Committee are also recommended.
9 e.g. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e) and 5(2)(d).
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exercise of a discretionary power in bad faith.10 It does not follow that an act not done, or an
omission not made, in good faith is necessarily an exercise of power in bad faith.
[20] That said, in respect of an analogous immunity provision in the Ombudsman Act 1976 (Cth),11
the Full Court of the Federal Court of Australia took for granted that liability for “an act done or
omitted to be done in good faith” is to be understood as liability for an act done, or omitted to be
done, in bad faith.12 In the light of the canons of statutory interpretation and the judgment of the
Full Court of the Federal Court of Australia, the sense in which liability is to be ascribed for “an act
done, or omitted to be done, in good faith” in the Bill is synonymous with bad faith for the purposes
of the ADJR Act.
II-D2. What are acts done, or omissions made, in bad faith
[21] Under Australian law, allegations of bad faith are not to be lightly made.13
[22] Allegations of bad faith must be clearly alleged and proved.14
[23] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross
the negligence. A decision maker cannot blunder into bad faith, no matter how stupid and careless
the tribunal member is, any more than a person can blunder into deceit or wilful blindness.15
[24] Illogical factual findings or procedural blunders along the way will usually not be sufficient to
base a finding of bad faith.16
[25] Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a
lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of
the tribunal or officer in question.17
[26] Bad faith is a serious matter involving personal fault on the part of the decision-maker going
beyond the errors of fact or law which are inevitable in any such process.18 There is no such thing as
deemed or constructive bad faith.19
[27] Cases in which bad faith is established will be rare and extreme.20
II-D3. The Bill fails to address the concerns of three parliamentary committees about limiting
the access of whistleblowers to the judiciary
II-D3.1. Introduction
10 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2)(d).
11 Ombudsman Act 1976 (Cth), s 33. The provision provides that “neither the Ombudsman nor a person acting under
under his or her direction or authority is liable to an action, suit or proceeding for or in relation to an act done or
omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Act ...”
12 Paschke v Secretary, Department of Social Services [2023] FCAFC 143, [22]. For a clear and concise statement on
the senses in which the expressions “good faith” and “bad faith” are deployed in the law, please refer to the
Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32, [11] – [13].
13 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, [43].
14 Ibid. Also refer to SZQBN v Minister for Immigration and Citizenship (2013) 213 FCR 297, [63], where the Full
Court of the Federal Court that allegations of bad faith must be pleaded specifically and with particularity.
15 NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210, [24].
16 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, [8].
17 NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, [24]
18 SBAP v Refugee Review Tribunal [2002] FCA 590, [49].
19 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, [8].
20 Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394, [32].
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[28] Under the Bill, whistleblowers are still restricted to sustaining actions against officials in the
Office of the Commonwealth Ombudsman to the ground of bad faith under the Ombudsman Act
1976 (Cth).21 That is irrespective of the functions that the proposed Whistleblower Ombudsman will
exercise.
[29] In other words, whether the function is that of:
a) the very rare circumstance where officials in the Office of the Commonwealth
Ombudsman investigate whistleblower disclosures made under the Public Interest
Disclosure Act 2013 (Cth);22 or
b) the relatively more common circumstance where officials in the Office of the
Commonwealth Ombudsman investigate complaints about the adequacy of investigations,
conducted by officials in agencies to which disclosures have been made or allocated, of
whistleblower disclosures made under the Public Interest Disclosure Act 2013 (Cth),
whistleblowers are restricted to sustaining actions at law, against officials in the Office of the
Commonwealth Ombudsman, to the ground of bad faith.
[30] Limiting a whistleblower's access to the judiciary on the limited ground of bad faith is
regrettable because cases in which bad faith will be established are rare and extreme.
[31] More often than not, decisions detrimentally affecting a whistleblower will be based on errors
of law.
[32] In the context of the Bill, there is nothing in the Bill, or the overview of the Bill,23 that sheds
any light on why the drafters of the Bill have failed to take seriously the concerns of three
parliamentary committees on the issue of providing blanket immunities to the authority responsible
for dealing with complaints about inadequate investigations in respect of whistleblower disclosures
made under the Public Interest Disclosure Act 2013 (Cth).
[33] Despite the concerns of those parliamentary committees, the drafters of the Bill appear to have
dismissed those concerns as unwarranted, and appear content to deny whistleblowers access to the
judiciary to remedy errors in respect of unlawful administrative decisions.
[34] Why whistleblowers should be denied access to the judiciary to remedy errors of law made by
the Commonwealth Ombudsman, the proposed Whistleblower Ombudsman, or those acting under
the authority or direction of the Commonwealth Ombudsman is not clear.
II-D3.2. An assessment of the justification for limiting the access of a whistleblower to the judiciary
to decisions made in bad faith
[35] In the ordinary course, errors of law would be capable of remedy because a person aggrieved
by an unlawful decision would be entitled to apply to the Federal Court of Australia or Division 2 of
21 Ombudsman Act 1976 (Cth), s 33.
22 See, for example, Agency Guide to the Public Interest Disclosure Act 2013 (Cth), Version 3, paragraph 2.6.2.
The Agency Guide to the Public Interest Disclosure Act 2013 (Cth), Version 3, is accessible here:
https://www.ombudsman.gov.au/complaints/public-interest-disclosure-whistleblowing/tools-and-resources
23 The overview of the Bill is accessible here:
https://consultations.ag.gov.au/integrity/public sector whistleblower reforms/user uploads/explanatory material-
public sector whistleblower consultation.pdf
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the Federal Circuit and Family Court of Australia for judicial review on account of an error of law.24
[36] Unfortunately, whistleblowers are denied this general statutory right to apply for judicial
review in respect of legally erroneous decisions made by officials in the Office of the
Commonwealth Ombudsman because neither the Ombudsman nor a person acting under his or her
direction or authority is liable to an action, suit or proceeding for or in relation to an act done or
omitted to be done in good faith in exercise or purported exercise of any power or authority
conferred by the Ombudsman Act 1976 (Cth).25
[37] That is because, as the lamented Gyles J so deftly put it, a decision-maker cannot blunder into
bad faith, no matter how stupid or careless the person is, any more than a person can blunder into
deceit or wilful blindness.26 Bad faith is not just a matter of poor execution or poor decision-making
involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting
personal criticism of the tribunal or officer in question.27
[38] In other words, no matter how stupid or careless the person is who makes the error, it will not
constitute bad faith without a demonstration that the relevant official's actions or omissions lacked
an honest or genuine attempt to undertake the task in a way meriting personal criticism. This is all
but impossible.28
[39] But why should a whistleblower's right to remedy an error made by the Commonwealth
Ombudsman, the proposed Whistleblower Ombudsman, or persons acting under the authority or
direction of the Commonwealth Ombudsman, be premissed on the intentions of a decision-maker?
[40] It makes no difference to the consequences of an error whether or not a decision-maker has
made an error in good faith or in bad faith; the error is real and affects the whistleblower.
[41] The focus shifts from lawfully dealing with the wrongdoing underlying the disclosure, which is
the primary purpose of whistleblower legislation like the Public Interest Disclosure Act 2013 (Cth),
to the state of mind of the person dealing with the disclosure of wrongdoing.
[42] The state of mind of a person investigating a disclosure made under the Public Interest
Disclosure Act 2013 (Cth), or a complaint about the inadequate investigation of a whistleblower
disclosure made under the Public Interest Disclosure Act 2013 (Cth), is of no practical relevance to
dealing effectively with wrongdoing in the Commonwealth.
[43] It is also worth noting that the inability to effectively institute proceedings, in the Federal Court
of Australia or Division 2 of the Federal Circuit and Family Court of Australia, for judicial review
against officials in the Office of the Commonwealth Ombudsman on account of an error of law in
respect of decisions relating to public interest disclosures is, aside from being regrettable,
incongruous.
[44] Under the Public Interest Disclosure Act 2013 (Cth), while a decision-maker is not liable to
criminal or civil proceedings for or in relation to an act or matter done, or omitted to be done, in
good faith,29 a whistleblower's right to apply to a court, under the Administrative Decisions
(Judicial Review) Act 1977 (Cth), in relation to a decision made under the Public Interest
24 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(f).
25 Ombudsman Act 1976 (Cth), s 33(1).
26 NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210, [24].
27 NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, [24]
28 Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394, [32].
29 Public Interest Disclosure Act 2013 (Cth), s 78(1).
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Disclosure Act 2013 (Cth) is unaffected.30
[45] In other words, a person aggrieved by the decision of a decision-maker acting, or purportedly
acting, under the Public Interest Disclosure Act 2013 (Cth) is still entitled to apply for judicial
review under the ADJR Act.
[46] Indeed, a whistleblower's right to apply to a court, under the Administrative Decisions (Judicial
Review) Act 1977 (Cth), in relation to a decision made under the Public Interest Disclosure Act
2013 (Cth), is pointedly addressed in Schedule 2 of the Bill and on page 15 of the overview of the
Bill.
[47] Why should a whistleblower not be able to sustain an action for judicial review in respect of
errors made by the Commonwealth Ombudsman, the proposed Whistleblower Ombudsman, or
officials acting with the authority or under the direction of the Commonwealth Ombudsman, when
investigating inadequate public interest disclosures, when whistleblowers have a right to apply for
judicial review in respect of the substantively erroneous decisions made by the investigator acting,
or purporting to act, under the Public Interest Disclosure Act 2013 (Cth)?
[48] Obviously, the justification cannot be that the substance of a public interest disclosure should
be kept from the judiciary; whistleblowers are able to seek judicial review of the substantive
decision made, or purportedly made, under the Public Interest Disclosure Act 2013 (Cth).
[49] Considering the concerns raised, by three parliamentary committees, about the immunities
from suit or action proposed for the Whistleblower Protection Commissioner, or those acting with
the authority or under the direction of the Commissioner, it beggars belief that substantively
identical immunities have been left intact in respect of the actions or omissions of Commonwealth
Ombudsman, the proposed Whistleblower Ombudsman, or those acting with the authority or under
the direction of the Commonwealth Ombudsman.
II-E. Pr
oposed legislative amendment to the Ombuds
man Act 1976 (Cth) in respect of
immunities
II-E1. Amending section 33 of the Ombudsman Act 1976 (Cth)
[50] As it stands, subsection 33(1) of the Ombudsman Act 1976 (Cth) provides that “neither the
Ombudsman nor a person acting under under his or her direction or authority is liable to an action,
suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or
purported exercise of any power or authority conferred by this Act ...”
[51] The Ombudsman Act 1976 (Cth) ought to be amended so that while the Ombudsman or a
member of his staff is not liable to criminal or civil proceedings for or in relation to an act or matter
done, or omitted to be done, in good faith, a whistleblower shall have a right to apply to a court,
under the Administrative Decisions (Judicial Review) Act 1977 (Cth), in relation to the
Ombudsman's or his delegate's, decision in respect of complaints about inadequately investigated
disclosures under the Public Interest Disclosure Act 2013 (Cth).
[52] By way of example, the relevant provision (e.g. section 33A of the Ombudsman Act 1976
(Cth)) might read something like this:
1) A person who is:
30 Public Interest Disclosure Act 2013 (Cth), s 78(3).
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a) the Commonwealth Ombudsman; or
b) the Deputy Commonwealth Ombudsman; or
c) a person acting under the direction or authority of the Commonwealth
Ombudsman or the Deputy Commonwealth Ombudsman,
is not liable to any criminal or civil proceedings, or any disciplinary action (including
any action that involves imposing any detriment), for or in relation to an act or matter
done, or omitted to be done, in good faith:
d) in the performance, or purported performance, of any function conferred
on the person by the Ombudsman Act 1976 (Cth) or section 55 of the Public
Interest Disclosure Act 2013 (Cth); or
e) in the exercise, or purported exercise, of any power conferred on the person
by the Ombudsman Act 1976 (Cth) or section 55 of the Public Interest
Disclosure Act 2013 (Cth).
2) This section does not apply to a breach of a designated publication restriction under the
Public Interest Disclosure Act 2013 (Cth).
3) This section does not affect any rights conferred by the Administrative Decisions
(Judicial Review) Act 1977 (Cth) to apply to a court, or any other rights to seek a review by
a court or tribunal, in relation to:
a) a decision; or
b) conduct engaged in for the purpose of making a decision; or
c) a failure to make a decision.
(4) An expression used in subsection (3) has the same meaning as in section 10 of the
Administrative Decisions (Judicial Review) Act 1977 (Cth).
[53] This amendment would ensure that the right of a whistleblower to submit an application for
judicial review of a decision, or conduct, or failures of the Ombudsman, or one of his officials, in
respect of a complaint about an inadequately handled disclosure investigation under the Public
Interest Disclosure Act 2013 (Cth) broadly mirrors the right of whistleblowers to seek judicial
review of decisions, or conduct, or failures of officials exercising powers or functions Public
Interest Disclosure Act 2013 (Cth).
II-E2. Filing applications for judicial review under the Administrative Decisions (Judicial
Review) Act 1977 (Cth)
[54] The filing fees for applications for judicial review under the Administrative Decisions (Judicial
Review) Act 1977 (Cth) are set out in the Federal Court and Federal Circuit and Family Court
Regulations 2022 (Cth).
[55] Those regulations are made by the Governor-General on the advice of the Federal Executive
Council.
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[56] The Governor-General would be able to, on the advice of the Federal Executive Council, set
the filing fee for an application under the ADJR Act in respect of:
a) decisions, or conduct, or failures of officials exercising powers or functions Public
Interest Disclosure Act 2013 (Cth); or
b) decisions, or conduct, or failures of the Ombudsman or his officials exercising powers or
functions, under the Ombudsman Act 1976 (Cth) or section 55 of the Public Interest
Disclosure Act 2013 (Cth), in relation to complaints about inadequately investigated
whistleblower disclosures under the Public Interest Disclosure Act 2013 (Cth),
at whatever price the Federal Executive Council deems fit.
[57] The relevant filing fee should mirror the filing fee for applications under section 46PO or 46PP
of the Australian Human Rights Commission Act 1986 (Cth), which is set at $55.00.31
[58] That figure is paltry enough to be met by just about anybody in the country. Naturally,
impecunious litigants will be able to avail themselves of the exemption provisions in the Federal
Court and Federal Circuit and Family Court Regulations 2022 (Cth) if they are unable to pay the
$55.00 filing fee.32
II-E3. Shifting the costs burden
[59] In submissions made in response to the Attorney-General's Department's consultation paper,
Public sector whistleblowing reforms: Stage 2 - reducing complexity and improving the
effectiveness and accessibility of protections for whistleblowers, Mr Iain Anderson, the
Commonwealth Ombudsman made the following submission:33
The HRLC Report also identified legal costs as a significant deterrent to potential
whistleblowers and impost on actual whistleblowers. While increased targeted funding
(discussed further below) is one way to address that impact, another way to provide a similar
effect is through legislative reform.
A new presumption could be inserted into the PID Act to provide for legal costs to be
covered by the Commonwealth unless there are exceptional circumstances. A model for such
an approach is set out in s 66 of the Freedom of Information Act 1982 which provides a
tribunal may exercise a discretion to recommend costs be paid by the Commonwealth in
certain circumstances.
[60] On principle, I support the Ombudsman's submission to shift the burden for legal costs to the
Commonwealth where are whistleblower submits an application under the ADJR Act in respect of:
a) decisions, or conduct, or failures of officials exercising powers or functions Public
Interest Disclosure Act 2013 (Cth); or
b) decisions, or conduct, or failures of the Ombudsman or his officials exercising powers or
functions, under the Ombudsman Act 1976 (Cth) or section 55 of the Public Interest
31 Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth), Schedule 1, items 102 and 202.
32 Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth), Div 2.3.
33 Iain Anderson, Public sector whistleblowing reforms: Stage 2 - reducing complexity and improving the effectiveness
and accessibility of protections for whistleblowers, January 2024, page 13,
<https://consultations.ag.gov.au/integrity/pswr-stage2/consultation/view respondent?uuId=923521142 > (accessed
on 30 June 2025).
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Disclosure Act 2013 (Cth), in relation to complaints about inadequately investigated
whistleblower disclosures under the Public Interest Disclosure Act 2013 (Cth).
[61] I submit that both the Public Interest Disclosure Act 2013 (Cth) and the Ombudsman Act 1976
(Cth) should be amended so that it is clear that, where the whistleblower applicant succeeds on the
application, the starting point for the costs order that flows from an application for judicial review is
that the whistleblower applicant is to be awarded costs on an indemnity basis, subject to respondent
having a right to apply to the Court to request a diminution to the indemnity costs on account of the
unreasonable conduct of proceedings by the applicant whistleblower (e.g. the applicant spitefully or
unnecessarily running up costs, the applicant's conduct causing unnecessary delay to the litigation
etc.).
[62] I will not advance submissions in respect of costs burdens where a whistleblower applicant
does not succeed on an application under the ADJR Act in respect of:
a) decisions, or conduct, or failures of officials exercising powers or functions Public
Interest Disclosure Act 2013 (Cth); or
b) decisions, or conduct, or failures of the Ombudsman or his officials exercising powers or
functions, under the Ombudsman Act 1976 (Cth) or section 55 of the Public Interest
Disclosure Act 2013 (Cth), in relation to complaints about inadequately investigated
whistleblower disclosures under the Public Interest Disclosure Act 2013 (Cth).
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PART III – DEFICIENT INDEPENDENT ADMINISTRATIVE AND
PARLIAMENTARY OVERSIGHT
II
I-A. Introductory comments
[63] Part II of these submissions dealt with the failures, on the parts of the drafters of the Bill, to
address the concerning state of affairs denying whistleblowers access to the judiciary for anything
other than jurisdictional error or bad faith in respect of decisions made by the Commonwealth
Ombudsman, or officials acting under the authority or under the direction of the Commonwealth
Ombudsman.
[64] Part III of these submissions will address:
a) the absence of the salutary and much needed proposal, which was put forward by the
drafters of the Whistleblower Protection Authority Bill 2025 (No 2), for parliamentary
oversight of the operations of a whistleblower authority (in the case of the Bill, the Office of
the Commonwealth Ombudsman (through a Whistleblower Ombudsman)); and
b) the absence of independent administrative oversight in respect of the operations of a
whistleblower authority.
[65] As these submissions unfold, it will become clear that, while the reforms set out in the Bill are
welcome, the reforms set out in the Bill do not address the problems that gave rise to the calls for
reform and the Whistleblower Protection Authority Bill 2025 (No 2).
III-B. The importance of independent and effective administrative oversight of the operations
of the Commonwealth Ombudsman, in respect of his complaints administration functions for
the
Publi
c Interest Disclosure Act 2013 (Cth) scheme
III-B1. Introductory comment
[66] The importance of having an independent and effective form of administrative oversight of the
operations of the Commonwealth Ombudsman, in respect of the Commonwealth Ombudsman's
administration of complaints arising from inadequate or improper disclosure investigations under
the Public Interest Disclosure Act 2013 (Cth), will be made clear in the light of a case study.
III-B2. Complaint to the Commonwealth Ombudsman about an inadequate whistleblower
disclosure investigation
III-B2.1. I complained to the Office of the Commonwealth Ombudsman following an inadequate
investigation of a whistleblower complaint
[67] I was formerly the head of the Music School at the Australian National University.
[68] I made a whistleblower disclosure under the Public Interest Disclosure Act 2013 (Cth) about
disclosable conduct.
[69] Without going into the details of the whistleblower disclosure, after encountering much
difficulty with senior administrators in the Australian National University, following concerns
raised by the Office of the Commonwealth Ombudsman, the management of the Australian National
University made arrangements for officials from Deloitte to investigate the whistleblower
disclosure that I had made on behalf of the Australian National University.
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[70] I was particularly troubled by the way that the investigators engaged by the Australian National
University handled the whistleblower disclosure that I had made. I lodged a complaint with the
Office of the Commonwealth Ombudsman about the handling of the whistleblower disclosure I had
made.
[71] I noted, in my complaint, that the investigators had recorded denigratory remarks about me in
their investigation report and that I had been denied an opportunity to respond or rebut those
denigratory remarks.
[72] Essentially, I was denied procedural fairness.34
III-B2.2. The essentials of the Commonwealth Ombudsman's investigation
[73] On 21 September 2020, s 47F(1)
a delegate of the Commonwealth Ombudsman
wrote to me about the outcome of an investigation, under the Ombudsman Act 1976 (Cth), into the
manner in which a disclosure investigation was conducted, by officials contracted by the Australian
National University, under the Public Interest Disclosure Act 2013 (Cth).35
[74] The essentials of s 47F(1)'s investigation were:
a) the Australian National University engaged an external investigator (the consultancy firm
Deloitte) to investigate the substance of a public interest disclosure that I made under the
Public Interest Disclosure Act 2013 (Cth); and
b) a report was prepared by the investigator for the purposes of the Public Interest
Disclosure Act 2013 (Cth); and
c) the report prepared by the investigator for the purposes of the Public Interest Disclosure
Act 2013 (Cth) was provided to s 47F(1) upon her request;36
d) the investigator included assessments about my character in the public interest disclosure
report, and that those assessments of character included that I was “untrainable” and that “he
is a liar [and] a manipulator”; and
e) I took exception to the inclusion of those adverse assessments of character in the public
interest disclosure report, and raised the inclusion of those adverse character assessments as
34 This is not merely a personal opinion.
The Australian National University's own Procedure: public interest disclosure materials, which is published on the
University's website <https://policies.anu.edu.au/ppl/document/ANUP 006403>, explicitly sets out, at paragraph 73
under the subheading “Procedural fairness”, that “[w]here the investigator in preparing the report of their
investigation proposes to:
a) make a finding of fact, or
b) express an opinion that is adverse to the discloser, to a Public Official who is the subject of the disclosure or
to another person: the investigator or delegate must give the person who is the subject of that proposed finding
or opinion a copy of the evidence that is relevant to that proposed finding or opinion and must give the person
a reasonable opportunity to comment on it.”
By the standards acknowledged in the Australian National University's own procedural materials, I was denied
procedural fairness.
35 The investigation report is annexed to these submissions – see pages 34 – 35.
36 In the Ombudsman's investigation notice, s 47F(1) states “[a]t our request, the ANU provided our Office with an
unredacted copy of the report and records of witness interviews”: see page 34.
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a ground of complaint; and
f) s 47F(1) “requested additional information from the ANU to enable [the Office of the
Commonwealth Ombudsman] to better understand what evidence the investigator
considered in reaching particular conclusions, and if the investigator did not consider or give
weight to certain material or allegations, why”;37 and
g) despite issuing requests, “on a number of occasions between April and August 2020”,38
for the additional information to assist with s 47F(1)'s investigation, officials at the
Australian National University “did not provide a response”;39 and
h) s 47F(1) chose to advance consideration of my complaint in the absence of the
information requested from the Australian National University;40 and
i) s 47F(1) “formed the view that the investigation report [prepared by the ANU's
investigator] did not adequately explain the basis for some of the investigator's finding”;41
and
j) despite claiming that she would “progress [the Ombudsman's] investigation of [the]
complaint based on the information available to [the Ombudsman]”, s 47F(1) claimed it
was “difficult for [her] to be satisfied that the [ANU] investigator's findings were reasonably
open” for the investigator to make on account of the ANU not complying with the
Ombudsman's repeated requests for information.42
[75] s 47F(1) terminated the investigation under the Ombudsman Act 1976 (Cth) because, in the
light of the ANU's failure to respond to requests for information, she “did not think that further
investigation would be likely to result in a different outcome for [me]”.43
III
-B2.3. An assessment of the essentials of s 47F(1)
's investigation, under the
Ombudsma
n Act 1976 (Cth), of my complaint about the manner in which a disclosure investigation
i s conducted under the Public
Interest Disclosure Act 2013 (Cth)
[76] Several glaring errors leap out from the two page decision notice that s 47F(1) provided to
me.
[77] Parliament has explicitly provided the Commonwealth Ombudsman with the authority to
investigate matters.44
[78] From the very inception of the Office of the Commonwealth Ombudsman,45 as part of the
investigative powers conferred on the Commonwealth Ombudsman, the Parliament granted the
Ombudsman the power to compel a person to furnish information, or produce documents or other
37 See page 34.
38 See pages 34 – 35.
39 See page 35.
40 In the Ombudsman's investigation notice, s 47F(1) states “[i]n the circumstances, we decided to progress our
investigation of your complaint based on the information available to us”: see page 34.
41 See page 35.
42 In the Ombudsman's investigation notice, s 47F(1) states “[a]s the ANU did not provide us with the additional
information we requested, it was difficult for us to be satisfied that the investigator's findings were reasonably
open”: see page 35.
43 See page 35.
44 Ombudsman Act 1976 (Cth), s 8.
45 Act No 181 of 1976.
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records, relevant to an investigation under the Ombudsman Act 1976 (Cth).46
[79] In this instance, s 47F(1)
requested that officials in the ANU provide information in
furtherance of the investigation commenced under section 8 of the Ombudsman Act 1976 (Cth).47
By her own admission, despite issuing requests, “on a number of occasions between April and
August 2020”, for information to assist with the investigation under the Ombudsman Act 1976
(Cth), officials at the Australian National University “did not provide a response.”48
[80] It beggars belief that, in the face of such shameless disdain for the authority of the Office of the
Commonwealth Ombudsman, the Ombudsman's delegate did not, following the refusal to comply
with the request for information, compel the production of the information.
[81] I am immediately reminded of the the Hon Catherine Holmes' criticisms of the Office of the
Commonwealth Ombudsman in her report of the Royal Commission into the Robodebt Scheme.
Specifically, the Royal Commissioner noted the following:49
The responses to requests made for information in the 2017 own motion investigation
warranted the use of the s 9 powers in the Ombudsman Act, particularly the associated
power to examine on oath, to compel answers as to why the obvious inconsistencies and
deficiencies in production of information were occurring and to require production of the
documents which were so obviously missing.
[82] In the case of Robodebt, at least officials in the Department of Social Services feigned an
interest in cooperating with the Office of the Commonwealth Ombudsman. Officials at the
Australian National University did not even dignify s 47F(1)'s requests about the investigation of
my public interest disclosure with a response.
[83] How much more contumelious must the conduct of officials be in response to a request for
information before the Commonwealth Ombudsman, or his delegates, decide to exercise the powers
to compel the production of information or documents, particularly in the light of the Ombudsman's
investigative role?
[84] That is not the worst of it.
[85] s 47F(1) stated, in her reasons for decision, that, in the light of the failure of officials
providing information in response to her requests, she would “progress [the Ombudsman's]
investigation of [the] complaint based on the information available to [the Ombudsman].”50 But s 47F(1)
did no such thing.
[86] Rather than “progress [the Ombudsman's] investigation of [the] complaint based on the
information available to [the Ombudsman]”, s 47F(1) reasoned that:
a) “it was unclear whether [Peter Tregear] had been given an opportunity to respond to” the
“comments 'he is a liar, a manipulator' and 'untrainable' having been included in the
investigation report”; and
46 Ombudsman Act 1976 (Cth), s 9(1).
47 Presumably, s 47F(1) was relying on subsection 8(3) of the Ombudsman Act 1976 (Cth), which provides that “the
Ombudsman may, for the purposes of this Act, obtain information from such person, and make such inquiries, as he
or she thinks fit.”
48 See page 35.
49 The Hon Catherine Holmes AC SC, Report of the Royal Commission into the Robodebt Scheme (2023), page 581
<https://robodebt.royalcommission.gov.au/publications/report>.
50 See page 35.
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b) “[a]s the ANU did not provide us with the additional information we requested, it was
difficult for us to be satisfied that the investigator's findings were reasonably open”; and
c) therefore, the investigation would be terminated because the delegate did “not think that
further investigation would be likely to result in a different outcome.”
[87] The inadequacies in s 47F(1)'s reasoning are disturbing.
[88] s 47F(1) did not “progress [the Ombudsman's] investigation of [the] complaint based on the
information available to [the Ombudsman].” Had s 47F(1) done so, she would have concluded
that the evidence of the adequacy of the investigation was lacking, and, on the basis of the
information before her, concluded that the investigation did not meet the requirements of procedural
fairness.
[89] Instead:
a) s 47F(1) claimed that the information before her was not sufficient for her “to be
satisfied that the investigator's findings were reasonably open” to be made; and
b) despite requesting information from the ANU under section 8 of the Ombudsman Act
1976 (Cth), and having her request ignored repeatedly, s 47F(1) chose not to exercise the
powers that Parliament had explicitly granted to the Ombudsman and, by virtue of the
authority to delegate that power, his delegates to compel the production of relevant
information under section 9 of the Ombudsman Act 1976 (Cth); and
c) on account of the dearth of information relevant to the investigation commenced under
section 8 under the Ombudsman Act 1976 (Cth), which was of s 47F(1)'s making given
that it was well within her power to compel the production of the information (should it have
existed), s 47F(1) claimed that there was inadequate evidence for her “to be satisfied that
the investigator's findings [about Peter Tregear] were reasonably open”; and
d) s 47F(1) leapt to the conclusion that “further investigation would [not] be likely to
result in a different outcome”, thus justifying the termination of the investigation under
section 12 of the Ombudsman Act 1976 (Cth).
[90] Despite the obvious fallacies of reasoning, s 47F(1) washed her hands of the complaint
because, as I construe her reasons, investigating the matter according to law became an
inconvenience.
III
-B2.4. An independent oversight authority to complain to about the failures of officials in the
Office of the Commonwealth Ombudsman
[91] For the reasons set out in part II of these submissions, the Bill fails to address the prima facie
concerns of three parliamentary committees about the immunities from legal action granted to the
Commonwealth Ombudsman and his officials. As it stands, for the reasons set out in part II of these
submissions, there is virtually no prospect for sustaining an application for judicial review of
unlawful decisions made by officials in the Office of the Commonwealth Ombudsman unless those
decisions rise to the level of jurisdictional error or a decision made in bad faith.
[92] Beside that fact that there is no meaningful avenue for judicial review, there is no prospect for
a whistleblower aggrieved by the unsatisfactory conduct of officials in the Office of the
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Commonwealth Ombudsman to lodge an application for review of the merits of an unsatisfactory
decision with an independent and transparent administrative body. The Bill does nothing to address
this glaring deficiency.
[93] Aside from the fact that the immunities from legal action will extend to the decisions of the
proposed Whistleblower Ombudsman, the Whistleblower Ombudsman will not be independent of
the Office of the Commonwealth Ombudsman, and will not offer any independent oversight of the
operations of staff in the Office of the Commonwealth Ombudsman.
[94] Under the Bill, the proposed Whistleblower Ombudsman will be nothing more than a glorified
member of the Commonwealth Ombudsman's staff. Indeed, the “reforms” set out in the Bill could
just as easily be effected without any reference to a “Whistleblower Ombudsman”.
[95] The real problems facing the Office of the Commonwealth Ombudsman are both structural and
cultural, and will not be remedied by the Bill.
[96] The Commonwealth Ombudsman's office has a problem in respect of attracting high quality
public servants to undertake the functions of that office. The Commonwealth Ombudsman's failures
during unlawful Robodebt debacle is a testament to that fact.51 But, as my case study demonstrates,
the Commonwealth Ombudsman's failures during the Robodebt debacle are not an isolated incident.
[97] There is a culture of weakness and torpor in the Office of the Commonwealth Ombudsman,
and that degenerate culture has become something of an entitlement amongst the Ombudsman's
officials because, in the light of statutory immunities from legal action, the Commonwealth
Ombudsman and his officials have, by the Federal Parliament, been empowered to turn a blind eye
to administrative failures (in my case, the failures of the ANU's investigators to provide me with
procedural fairness) with impunity.
[98] The Bill does nothing to address the structural and cultural problems that, in great measure, if
inadvertently, have been entrenched in that office by poor decisions in the legislative process.
III-B3. Empowering an effective and independent Whistleblower Ombudsman (i.e. Inspector)
– proposals for reform
III-B3.1. Introduction
[99] Just as the National Anti-Corruption Commissioner has an inspector, so too, I submit, should
there be an inspector for the public interest disclosure scheme. The title of the inspector is of little
significance. The inspector could be referred to as the “Whisteblower Ombudsman”.
[100] While I could adopt that nomenclature, it is, for the sake of clarity, more sensible to refer to
the independent official who has responsibility for administrative oversight of the Commonwealth
Ombudsman's operations under the Public Interest Disclosure Act 2013 (Cth) as “the Inspector” to
avoid potential confusion between the terms “Whistleblower Ombudsman” and “Commonwealth
Ombudsman”.
[101] The role of the Inspector would be focused. The Inspector would not have sweeping
discretionary powers.
51 Senator Gallagher referred to Robodebt as “the worst failure of public administration is history”:
https://www.katygallagher.com.au/media-centre/media-releases/update-on-robodebt-royal-commission-reforms/
The worst failure of public administration is history was on the “watch” of the Office of the Commonwealth
Ombudsman.
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[102] As I see it, the role of the Inspector would be to assess, upon receiving applications, whether
the Commonwealth Ombudsman or his staff members are approaching the task of conducting
investigations, under the Ombudsman Act 1976 (Cth) or section 55 of the Public Interest Disclosure
Act 2013 (Cth), in respect of complaints received about inadequacies in investigations conducted
under the Public Interest Disclosure Act 2013 (Cth), in a manner that reflects best practice.52
[103] Essentially, the role of the Inspector would be one of partial merits review.53
[104] Specifically, the Inspector will consider the merits of decisions made, under the Ombudsman
Act 1976 (Cth), section 55 of the Public Interest Disclosure Act 2013 (Cth), subordinate legislation
and policy, to determine whether the Commonwealth Ombudsman or his officials have undertaken
their tasks in a manner that meets community expectations and the mandate the Ombudsman was
given, by the Parliament, to ensure that investigations conducted under the Public Interest
Disclosure Act 2013 (Cth) are being conducted such that the disclosures are being properly
investigated and dealt with (i.e. in accordance with the explicit purpose set out in paragraph 6(d) of
the Public Interest Disclosure Act 2013 (Cth)).
[105] Upon assessment, the Inspector would be empowered to issue directions to the Ombudsman
or his officials about how the Ombudsman's investigation might require reconsideration.
III-B3.2. Establishing the office of the Inspector
[106] For the sake of statutory “cleanliness”, my view is that the Ombudsman Act 1976 (Cth)
should not be amended to establish the office of the Inspector. Rather, a free standing piece of
legislation should be the basis for establishing the position of Inspector.
[107] The legislation should establish the Office of the Inspector. The Inspector would be a statutory
office holder for the purposes of the Public Service Act 1999 (Cth), which means that the Inspector
would be bound by the APS Values.54
[108] The new enactment would provide that administrative staff members (e.g. an executive
assistant to the inspector, IT support, a review intake officer etc.) assisting the Inspector must be
persons engaged under the Public Service Act 1999 (Cth), and made available to the Inspector by
the Secretary of the Attorney-General's Department. In other words, the “agency head” responsible
for the administrative staff supporting the Inspector would be the Secretary of the Attorney-
52 The Ombudsman's, and his officials', failures to exercise their powers as intended was the subject of sustained
inquiry and criticism during the Robodebt Royal Commission. Unfortunately, because there is such little oversight
of the way that the Ombudsman and his officials operate, it took a Royal Commission to expose the incompetence
and timidity of officials in the Office of the Commonwealth Ombudsman (as to which, please refer to chapter 21 of
the Report of the Royal Commission into the Robodebt Scheme:
https://www.royalcommission.gov.au/robodebt/report ). Perhaps the most disturbing revelation from the Robodebt
Royal Commission was the lengths to which officials in the Office of the Commonwealth Ombudsman went to
sacrifice the independence of that office. The case study referred to in these submissions serves to further support
the view that officials in the Office of the Commonwealth Ombudsman are failing to apply the law as it was
intended by the Parliament, and are letting down whistleblowers in the process.
Ironically, the Commonwealth Ombudsman chastised the public service, in his report Room for Improvement:
Observations from the Ombudsman, for failing to apply the law as intended by the Parliament: see, Iain Anderson,
Room for Improvement: Observations from the Ombudsman, 3 September 2023
<https://www.ombudsman.gov.au/__data/assets/pdf_file/0019/300475/Room-for-Improvement-Observations-from-
the-Ombudsman.pdf > (accessed on 30 June 2025).
53 I say partial merits review because the review contemplated would not be de novo review (in the sense that the
Inspector would step into the proverbial shoes of the original investigator and conduct the investigation).
54 Public Service Act 1999 (Cth), s 14.
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General's Department.
[109] For the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth),
there would be good sense in explicitly setting out how the Secretary of the Attorney-General's
Department would be responsible for catering to the needs of the Inspector, by entering into
arrangements, such as contracts, on behalf of the Commonwealth, in furtherance of the Inspector's
work.
[110] The Inspector would be appointed by the Governor-General on the recommendation of the
Attorney-General, following approval of the candidate by a joint parliamentary committee.55 The
appointment should be for a maximum of five years, and the Governor-General should be able to
reappoint a person to the position of inspector on the recommendation of the on the
recommendation of the Attorney-General, following approval of the candidate assessor by a joint
parliamentary committee, subject to the joint parliamentary committee approving of the nomination
for re-appointment.
[111] The minimum qualifications for appointment as Inspector should be:
a) enrolment and practise as an Australian legal practitioner for at least seven years, with
considerable experience practising in administrative law;56 or
b) past service as a Judge of the Federal Court of Australia, or a State or Territory Supreme
Court,
in addition to the consent of the person being nominated by the Attorney-General.57
III
-B3.3. Assessors
[112] The enactment would also establish the positions of assessors (or whatever other title the
Parliament thinks appropriate).
[113] The assessors would not be engaged under the Public Service Act 1999 (Cth).
[114] Assessors would be, like sessional members of the Administrative Review Tribunal, appointed
by the Governor-General on the recommendation of the Attorney-General, following approval of
the candidate assessor by a joint parliamentary committee.
[115] The enactment ought to provide minimum qualifications for appointment, such as:
a) enrolment and practise as an Australian legal practitioner for at least five years, with
considerable experience practising in administrative law;58 or
55 More on the joint parliamentary committee later.
56 I use the term Australian legal practitioner in the way that term is used in the Legal Profession Uniform Law, which
is set out in Schedule 1 of the Legal Profession Uniform Application Act 2014 (Vic). Practical experience practising
as a lawyer is, I think, important, which is why I have not suggested that the person merely be enrolled as a legal
practitioner for five years.
57 I should hate to think that a person might be nominated, approved by the joint parliamentary committee, appointed
by the Governor-General, only for that person's consent to the nomination and appointment to have never been
provided.
58 I use the term Australian legal practitioner in the way that term is used in the Legal Profession Uniform Law, which
is set out in Schedule 1 of the Legal Profession Uniform Application Act 2014 (Vic). Practical experience practising
as a lawyer is, I think, important, which is why I have not suggested that the person merely be enrolled as a legal
practitioner for five years.
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b) appointment as a general member, senior member or a non-judicial deputy president of
the Administrative Review Tribunal, with experience and skills that, in the opinion of the
Attorney-General, makes the relevant member of the Administrative Review Tribunal an
appropriate candidate for appointment as an assessor; or
c) appointment as an officer of a State or Territory review tribunal (e.g. the Queensland Civil
and Administrative Tribunal), with experience and skills that, in the opinion of the Attorney-
General, makes the relevant officer an appropriate candidate for appointment as an assessor;
or
d) professional experience and skill that, though not captured in points a), b) or c), makes the
relevant person an appropriate candidate for appointment as an assessor,59
in addition to the consent of the person being nominated by the Attorney-General.
[116] Importantly, the enactment will provide that the pay of assessors, all of whom are to be
engaged to work on a sessional basis, will be determined by the Remuneration Tribunal. I envisage
that the pay structure will be similar to that of sessional members of the of the Administrative
Review Tribunal, which is set out in the Remuneration Tribunal (Judicial and Related Offices—
Remuneration and Allowances) Determination 2024. In other words, assessors would be paid using
daily rates and called on by the Inspector as, and when, work is available.
III
-B3.4. Grounds of review
[117] The grounds of merits review of decisions of the Commonwealth Ombudsman or officials in
the Office of the Commonwealth Ombudsman pertaining to investigations, under the Ombudsman
Act 1976 (Cth) or section 55 of the Public Interest Disclosure Act 2013 (Cth), of complaints about
inadequacies in the investigation of whistleblower disclosures under the Public Interest Disclosure
Act 2013 (Cth) would be, broadly, four fold. They would be:
a) a failure to meet best practice in respect of making administrative decisions under
relevant enactments; and/or
b) a failure to exercise, without adequate justification, powers to compel the production of
evidence or materials, particularly where the context of the complaint suggests that the
exercise of such powers would be warranted; and/or
c) acts or omissions of relevant officials being unreasonable, unjust, or oppressive in their
effects, irrespective of whether the acts or omissions are lawful or unlawful; and/or
d) unlawful conduct.
[118] Naturally, errors of law or fact would be caught by these grounds. So too would, for example:
a) failing to take relevant evidence into consideration; or
59 This final catch all provision, which contrasts against the more concrete and specific qualifications set out in the
points prior, would be relied on by the Attorney-General to recommend, for example, an academic with years of
experience teaching administrative law, or a legal practitioner with considerable experience in corporate (i.e. not
administrative) law, but with a focus on whistleblower disclosures made under the Corporations Act 2001 (Cth), or
an Australian legal practitioner who, while an expert in the field of administrative law, has not been enrolled as a
legal practitioner in Australia for 5 years (though has many years of experience practising in the field of
administrative law in, for example, New Zealand or Singapore), etc.
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b) taking irrelevant evidence into consideration; or
c) failing to take logically probative evidence into consideration; or
d) taking evidence into consideration that is not logically probative.
III
-B3.5. Review intake
[119] The relevant legislation should provide that where a whistleblower:
a) wishes to submit an application for review about the way the Ombudsman or one of his
officials handled a complaint about the inadequacies of an investigation under the Public
Interest Disclosure Act 2013 (Cth); or
b) has submitted an inadequately articulated application for review,
the Inspector will make arrangements, through members of his or her staff (i.e. the complaints
intake officer (who might also be the executive assistant to the inspector, or the office manager –
that is a resource management matter)) to assist the whistleblower to submit an application for
review in an appropriate manner.
[120] There is considerable merit in including a provision allowing a person to represent the
whistleblower in his or her dealings with the Inspector's office, so long as the whistleblower
provides the Inspector with such an authorisation in writing, and the authorisation is to the
satisfaction of the Inspector.
III
-B3.6. Powers to compel the production of information or artefacts
[121] The Inspector, and each and every assessor, should be able to compel the production of any
and all artefacts, including documents, in the control of the Office of the Commonwealth
Ombudsman that relate to the application for review submitted.
[122] The Inspector, and each and every assessor, should be able to compel the Commonwealth
Ombudsman and other officials in the Office of the Commonwealth Ombudsman to provide any
and all information that relates to the application for review submitted.
[123] The law should also provide that the Inspector, and each and every assessor, may compel the
Commonwealth Ombudsman and other officials in the Office of the Commonwealth Ombudsman to
appear before them and, on oath or affirmation, provide evidence.
III
-B3.7. Decision-maker
[124] While ultimately a matter for the Parliament, I think it sensible for the formal decision maker,
in respect of all decisions pertaining to the manner in which the Ombudsman or his staff have
handled complaints about inadequate whistleblower disclosure investigations, under the Public
Interest Disclosure Act 2013 (Cth), to be the Inspector.
[125] In line with that view, assessors will, as part of their work, consider applications for review,
conduct investigations and prepare their reasons, and submit their reasons and evidence in support
to the Inspector for the Inspector's consideration. Once considered, the Inspector may:
a) endorse the reasons in full, such that the reasons form the basis of his or her decision; or
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b) amend the reasons so that they reflect the views of the Inspector, and then use the
amended reasons as the basis for his or her decision; or
c) return the reasons to the assessor and ask the assessor to look further into issues of
concern before the reasons are again submitted to the Inspector for further consideration.
[126] Naturally, views may differ, and some may think it appropriate for the assessors to be decision
makers. If so, a provision should be included in the legislation that the Inspector is not permitted to
direct assessors in the manner in which they make their decisions (i.e. assessors should be
independent decision makers).
III
-B3.8. Publishing decisions and reasons for decision
Introduction
[127] Given that the role of the Inspector will be to assess the merits of how the Commonwealth
Ombudsman or his officials have considered applications for review lodged about the manner in
which investigations of whistleblower disclosures have been handled under the Public Interest
Disclosure Act 2013 (Cth), the Inspector would not be dealing with the substance of the allegations
of wrongdoing contained in the whistleblower disclosure.
[128] The Inspector's role is, rather, to deal with the merits of complaints handling processes. As
such, the substance of the any decision made by the Inspector would be about good administrative
decision making by officials in the Office of the Commonwealth Ombudsman.
[129] The legislation should explicitly provide that the Inspector must publish, on the Inspector's
webpage, each and every one of his or her reasons for decision in respect of applications for review
of decisions made by the Commonwealth Ombudsman or his officials pertaining to complaints of
inadequately investigated whistleblower disclosures under the Public Interest Disclosure Act 2013
(Cth). Each decision should bear an appropriate unique identifier.60 61
Proposed provisions
[130] The enactment should provide that:
a) the Inspector must publish his or her reasons within 90 days after delivering those
finalised reasons to the person who submitted the application for review;62 and
b) the Inspector may apply use pseudonyms for whistleblowers, third parties who are not
public-servants (or who have been public servants but are not connected with the issues
identified in the application for review) and, where appropriate, officials in the Office of the
Commonwealth Ombudsman;
c) the Inspector may apply redactions to sensitive personal information, as defined in the
60 For example, the identifier may be in the nature of medium neutral citations utilised by the Australian Information
Commissioner in respect of decisions issued by the Information Commissioner, or the Freedom of Information or
Privacy Commissioners.
61 The concept of medium neutral citations is set out in the Australian Institute of Judicial Administration's Guide to
Uniform Production of Judgments (1999), edited by the Hon L T Olsson. I commend that work to the Legal and
Constitutional Affairs Committee.
62 I think the 90 days provided to the inspector should be enough time for the inspector to consider any redactions that
should be applied, in the light of the legislated standard.
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Privacy Act 1988 (Cth).
No power to redact reasons for decision, other than in respect of sensitive personal information
[131] The enactment should also provide that the Inspector is not permitted to redact anything other
than sensitive personal information in his or her reasons for decision. In other words, references to
the titles of documentary evidence, the substance of evidentiary materials considered, and the like,
must not be redacted.
Alternative proposal with respect of the Inspector's powers to redact reasons for decision
[132] If, contrary to the submission set out above, the view is that the Inspector should have the
authority to redact reasons for decision published on the Inspector's website, I submit that the
powers should be qualified, and subject to institutional checks.
Power to redact only in exceptional circumstances
[133] I submit that any provision in respect of the Inspector having the power to redact should
provide that the Inspector must not redact anything in her reasons for decision, unless he or she is
convinced that exceptional circumstances exist for redacting that data.
[134] In considering the meaning of exceptional circumstances, the legislation should limit the
discretion open to the Inspector to identifiable grounds. As I see it, those limited grounds should
include:
a) documents that are Cabinet in confidence; and
b) documents, the disclosure of which would constitute a contempt of the Federal or State
Parliaments, or the courts of Australia; and
c) documents affecting enforcement of law and protection of public safety (as defined in
section 37 of the Freedom of Information Act 1982 (Cth).
[135] I would counsel against the proliferation of relevant grounds. I would be disappointed if, for
example, the exemptions set out in Part IV, Division 2 of the Freedom of Information Act 1982
(Cth) were to be transplanted tout-court as grounds that the Inspector should consider in
determining whether the most exceptional circumstances exist for redacting data from his or her
decisions.
Unredacted copies of redacted reasons for decision must be provided to the joint parliamentary
committee
[136] If the Inspector is provided with the power to redact reasons for decision is exceptional
circumstances, then the enactment should provide that unredacted copies of each of the redacted
reasons for decision must be provided to the joint parliamentary committee with oversight of the
Inspector's work in respect of each relevant reporting period.63
[137] The enactment should also provide that, by default, the unredacted copies of each of the
redacted reasons for decision must, upon being provided to the joint parliamentary committee for
the relevant reporting period, be tabled during the relevant hearing unless the Inspector advances a
63 Further submissions will be made in respect of a joint parliamentary committee, and its powers and functions,
below.
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public interest immunity claim in respect of the tabling of the relevant reasons for decision.64
[138] There is at least one strong justification for the provision, to the joint parliamentary
committee, of unredacted copies of each of the redacted reasons for decision, which is that
provision of the unredacted reasons for decision provides the members of the committee with the
opportunity to monitor the frequency and basis of the use, by the Inspector, of the power to redact
reasons for decision in exceptional circumstances.65 On a more general level, the members of the
committee will have access to information about how an integral part of the Commonwealth's
public sector whistleblowing scheme is actually operating, which is a far cry from the existing state
of affairs.
III
-B3.9. Power to issue directions to the Commonwealth Ombudsman or his officials, and offences
for failing to comply
[139] I submit that the legislation should provide that the Commonwealth Ombudsman and his
officials must comply with any directions issued as part of the Inspector's decision in respect of an
application for review.
[140] Subject to a timely application to a court of competent jurisdiction for a stay of the directions
given by the Inspector, with a view to setting the directions aside for reviewable error, a failure to
comply with the Inspector's directions or decision, by the Commonwealth Ombudsman or his
officials, should be an offence, punishable by 3 months in prison, or a fine of $5,000, or both.
Naturally, since the Governor-General may either:
a) suspend the Commonwealth Ombudsman from office on the ground of misbehaviour;66 or
b) remove the Commonwealth Ombudsman from office on an address praying for his or her
removal on the ground of misbehaviour being presented to the Governor-General by each
House of the Parliament in the same session of the Parliament,67
the Commonwealth Ombudsman will have plenty of incentive to comply with the directions and/or
decisions of the Inspector.
[141] Similarly, the Ombudsman's officials will have plenty of incentive to comply with the
directions or decisions of the Inspector given that they might end up in prison or be forced to part
with their money.
[142] The legislation should make clear that the Commonwealth Ombudsman or his officials must
comply with the directions or decision of the inspector within the time permitted by the Inspector. If
the directions or decision do not set out a time for compliance, the legislation should make clear that
compliance is to be within 30 days of the Commonwealth Ombudsman being personally notified of
the decision.68
64 Further submissions will be made in respect of public interest immunity claims below.
65 Naturally, should the inspector's view of what constitutes exceptional circumstances not align with the views of
members of the joint parliamentary committee, members of the committee may be able to consider, from an
informed position, the desirability of amendments to the legislation giving the inspector the power to
66 Ombudsman Act 1976 (Cth), s 28(2).
67 Ombudsman Act 1976 (Cth), s 28(1).
68 Notification need not be by personal service; an email or letter should suffice. As a matter of policy, the inspector
should ensure that each and every decision, issued in respect of an application for review, be sent to the
Commonwealth Ombudsman's government issued email address. Presumptions about the receipt of emails are set
out in the Electronic Transactions Act 1999 (Cth), s 14A.
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[143] It should also be made clear, in the legislation, that anybody, including members of the public,
will have a right to notify the Australian Federal Police that the Commonwealth Ombudsman or one
of his officials has failed to comply with the directions or decision of the Inspector.
III
-B3.10. Judicial review
[144] As with other administrative decisions, the decisions of the Inspector should be amenable to
judicial review under the ADJR Act. Filing fees and costs associated with such proceedings should
be what they ordinarily are.
III
-B3.11 . Freedom of information
[145] It should be made clear, in the relevant legislation, that the Inspector's documents may be the
subject of access applications under the Freedom of Information Act 1982 (Cth).
[146] Documents pertaining to the administrative staff and functions of the Office of the Inspector
will be subject to applications, under the Freedom of Information Act 1982 (Cth), to the Attorney-
General's Department.
III
-B3.12 . Reporting obligations
[147] The relevant enactment should set out the reporting obligations that apply in respect of the
work of the Inspector.
[148] The Inspector should be required to prepare biannual reports.
[149] Data in the biannual reports prepared by the Inspector should include, amongst other things:
i) the number of applications for review received in the relevant reporting period; and
ii) the number of decisions made in respect of applications for review in the relevant
reporting period; and
iii) a list of the decisions made in the relevant reporting period, setting out, in respect
of each decision in the list, the grounds of review relied on by the applicant, the
grounds upheld, the grounds not upheld, and the final decision (along with any
directions); and
iv) any referrals made to the Australian Federal Police, by the Inspector or assessors,
about failures to comply with directions or decisions in the relevant reporting period;
and
v) the adequacy, or otherwise, of administrative staff supporting the Inspector and the
assessors in the relevant reporting period; and
vi) whether concerns have been relayed to the Secretary of the Attorney-General's
Department about administrative staffing arrangements, and, if so, the Secretary's
response to those concerns in the relevant reporting period; and
vii) whether concerns have been relayed to the Secretary of the Attorney-General's
Department about arrangements governed by the Finance Law affecting the functions
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of the inspector,69 and, if so, the Secretary's response to those concerns in the relevant
reporting period; and
viii) the general state of the Commonwealth Ombudsman's handling of complaints
about whistleblower disclosures under the Public Interest Disclosure Act 2013 (Cth)
in the relevant reporting period.
[150] Separately, on an annual basis, the Secretary of the Attorney-General's Department must table
a report setting out, amongst other things:
a) the annual expenditure on administrative staff supporting the work of the Office of the
Inspector; and
b) the particularised annual expenditure on goods and services procured to advance the
functions of the Office of the Inspector.
[151] The Secretary's annual report should be prepared, to the extent practicable, in accordance with
the requirements of the Public Governance, Performance and Accountability Act 2013 (Cth) and, in
particular, Division 3A of Part 2-3 of the Public Governance, Performance and Accountability Rule
2014 (Cth).
III-C. The importance of independent and effective parliamentary oversight of the operations
of the Commonwealth Ombudsman, in respect of his complaints administration functions for
the
Publi
c Interest Disclosure Act 2013 (Cth) scheme
III-C1. Introductory comment
[152] In the light of the systemic failures, on the part of the Office of the Commonwealth
Ombudsman, identified by the Hon Catherine Holmes in her Report of the Royal Commission into
the Robodebt Scheme,70 as well as the failures identified in the case study set out in these
submissions, the importance of having an independent and effective form of parliamentary
oversight of the operations of the Commonwealth Ombudsman, in respect of the Commonwealth
Ombudsman's administration of complaints arising from inadequate or improper disclosure
investigations under the Public Interest Disclosure Act 2013 (Cth), should be obvious.
III-C2. Effective parliamentary oversight - Establishment and constitution of a joint
parliamentary committee
III
-C2.1. Introduction
[153] A joint parliamentary committee for the oversight of whistleblower activities, be they under
the Public Interest Disclosure Act 2013 (Cth), the Corporations Act 2001 (Cth),71 or other
legislation, should be established.
69 Public Governance, Performance and Accountability Act 2013 (Cth), subordinate legislation (e.g. the Public
Governance, Performance and Accountability Rule 2014 (Cth)), and associated instruments (e.g. Commonwealth
Procurement Rules) and policies.
70 The Hon Catherine Holmes AC SC, Report of the Royal Commission into the Robodebt Scheme (2023), chapter 21
<https://robodebt.royalcommission.gov.au/publications/report>. In particular, please refer to the criticisms of the
Royal Commissioner about the failures of the Commonwealth Ombudsman, and his staff members, to adequately
exercise the investigative powers that they had been furnished with by the Parliament, set out on page 581 of the
Report of the Royal Commission into the Robodebt Scheme.
71 Corporations Act 2001 (Cth), Part 9.4AAA.
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[154] The joint parliamentary committee should be constituted by twelve members, with six
members from the House of Representative and six from the Senate.
III-C2.2. Membership of the joint parliamentary committee from representatives in the House of
Representatives
[155] Of the six members from the House of Representatives:
a) subject to there being one,72 one of the members of the joint parliamentary committee
would be a representative from neither the Government nor the Opposition; and
b) subject to there being two, two of the members of the joint parliamentary committee
would be from the Opposition; and
c) the remaining members of the joint parliamentary committee would be from the
Government.
[156] If the House of Representatives is not constituted such that a representative is not from the
Government or the Opposition, where the Opposition is able to field a third person, the Opposition
shall be entitled to the membership reserved for the representative from neither the Government or
the Opposition on the joint parliamentary committee, though the Opposition may choose to forfeit
the place ordinarily reserved for the representative from neither the Government nor the Opposition
to the Government if the leader of the Opposition in the House notified the Speaker of the House of
Representatives, in writing, of the decision to forfeit.
[157] If the House of Representatives is not constituted such that:
a) the Opposition is able to field at least two representatives to participate as members of the
joint parliamentary committee, and
b) there are at least two representatives in the House of Representatives not from the
Government or Opposition,
the representatives not from the Government or the Opposition shall, subject to forfeiting the
benefit to the Government, be entitled to one of the two memberships ordinarily reserved for the
Opposition on the joint parliamentary committee.
[158] In the unlikely event that there be neither Opposition, nor a representative not from the
Government or the Opposition, in the House of Representatives, the Government shall be entitled to
field six members from the House of Representatives to sit on the joint parliamentary committee.
III-C2.2. Membership of the joint parliamentary committee from the Senate
[159] Of the six members from the Senate:
a) subject to there being two, two of the members of the joint parliamentary committee
would be senators from neither the Government nor the Opposition; and
b) subject to there being two, two of the members of the joint parliamentary committee
would be senators from the Opposition; and
72 It is possible and even plausible that the House of Representatives be constituted by only members of the
Government and the official Opposition. The law should reflect that possibility.
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c) the remaining senatorial members of the joint parliamentary committee would be from the
Government.
[160] Much like the House of Representatives' membership of the joint parliamentary committee,
the legislation should be drafted to take account of contingencies in respect of the membership of
senators, such as there being fewer than two senators from neither the Government nor the
Opposition.
III-C3. Hearings before the joint parliamentary committee are to be public unless conditions
apply for in camera hearings
III-C3.1. Default position on hearing before the joint parliamentary committee
[161] The legislation establishing a joint parliamentary committee for whistleblower activities
should explicitly provide that hearings before the committee are to be public and open unless the
committee determines that relevant statutory conditions are met for in camera hearings.
III
-C3.2. In ca
mera hearing of the joint parliamentary committee
[162] The legislation should explicitly provide that, where the statutory conditions are met for in
camera hearings, those in camera hearings must be held within 10 days of the open hearing in
which the conditions for the in camera hearings arose, subject, of course, to dissolution of:
a) the House of Representatives; or
b) the Senate; or
c) both the House of Representatives and the Senate,
within those ten days.
III
-C3.3. Grounds for in cam
era hearings of the joint parliamentary committee
[163] The legislation should provide that hearings shall only be held in camera to consider the
substance of a public interest immunity claim advanced by a person during an open hearing.
[164] The legislation should also provide that, where the joint parliamentary committee determines,
by a majority upon a vote, that the public interest immunity claim is not made out, the basis of the
claim and the entire transaction between the witness who advanced the immunity claim and the
committee must be published in Hansard.
[165] Moreover, the legislation should provide that:
a) any documents presented to the joint parliamentary committee; and
b) are the subject of a failed public interest immunity claim,
must be tabled as though the relevant documents were part of the transaction of the open hearing.
[166] The legislation should provide that, in the event of a tied vote, the public interest immunity
claim shall be taken as defeated.
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III-C4. Those appearing before the joint parliamentary committee may not withhold
information from the committee
[167] The legislation establishing a joint parliamentary committee for whistleblower activities
should explicitly provide that, other legislative provisions notwithstanding, those appearing before
the joint parliamentary committee may not withhold information from the committee upon a request
for information from any members of the committee. Consequential amendments to certain items of
legislation (e.g. subsection 35(8) of the Ombudsman Act 1976 (Cth)) are desirable and, thus, should
be effected by the Parliament.73
[168] The legislation should contain an explicit provision giving a person appearing before the joint
parliamentary committee the right to object to responding to a request for information only on the
ground that the request for information is not relevant to the committee's functions or purposes.
[169] The legislation should explicitly provide that, where an objection has been raised on the
ground that the request for information is not relevant to the committee's functions or purposes:
a) the joint parliamentary committee will, by majority vote, determine whether the relevant
request for information is relevant to the committee's functions and purposes; and
b) in the event of a tied vote, the objection raised on the ground that the request for
information is not relevant to the committee's functions or purposes shall be taken as
defeated.
III-C5. Those appearing before the joint parliamentary committee must use their best
endeavours to respond to requests for information
73 During the hearings of the Royal Commission into the Robodebt Scheme, the Commonwealth Ombudsman
submitted to the Royal Commissioner that neither he nor his officials, past or present, could be compelled to
disclose any information acquired in the course of activities conducted under, or for the purposes of, the
Ombudsman Act 1976 (Cth) or under Part V, Division 7 of the Australian Federal Police Act 1979 (Cth): Report of
the Royal Commission into the Robodebt Scheme, p 573,
<https://robodebt.royalcommission.gov.au/publications/report>.
The basis of the Commonwealth Ombudsman assertion was subsection 35(8) of the Ombudsman Act 1976 (Cth),
which provides:
A person who is or has been an officer is not compellable, in any proceedings before a court (whether
exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a
State or Territory, or by consent of parties, to hear, receive and examine evidence, to disclose any information
acquired by him or her by reason of his or her being or having been an officer, being information that was
disclosed or obtained under the provisions of this Act or under Division 7 of Part V of the Australian Federal
Police Act 1979.
Royal Commissioner Holmes “did not entirely accept this view but agreed to proceed on the basis that the
Ombudsman would assist the Commission voluntarily”: Report of the Royal Commission into the Robodebt
Scheme, p 573.
In the event that the Parliament were to forbid those appearing before the the joint parliamentary committee to
withhold information from the committee upon a request for information from any members of the committee, I
would encourage the Parliament to also amend the Ombudsman Act 1976 (Cth) to explicitly provide that subsection
35(8) of the Ombudsman Act 1976 has no application to hearings before the joint parliamentary committee for
whistleblower protections.
There should be no opportunity provided to any public official to undermine the purposes or functions of joint
parliamentary committee by refusing to respond to the committee's, or a member's, request for information.
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[170] The relevant legislation should provide that those appearing before the committee must use
their best endeavours to:
a) assist the joint parliamentary committee with its agenda; and
b) answer requests for information directly, or, where unable to provide direct answers, to
provide as much relevant information on the matter under consideration.
III-C6. General functions of the joint parliamentary committee
[171] The functions of the committee would extend to, amongst other things:
a) considering, and endorsing or rejecting, recommendations for the appointment of the
inspector of the Office of the Inspector; and
b) considering, and endorsing or rejecting, recommendations for the appointments of
assessors of the Office of the Inspector; and
c) receiving biannual reports from the Inspector; and
d) receiving biannual reports from the Commonwealth Ombudsman on, amongst other
things:
i) the matters that the Commonwealth Ombudsman is obligated to report about under
paragraphs 76(2)(a), (c) and (d) of the Public Interest Disclosure Act 2013 (Cth) in
the relevant reporting period; and
ii) for the relevant reporting period, a list of the inspector's decisions that have not
been complied with (i.e. either the substance of the decision was not complied with
or, more specifically the directions were not complied with), and the reasons for non-
compliance (e.g. a stay has been granted by a court of competent jurisdiction while
the substance of the decision or directions is reviewed); and
iii) for the relevant reporting period, a summary, which includes a broad description
of each of the grounds of complaint, of each complaint made to the Commonwealth
Ombudsman about the conduct of agencies in relation to public interest disclosures;
and
iv) for the relevant reporting period, a notation about the outcome or, if the matter is
pending an outcome, the pending state of an outcome in respect of each complaint
made to the Commonwealth Ombudsman about the conduct of agencies in relation to
public interest disclosures; and
v) the general state of the Commonwealth Ombudsman's handling of complaints
about whistleblower disclosures under the Public Interest Disclosure Act 2013 (Cth)
in the relevant reporting period; and
e) conducting a minimum of two hearings annually (outside of hearings conducted to
consider recommendations for appointments), where, amongst others:
i) the Inspector of the Office of the Inspector; and
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ii) the Secretary of the Attorney-General's Department; and
iii) the Commissioner of the Australian Federal Police; and
iv) the lead officer or officers in the Australian Federal Police responsible for
investigating offences arising from whistleblower disclosures; and
v) the Commonwealth Director of Public Prosecutions; and
vi) the lead prosecutor or prosecutors with appropriate responsibilities for
whistleblower protection prosecutions; and
vii) the Commonwealth Ombudsman,
will be present to answer questions about the state of the Commonwealth's whistleblower
disclosure scheme; and
f) receiving annual reports from the Commissioner of the Australian Federal Police on,
amongst other things, investigations arising from acts of whistleblower reprisal, referrals
about the failure of the Commonwealth Ombudsman or his officials complying with
decisions or directions of the Inspector, police education events pertaining to offences
arising from whistleblower disclosures, and other matters set out in legislation; and
g) receiving annual reports from the Commonwealth Director of Public Prosecutions on,
amongst other things, prosecutions arising from acts of whistleblower reprisal, referrals
about the failure of the Commonwealth Ombudsman or his officials complying with
decisions or directions of the Inspector, prosecutorial education events pertaining to offences
arising from whistleblower disclosures, and other matters set out in legislation.
[172] This list of functions is, of course, illustrative and non-exhaustive.
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PART IV – CONCLUSIONS
IV-A. Summation
[173] As noted, these submissions focus on two broad themes.
[174] The first is about the failure of the drafters of the Bill to heed concerns, identified in
paragraphs 1.74 – 1.76 of the Legal and Constitutional Affairs Committee's report into the
Whistleblower Protection Authority Bill 2025,74 about the immunities from liability of officials in
the proposed Whistleblower Protection Authority.
[175] The second is about the inadequacy of independent oversight of the operations of the Office
of the Commonwealth Ombudsman in respect of the Ombudsman's exercise of powers and
functions in respect of complaints about whistleblower disclosure investigation under the Public
Interest Disclosure Act 2013 (Cth).
[176] The Commonwealth Ombudsman's operations are virtually inscrutable in respect of the
Ombudsman's dealings with whistleblowers because:
a) as noted in part II of these submissions, there is virtually no avenue for judicial oversight
available to whistleblowers aggrieved by unlawful decisions made by the Commonwealth
Ombudsman or his officials; and
b) as noted in part III-B of these submissions, there is no avenue for administrative oversight
available to whistleblowers aggrieved by unmeritorious decisions made by the
Commonwealth Ombudsman or his officials; and
c) as noted in part III-C of these submissions, there is very little parliamentary oversight of
the way in which the Commonwealth's whistleblower disclosure regimes actually operate.
[177] While the proposals, set out in Schedule 1, Part 1 of the Bill, to grant the Office of the
Commonwealth Ombudsman additional powers and functions are welcome, neither of the two key
issue identified in these submissions has been addressed by the drafters of the Bill. Both issues
present systemic problems, and both will continue to plague whistleblowers unless the Government
addresses those problems.
IV-B. Recommendations for reform
[178] First, in the light of the concerns of three parliamentary committees about immunities from
legal action, in part II-E of these submissions, I set out recommendations for reform to the
Ombudsman Act 1976 (Cth).
[179] Second, noting:
a) that the proposed “Whistleblower Ombudsman” is little more than a glorified member of
the Commonwealth Ombudsman's staff; and
b) that the proposed reforms set out in Schedule 1, Part 1 the Bill could just as easily be
74 The Legal and Constitutional Affairs Committee's report into the Whistleblower Protection Authority Bill 2025 (No
2) is accessible here:
https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/RB000652/toc pdf/WhistleblowerProtectionAu
thorityBill2025.pdf
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effected without any reference to a “Whistleblower Ombudsman”; and
c) by reference to actual cases, the demonstrable failures of the Commonwealth
Ombudsman or his officials to exercise the powers granted, by statute, in a way that
conforms to law, and the expectations of the community and the Parliament,
in part III-B of these submissions, I criticise the lack of independence of the proposed
“Whistleblower Ombudsman”, and propose that an independent official, akin to the Inspector of the
National Anti-Corruption Commission, be empowered to to assess, upon receiving applications,
whether the Commonwealth Ombudsman or his staff members are approaching the task of
conducting investigations, under the Ombudsman Act 1976 (Cth) or section 55 of the Public
Interest Disclosure Act 2013 (Cth), in respect of complaints received about inadequacies in
investigations conducted under the Public Interest Disclosure Act 2013 (Cth), in a manner that
reflects best practice.
[180] Unlike the proposed “Whistleblower Ombudsman”, who would be subordinate to the
Commonwealth Ombudsman, my proposal provides a mechanism for administrative oversight of
the merits of decisions made by the Commonwealth Ombudsman, or his officials. My proposal
would not be a considerably more expensive exercise than the proposal for a “Whistleblower
Ombudsman” and, more importantly, will address the systemic problem that currently exists –
namely the inscrutability of decisions of the Commonwealth Ombudsman, or his officials, in
respect of complaints made about inadequate whistleblower disclosure investigations under the
Public Interest Disclosure Act 2013 (Cth).
[181] Third, in part III-C of these submissions, I set out recommendations for institution of a form
of parliamentary oversight in respect of whistleblower activities under relevant laws of the
Commonwealth.
Professor Peter Tregear OAM
24 September 2025
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Our ref: 2019-402149
21 September 2020
Professor Peter Tregear
By email to: xxxxx.xxxxxxx@xxxxx.xxx
Dear Professor Tregear
I am writing to let you know that I have finished investigating your complaint about the Australian
National University’s (ANU) handling of your public interest disclosure (remade PID 2018-300002).
Broadly, your complaint concerned the adequacy of the ANU’s investigation of your disclosure. You
raised a number of issues, including:
the investigator’s findings were unreasonable on the basis of the information you provided for
the purposes of the investigation
it was unclear from the investigation report how the investigator assessed your documentary
evidence and oral evidence at interview
the investigation report did not address some of the particulars of your allegations
the investigator appeared to raise doubts about your credibility in the investigation report.
Our role
Our Office’s role in assessing a complaint about an agency’s handling of a disclosure is to consider
whether the agency’s actions and decisions were consistent with its obligations under the
Public
Interest Disclosure Act 2013 (PID Act) and reasonably open to it. We do not re-investigate the
allegations made in the disclosure.
Under the
Ombudsman Act 1976 (Ombudsman Act), we may decide not to continue investigating a
complaint where we form the view that further investigation is not warranted in all of the
circumstances. A relevant consideration for our Office is whether further investigation of the
complaint would be likely to result in a different outcome.
Where we identify flaws in an agency’s handling of a disclosure, we may make comments or
suggestions to the agency under section 12(4) of the Ombudsman Act. However, we do not have the
power to compel an agency to take a particular course of action.
Our investigation of your complaint
The ANU engaged an external investigator to investigate your disclosure and to prepare a report for
the ANU’s consideration. The investigation report records that the investigator reviewed the material
you provided in support of your disclosure, conducted a ‘desktop review’ of numerous documents
and emails provided by the ANU, and conducted interviews with 11 witnesses. The investigation
report was accepted and adopted by the ANU. At our request, the ANU provided our Office with an
unredacted copy of the report and records of witness interviews.
We subsequently requested additional information from the ANU to enable us to better understand
what evidence the investigator considered in reaching particular conclusions, and if the investigator
did not consider or give weight to certain material or allegations, why. We followed up on our
GPO Box 442, Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ ombudsman.gov.au
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request on a number of occasions between April and August 2020. The ANU ultimately did not
provide a response.
In the circumstances, we decided to progress our investigation of your complaint based on the
information available to us. In doing so, we made some observations to the ANU about its
investigation of your disclosure. We invited the ANU to provide a response to our comments, but it
did not do so.
Although the investigation appears to have been reasonably comprehensive, based on the
information we reviewed, we formed the view that the investigation report did not adequately
explain the basis for some of the investigator’s findings. As the ANU did not provide us with the
additional information we requested, it was difficult for us to be satisfied that the investigator’s
findings were reasonably open.
We also referred the ANU to the procedural fairness requirements discussed in our Office’s Agency
Guide to the PID Act. We explained that you had raised concerns about the comments ‘
he is a liar, a
manipulator’ and ‘
untrainable’ having been included in the investigation report. We observed that it
was unclear whether you had been given an opportunity to respond to those comments, to the
extent that the investigator intended to rely on them. We suggested that if the investigator had not
formed an adverse view of your credibility, or if the comments were not materially relevant to the
findings of the investigation, it was unclear why they were included in the report.
The ANU did not respond to our observations.
Conclusion
I have decided to finalise my investigation of your complaint at this point, because I do not think that
further investigation would be likely to result in a different outcome for you. Our Office will consider
whether it is appropriate to make any further comments or suggestions to the ANU under
section 12(4) of the Ombudsman Act with a view to improving future administration of the public
interest disclosure scheme. I acknowledge that this may not be the outcome you were seeking, but I
do not think that further investigation would be likely to achieve a better result.
The PID Act contemplates that a discloser may make an external disclosure if all of the criteria in
section 26 have been met. Our Office cannot comment on whether it is open to you to make an
external disclosure in all of the circumstances. We recommend that you seek independent legal
advice about the options that may be available to you going forward.
If you think I have overlooked something or there is further information I should consider before
finalising my investigation of your complaint, please email me at xxx@xxxxxxxxx.xxx.xx. If I do not
hear from you by
5 October 2020, I will proceed to finalise my investigation and close your
complaint.
Thank you for bringing your concerns to the attention of the Ombudsman’s Office.
Yours sincerely
By email
s 47F(1)
Investigation Officer
Public Interest Disclosure Team
GPO Box 442, Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ ombudsman.gov.au
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