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Integrity in the NDIS: fixing whistleblower protections

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Human Rights Law Centre

Integrity in the NDIS: Fixing Whistleblower Protections

Submission to the Joint Parliamentary Committee on the National Disability Insurance Scheme

April 2026

Kieran Pender Associate Legal Director

Madeleine Howle Lawyer

Human Rights Law Centre Ltd Level 17, 461 Bourke Street Melbourne VIC 3000 www.hrlc.org.au

Human Rights Law Centre

The Human Rights Law Centre uses strategic legal action, policy solutions and advocacy to transform laws and policies to protect human rights. In 2023, we launched the Whistleblower Project, Australia’s first dedicated legal service to protect and empower whistleblowers who want to speak up about wrongdoing. We provide legal advice and representation to whistleblowers, as well as continuing our longstanding tradition of advocating for stronger legal protections and an end to the prosecution of whistleblowers. We are also a member of the Whistleblowing International Network.

The Human Rights Law Centre acknowledges the lands on which we work and live, including the lands of the Wurundjeri, Bunurong, Gadigal, Ngunnawal, Darug and Wadawurrung people.

We pay our respect to Elders of those lands, both past and present. We recognise that this land always was and always will be Aboriginal and Torres Strait Islander land because sovereignty has never been ceded. We acknowledge the role of the colonial legal system in establishing, entrenching and continuing the oppression and injustice experienced by First Nations peoples and that we have a responsibility to work in solidarity with Aboriginal and Torres Strait Islander people to undo this.

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Contents

  1. Introduction ………………………………………………………………………………………….. 4
  2. Background …………………………………………………………………………………………… 7 2.1 The Whistleblower Project …………………………………………………………………………………………. 7 2.2 NDIS whistleblower protections …………………………………………………………………………………. 7 2.3 Legislative framework for whistleblower protections …………………………………………………….. 8
  3. The policy basis for stronger whistleblower protections in the NDIS ………………………………………………………………………………………….. 10 3.1 Human rights framework ………………………………………………………………………………………….. 10 3.2 Cost to integrity: the overlapping and inconsistent regime …………………………………………… 10 3.3 Intersectional impacts on individual whistleblowers and their experience of speaking up .. 11 3.4 Support for whistleblowers ………………………………………………………………………………………. 13 3.4.1 Regulatory agency involvement …………………………………………………………………….. 13 3.4.2 The need for a whistleblower support function ……………………………………………….. 13 3.5 Case studies ……………………………………………………………………………………………………………. 14
  4. Legislative reform …………………………………………………………………………………. 16 4.1 The kinds of disclosures protected …………………………………………………………………………….. 16 4.1.1 Protections for disclosures to lawyers, medical practitioners and other supports .. 16 4.1.2 External disclosures where appropriate …………………………………………………………. 17 4.2 Handling of whistleblowing disclosures …………………………………………………………………….. 18 4.2.2 Positive obligation on recipients ……………………………………………………………………. 19 4.2.3 Whistleblower policies …………………………………………………………………………………. 19 4.3 Accessibility and strength of protections …………………………………………………………………… 20 4.3.1 The cost of seeking remedies ……………………………………………………………………….. 20 4.3.2 Protection for preparatory acts ……………………………………………………………………… 21 4.3.3 Procedural guidance on claiming protections …………………………………………………. 21 4.3.4 Reverse onus of proof ………………………………………………………………………………….. 22 4.3.5 Cost protections ………………………………………………………………………………………….. 22
  5. Recommendations ………………………………………………………………………………… 23

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1. Introduction

The NDIS whistleblower protections, found in Division 7 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) are a critical component of the regime. They ensure integrity and accountability within a large and complex scheme, and reflect recognition of the role of whistleblowers as information sources to inform regulators and the public of wrongdoing.

Currently, the shortfalls in the National Disability Insurance Scheme (NDIS) whistleblowing regime are preventing would-be whistleblowers from safely and lawfully speaking up about wrongdoing.

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability recognised overly complex and inaccessible complaint mechanisms at every level of the NDIS framework prevent people with disability, their advocates and workers from speaking up.^1 It was also well recognised that power imbalances between people with disability and service providers can be a barrier to people speaking up about abuse.^2 To date, the systems within the NDIS to detect, investigate and address wrongdoing against persons with disability have been inadequate.

In recent years, public interest journalism has played a significant role in exposing wrongdoing within the NDIS to the public. In our experience advising whistleblowers, this is not just because of insufficient enforcement powers and resourcing for NDIS regulatory bodies. Whistleblowers under the NDIS regime often stay silent because they are not sufficiently covered by whistleblower protections in the NDIS Act, feel they will suffer retaliation from their employer if they report to the NDIS Quality and Safeguards Commission (the Commission) or the National Disability Insurance Agency (NDIA) and are fearful of the risk to their employment in the industry if they are identified as a whistleblower. Often, whistleblowers in the sector are unaware that there are protections in the NDIS Act for speaking up about wrongdoing and are sometimes discouraged from reporting within their organisation. Speaking anonymously to a journalist might be the only way someone feels they can raise their concerns.

Since launching in August 2023, the Whistleblower Project has provided advice and representation to many clients blowing the whistle within the NDIS. Our client work has informed our advocacy for law reform in this area to date, including our submissions to the Community Affairs Legislation Committee in its inquiries into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024^3 and the National Disability Insurance Scheme Amendment (Integrity and Safeguarding) Bill 2025.

^1 Australian Government, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Volume 11: Independent oversight and complaint mechanisms (29 September 2023). ^2 Ibid, Volume 10: Disability services.

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We commend the recent reforms to the NDIS Act that made some positive changes to whistleblower protections - changes that we have long advocated for. These reforms have addressed some of the most glaring issues that were preventing whistleblowers from speaking up, and we are encouraged to see government respond to the concerns we have previously raised about the NDIS Act silencing would-be whistleblowers. However, these reforms are not the end of the road when it comes to fixing the NDIS whistleblower protections.

We thank the Committee for the opportunity to contribute our experience to its inquiry into the integrity of the NDIS.

This submission addresses the second two terms of reference of this inquiry:

  1. the effectiveness and adequacy of successive government policies to improve scheme integrity, safeguard participants, and tackle non-compliance; and
  2. any legislative or other reforms required to strengthen scheme integrity.

We approach these terms of reference with the whistleblower protections in the NDIS Act as a centrepiece, as they are crucial for the reporting and regulatory mechanisms of the NDIS framework to proactively capture and respond to wrongdoing.

As a front-line legal service for whistleblowers, we see every day the cost that this complex legislative regime is having on whistleblowers and the public interest. We make this submission in the context of our advocacy to date, and in recognition of the barriers that may prevent harmonisation of whistleblower protections immediately. In our view, the best practice approach to whistleblower protections at the federal level is a single economy-wide piece of legislation that would cover all whistleblowers across the private sector. Ideally, this law would be aligned, to the maximum extent possible, with public sector whistleblower protections, for example in the Public Interest Disclosure Act 2013 (Cth). To this end, we recommend:

^3 Kieran Pender and Madeleine Howle, Human Rights Law Centre, Protecting and Empowering Whistleblowers in the NDIS (Submission to the Senate Community Affairs Legislation Committee, May 2024) https://www.hrlc.org.au/submissions/2024-06-12-ndis-act-reform/. ^4 Kieran Pender and Madeleine Howle, Human Rights Law Centre, Safeguarding Integrity in the NDIS through whistleblower protections (Submission to the Senate Community Affairs Legislation Committee, February 2026) https://www.hrlc.org.au/submissions/ndis-safeguarding-quality/.

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  • Recommendation 1: The Committee recommend that the Parliament enact a single Whistleblower Protection Act that would provide protections for all whistleblowers across the private and non-profit sector, including NDIS whistleblowers.
  • Recommendation 2: The Committee recommend that the government meaningfully consider how to provide independent support and assistance to whistleblowers who provide information to federal regulators across the public and private sectors, including but not limited to in the NDIS.

Notwithstanding the overarching benefits of economy-wide reform to address the shortfalls in Australia’s federal whistleblower framework, including the NDIS protections, we also see the impact of gaps in the NDIS whistleblower regime that are directly impacting the ability of whistleblowers in the NDIS to safely and lawfully speak up. This impact is tangible every day in our work, and we emphasise to the Committee the necessity and appropriateness of amending the NDIS whistleblower regime to bring the protections in line with other federal private sector regimes.

To this end, we recommend:

  • Recommendation 3: Until comprehensive economy-wide reform occurs, the NDIS Act be amended to harmonise whistleblower protections with the Corporations Act 2001 (Cth) protections to the extent practicable and relevant, and other federal whistleblowing laws where appropriate.

The remaining recommendations in Part 4 of this submission, and listed in the Recommendations section in Part 5, go to the most pressing shortfalls in the NDIS whistleblower protections that are preventing whistleblowers from speaking up, and would complement harmonisation of the protections with the Corporations Act 2001 (Cth).

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2. Background

2.1 The Whistleblower Project

The Human Rights Law Centre launched the Whistleblower Project in 2023. We are Australia’s first dedicated pro bono legal service to protect and empower whistleblowers across Australia. We provide advice and representation to whistleblowers in the public and private sectors in all jurisdictions in Australia, and advocate for stronger protections. Since launching in August 2023, we have been contacted by over 650 individuals seeking advice and assistance navigating whistleblowing laws and given advice to over 200 clients, many in the NDIS sector.

In 2022, the Human Rights Law Centre co-published Protecting Australia’s Whistleblowers: The Federal Roadmap, which highlighted the incomplete and out-of-date patchwork of whistleblower protection laws.^5 We built on this work in 2023 with the Cost of Courage Report, which provided the most comprehensive empirical review of Australia’s whistleblower protection laws in practice undertaken to date.^6

Across our empirical research and our client work, we have seen firsthand the negative impact that piecemeal, out-of-date, and overly complex whistleblower laws are having on transparency, accountability and integrity in Australia, including within the NDIS.

2.2 NDIS whistleblower protections

The whistleblower protections in the NDIS Act were introduced in 2017 by the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Bill and designed to promote integrity and accountability of NDIS providers.^7

Put simply, Division 7 of the NDIS Act establishes pathways for workers, participants, and their family or independent advocates who are connected to an NDIS provider to make disclosures about breaches of the NDIS Act by that NDIS provider to particular individuals or agencies, and be protected from legal or administrative liability for doing so.

^5 AJ Brown and Kieran Pender, Protecting Australia’s Whistleblowers: The Federal Roadmap (updated January 2023) https://www.hrlc.org.au/reports/protecting-aus-whistleblowers-federal-roadmap/. ^6 Kieran Pender, Human Rights Law Centre, The Cost of Courage: Fixing Australia’s Whistleblower Protections (August 2023) https://www.hrlc.org.au/reports/cost-of-courage/. ^7 Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Bill 2017, 34.

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Until earlier this year, the NDIS whistleblower protections had not seen any reforms since introduction and were among the most outdated at the federal level. Since their enactment, significant changes to best practice in whistleblower protections at the federal level have occurred and continue to occur with upcoming reforms to the public and private sector regimes, discussed further at 2.3. below.

In March 2026, the NDIS whistleblower protections were amended by the National Disability Insurance Scheme Amendment (Integrity and Safeguarding) Bill. The amendments in this Bill partially improved protections for whistleblowers by doing 4 main things:

  • Extending the protections to former employees, workers, participants and others formerly connected to an NDIS provider;
  • Allowing whistleblowers to make disclosures to eligible recipients anonymously;
  • Removing the outdated “good faith” requirement for disclosures; and
  • Introducing protections for the confidentiality of whistleblowers who make protected disclosures under the regime.

These amendments have significantly improved the accessibility of protections for whistleblowers and addressed some key shortfalls in the framework. We commend the government for these reforms and are encouraged to see these changes. However, these reforms are only a first step towards comprehensive whistleblower protections.

This submission makes recommendations for further reforms required to bring the NDIS whistleblower protections in line with other federal whistleblowing regimes and recognise the critical role that whistleblowers in the NDIS play in ensuring the accountability and integrity of the scheme.^8

2.3 Legislative framework for whistleblower protections

The NDIS whistleblower protections sit within a broader federal whistleblower protection framework. There are currently at least 19 different whistleblowing laws across Australia, which operate independently but overlap where an organisation may be covered by multiple regimes.

Federal whistleblower protections are found in the Public Interest Disclosure Act 2013 (Cth) (the PID Act) for public sector employees and other workers connected to public sector agencies, the Corporations Act 2001 (Cth) (the Corporations Act) for private sector entities regulated by the Act, and a number of other sector specific legislative regimes, including the NDIS Act. There is also

^8 See fn 3 and 4 for the Human Rights Law Centre’s previous submissions on whistleblower protections in the NDIS.

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a public interest disclosure regime in every state and territory in Australia, which generally apply to disclosure of wrongdoing about public officers or public agencies, though these regimes vary from state to state.

Due to the intersecting and overlapping nature of these legislative regimes, it is not uncommon for an organisation to be covered by multiple legislative frameworks. For example, in the NDIS sector, many organisations fall within the Corporations Act whistleblower regime as companies or trading or financial corporations within the meaning of s 51(xx) of the Constitution, and also under the NDIS Act regime as an NDIS provider. It is also possible for NDIS providers delivering services to a government agency (whether federal or state/territory) under a contract to be covered by a PID regime, in addition to the other relevant private sector regimes.

Of course, some level of overlap of these legislative regimes is inevitable, and necessary, in the Australian economy. However, inconsistencies between these regimes caused by a lack of coordination in legislative reform has contributed to a dysfunctional framework.

This intersection and dis-harmonisation (particularly between private sector whistleblower protections) is bad for business, bad for regulators, and bad for whistleblowers.

The Human Rights Law Centre, along with our partners, have long advocated for the harmonisation of whistleblower protections at the federal level by enacting a single Whistleblower Protection Act to cover the private sector, which should be harmonised to the extent practicable with the Public Interest Disclosure Act 2013 (Cth).

In 2017, the Parliamentary Joint Committee on Corporations and Financial Services recommended the harmonisation of whistleblowing legislation across Australia.^9 Nine years on, we are yet to see some of these out-of-date laws on whistleblower protections be reformed and harmonised.

Currently, there are reform processes on foot at the federal level to improve protections in a number of other federal whistleblowing regimes. The Department of Treasury is currently undertaking its statutory review of the Corporations Act and Taxation Administration Act 1954 (Cth) whistleblower protections. The Attorney-General’s Department is in the process of implementing the stage 2 reforms to the PID Act; an exposure draft of the amendment bill was released in late 2025.^10

^9 Parliamentary Joint Committee on Corporations and Financial Services, Whistleblower Protections in the Corporate, Public and Not-for-profit Sectors (September 2017, Steve Irons MP, Chair), Recommendation 3.1. ^10 Exposure Draft of the Public Interest Disclosure and Other Legislation Amendment (Whistleblower Protections) Bill 2025.

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3. The policy basis for stronger whistleblower protections in the NDIS

3.1 Human rights framework

Whistleblower protection is an essential part of the wider human rights framework in this country, underpinned by Australia’s international obligations, and provides vital checks and balances on the provision of disability services in Australia.

The right of persons with disability to receive equal access to justice and be treated with care and dignity are enshrined within the Convention on the Rights of Persons with Disability, to which Australia is a signatory, and reflected in the Disability Discrimination Act 1992 (Cth). The ability of whistleblowers to speak up, and the public’s right to know, about wrongdoing by NDIS providers or within the NDIS is crucial to the effectiveness of the scheme.

We make this submission to the Committee to share our experience advising whistleblowers, and not to reflect the lived experiences of persons with disability who access the NDIS scheme. The NDIS has significantly improved the lives of people with disability across Australia, allowing people to access the supports they need consistent with their rights to exercise choice and control. We understand the purpose of the Committee’s inquiry is report on the nature of non-compliance, and policy and reform solutions to improve the integrity of the NDIS. We do not provide these recommendations to criticise the use of the NDIS more broadly, but rather to reflect the value of whistleblower protections as essential to ensuring the NDIS functions most effectively for those it is designed to benefit: people with disability.

Crucially, the whistleblower protections within the NDIS Act support the regulatory infrastructure behind the NDIS to be able to promptly and effectively detect and address wrongdoing, ensuring participants are treated with respect and dignity, preventing fraud, and increasing accountability and transparency within the scheme.

3.2 Cost to integrity: the overlapping and inconsistent regime

As noted above, the sector-specific nature of the NDIS whistleblower protections means that many whistleblowers, particularly workers of NDIS providers, may be covered by more than one whistleblowing law. This is an inevitability of the piecemeal approach to private sector whistleblowing laws. However, the fact that NDIS Act protections are lagging compared to other laws means that whistleblowers in the sector are often using alternative pathways to seek accountability for wrongdoing.

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For example, the Corporations Act and PID Act both have ‘stronger’ protections for whistleblowers, including more developed pathways for seeking remedies for retaliation, and pathways for whistleblowers to disclose to the media in certain circumstances. As a result of the lack of harmonisation between these regimes, particularly the weaker regime and lack of external disclosure pathways in the NDIS Act, whistleblowers may be more inclined to pursue other legislative pathways to make protected disclosures of information about wrongdoing, for example by instead following the Corporations Act regime which would lead them to report to Australian Securities and Investments Commission (ASIC) or the Australian Prudential Regulation Authority (APRA). The NDIS Quality and Safeguards Commission is not an eligible recipient of a whistleblowing disclosure under the Corporations Act. Further, ASIC and APRA do not have referral powers to direct whistleblowing disclosures to the Commission.

Resultingly, the shortfalls in the NDIS Act protections disincentivise whistleblowers from making disclosures about wrongdoing in the NDIS to the appropriate regulators. Many of our clients who seek advice about whistleblowing in the NDIS have witnessed serious harm to persons with a disability. Many have experienced direct retaliation for having raised their concerns, and many report having been financially unable to pursue remedies for retaliation or risk trying to escalate their concerns. These are concerning trends within the NDIS sector that will only persist without reform addressed at closing the gaps between the NDIS whistleblowing regime and other federal whistleblowing laws.

3.3 Intersectional impacts on individual whistleblowers and their experience of speaking up

It is worth noting that trends in the demographic of disability support service workers and NDIS sector more broadly can provide further insight into relevant policy considerations for strengthening the accessibility of whistleblower protections.

It is well recognised in the international literature that a whistleblower’s decision to report wrongdoing and experiences of victimisation are shaped by intersectional factors including race, gender, class, employment conditions, migration status, disability among other factors.^11

^11 See e.g. Taymi Milán Paradela and Marie Terracol, Transparency International, The integration of gender and intersectionality in whistleblowing environments (October 2025); European Whistleblowing Institute, Why is necessary to talk about gender-sensitive and intersectional whistleblowing systems? (6 October 2025).

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The National Disability Services (NDS) Workforce Census Report for 2025 reported on nationwide survey results that 40% of employees of member providers were in casual employment.^12 The same survey also reported that 63% of the workforce were women, and roughly 28% of the workforce were from culturally or linguistically diverse backgrounds.^13

In our anecdotal experience, current and prospective whistleblowers who may be subject to more precarious conditions in the workplace - whether because they are at greater risk of discrimination, harassment or employment insecurity - are more likely to demonstrate greater reluctance to speak up. Often, this is due to a greater distrust in reporting systems and institutions, and/or a self-reported lower risk appetite because of financial and employment instability.

Data analysis from our first year of operation showed that a greater proportion of women (32% compared to 9% of men) faced bullying and harassment as a form of reprisal for making a whistleblowing disclosure.^14 Nearly half of disclosures made by women (across all industries) were related to the endangerment and mistreatment of people,^15 and 100% of people employed in the healthcare industry suffered some form of detriment for speaking up.^16

What this data demonstrates is that women are essential to exposing human rights abuses in Australia and are at greater risk of suffering harassment in the workplace for doing so. Further research is needed into the intersectional impacts of whistleblowing in the workplace, and these statistics reflect the Australian workplace broadly, and are not specific to the disability sector.

However, taking into account this research and general demographic data about the NDIS workforce, it is clear that there is a need to pay closer attention to the intersectional factors that may be preventing whistleblowers from speaking up in the NDIS sector.

In our view, the following reform goals could significantly reduce the structural, social and cultural barriers preventing whistleblowers from speaking up:

  • Greater institutional and independent support for whistleblowers, through the provision of independent advice and psychological support to help navigate whistleblowing pathways;
  • Proactive protection of whistleblower confidentiality, to reduce the incidence of victimisation; and

^12 NDS, Workforce Census Report (2025), 8 https://nds.org.au/resources/all-resources/nds-workforce-census-key-findings-report. Note, this statistic only reflects member providers. ^13 See ibid, 20. The data on culturally and linguistically diverse staff was identified as limited, based on the fact that many providers indicated they did not know, or did not keep retain this information about staff. ^14 Human Rights Law Centre, Women Speaking Up: Gender Dynamics in Australia’s Whistleblowing Landscape (August 2025). ^15 Ibid, 16. ^16 Ibid, 18.

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  • Simplifying whistleblower disclosure pathways and shifting the burden away from whistleblowers to escalate their disclosure and enforce protections.

These broad reforms goals inform many of the recommendations throughout this submission.

3.4 Support for whistleblowers

3.4.1 Regulatory agency involvement

The recommendations in the next section, Legislative Reform, speak to the overarching issues that whistleblowers face in relation to the legislative scheme established. It is important for relevant regulatory agencies to understand whistleblowing frameworks and how whistleblowing occurs in practice, and provide accessible information to the public about whistleblowing pathways and how a disclosure can safely and lawfully be made. We raised this point in our submission to the National Disability Insurance Scheme Amendment (Integrity and Safeguarding) Bill 2025 earlier this year and reiterate that we have been pleased to see the Commission progress work in this area following the NDIS reforms in 2024. We would encourage further and ongoing engagement with the sector to better address the practical shortcomings which are preventing NDIS whistleblower from safely disclosing information about wrongdoing in the sector to the appropriate source for it to be addressed and prevented.

3.4.2 The need for a whistleblower support function

Notwithstanding the improved regulatory engagement on whistleblower protection issues, we emphasise in the strongest terms that one of the most significant contributors we have observed to the direct and collateral harm to whistleblowers in Australia is the lack of independent support available.

Whilst there are protections against victimisation in the NDIS Act, the reality is that more often than not, whistleblowers face mistreatment for speaking out, and this mistreatment can range from beyond deliberate acts of victimisation to other forms of indirect or incidental detriment. Without external support, they are often left unable to enforce their rights under whistleblowing laws.

The Whistleblower Project sees firsthand the emotional, psychological, social, professional and financial impacts that whistleblowers face. As a philanthropically funded organisation with limited resources, the Whistleblower Project cannot help every person that seeks assistance from the service.

Supports should be requisite when regulatory agencies, for example the NDIS Quality and Safeguards Commission and the Agency, deal with whistleblower reports. However, regulatory or

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Investigatory Agencies

investigatory agencies often face resource constraints, and are limited by the actual and perceived conflicts that would arise if they provided these supports to whistleblowers.

In June 2025, the Human Rights Law Centre, Griffith University and Transparency International Australia published Design Principles for Australia’s Federal Whistleblower Protection Authority.’7 This resource provides a comprehensive background on the need for a Whistleblower Protection Authority at the federal level and establishes 10 design principles for such an authority. These design principles would be relevant to considering a support function at under the NDIS regime. The establishment of a whistleblower protection function within the NDIS regulatory framework would see the NDIS lead in protecting and empowering whistleblowers, particularly in light of the nature of employment within the sector and the unique challenges that whistleblowers often face in speaking up, discussed in 3.3. above.

We strongly urge the Committee to give consideration to this missing piece in the NDIS regulatory landscape and how it may be addressed — whether through the proposed Whistleblower Support Office within the Commonwealth Ombudsman, a standalone Whistleblower Protection Authority, or otherwise, consistent with Recommendation 2.

Case studies

We provide the following case studies to the Committee to illustrate some of the challenges whistleblowers face. Please note that these case studies are not based on individual clients, but rather an amalgamation of different issues and factual scenarios we have observed in our work. These case studies are included for illustrative purposes only and are not intended to criticise action of particular organisations or regulators.

Case Study 1

Victoria is a support worker for a registered NDIS provider that is a private company and covered by the Corporations Act and NDIS Act whistleblower protections. In the course of her work delivering support to a participant, she observes another colleague engaging in violence against a participant. She reports the behaviour to her manager. She doesn’t hear any response for a few weeks, but hears a rumour from a colleague that management is concerned about increased scrutiny from the Quality and Safeguards Commission.

redacted: s47F - Personal privacy

Human Rights Law Centre, Griffith University and Transparency International Australia, A Fair Go for Speaking Up: Design Principles for Australia’s Federal Whistleblower Protection Authority (18 June 2025) https://transparency.org.au/a-fair-go-for-speaking-up/.

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A few weeks later, Victoria receives a direction from her manager stating that they conducted an internal investigation and did not substantiate the allegation Victoria made. Victoria knows that the incident should be reported to the Quality and Safeguards Commission and has contemporaneous notes that she made on her work laptop of the incident. Victoria no longer trusts the business because of what has happened and decides to quit her job and move to a different provider. She wants to report the incident but is worried about her manager having greater scrutiny over her work towards to end of her notice period. She downloads the contemporaneous notes and the email from management off her work laptop and sends them to personal email, so that she can make the report to the Commission at home where no one at work will see her.

After her last day, she sends the report to the Commission. Four weeks after commencing her new role, Victoria receives a letter from her former employer’s lawyers alleging that she is liable for breach of confidence and a breach to her employment contract for retaining copies of company documents. She suspects the letter refers to the evidence she downloaded. After consulting with a lawyer, she discovers that she may not have legal protections for sending those documents to her personal laptop.

Case Study 2

Gabriel currently works for an NDIS provider that is structured as an unincorporated association. The organisation provides services to a disability housing provider. In the course of his work, Gabriel observes that large amounts of funds were paid from another organisation to his employer. Gabriel is aware that several members on the board of his organisation also have positions on the board of the other organisation. He later notices that his employer is charging rent at double the market value, and suspects that the rent may be inflated to access greater amounts of public funding. Gabriel does not want to disclose this internally because he suspects that the board is involved in the conduct. As an employee of an NDIS provider, Gabriel is covered by the NDIS Act whistleblower protections. Gabriel makes a disclosure by sending an email to the Commission, reporting the conduct. For whatever reason, the Commission determines that it cannot investigate Gabriel’s disclosure. Gabriel observes that the conduct continues to occur and feels that he needs to alert the public. There are no external disclosure pathways in the NDIS Act for Gabriel to disclose the information to a journalist, and the provider is not a regulated entity under the Corporations Act so its protections don’t apply. Gabriel has no way of safely disclosing the information without risking his employment, so he decides not to do anything further.

4. Legislative reform

This section provides a short list of the most pressing areas for reform to bring the NDIS whistleblower protections in line with other federal regimes, including the Corporations Act. These recommendations are separated into three categories, reflecting the conceptual framework for how whistleblowers interact with the legislative protections and the problems that are preventing the regime from functioning effectively:

  • Part 4.1. deals with recommendations for ‘eligible recipients’ of whistleblowing disclosures that should be protected by the legislative regime;
  • Part 4.2. deals with recommendations for the management of whistleblower disclosures and obligations on recipients to ensure that disclosures about wrongdoing reach the appropriate recipient and whistleblowers have faith in the efficacy of the regime; and
  • Part 4.3. deals with recommendations for the accessibility and enforceability of protections, to give effect to legislative protections, improve the experience of whistleblowers and deter retaliation.

At the outset, we note that the recent amendments to the Aged Care whistleblowing regime through the Aged Care Act 2024 (Cth) provide some useful direction as to technical improvements to the integration between general complaint mechanisms and whistleblower protections in a comparable sector-specific regime. However, in our view, those amendments did not go far enough to improve the experience of whistleblowers, particularly to the extent that the amendments did not improve the enforceability of protections, clarify procedural requirements for bringing a claim, or substantively clarify the obligations on recipients of disclosures.

4.1 The kinds of disclosures protected

4.1.1 Protections for disclosures to lawyers, medical practitioners and other supports

Whistleblowers under the NDIS Act do not receive protections for seeking advice or support in relation to making a disclosure, unlike under other federal whistleblowing laws.

This is a missing step in ensuring the chain in protection is not broken when a whistleblower seeks professional support or advice in relation to their disclosure. The recent amendments to the Taxation Administration Act 1953 (Cth) include protections for disclosures to medical practitioners and psychologists, and similar protections have been proposed in the federal public sector regime

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Recommendation

4: Amend the Act to include protections for eligible whistleblowers to make a disclosure to a legal practitioner, medical practitioner, union or independent advocate for the purpose of seeking assistance or advice in relation to their disclosure.

4.1.2 External disclosures where appropriate

Best practice whistleblowing laws reflect a recognition that where internal and regulatory reporting mechanisms fail, there should be protection for individuals who make disclosures of accurate information to the public (including to the media or a parliamentarian) in the public interest. Under both the Corporations Act and the PID Act, a whistleblower who has made protected disclosures to the correct recipients under the legislation and has not received an adequate response can, where it would be in the public interest to do so, disclose the information to other people outside of the department or organisation (often referred to as an ‘external disclosure’).

We recommend that an external disclosure pathway be included within the NDIS Act that mirrors the PID Act, where a person may be empowered to give information to the public where it is reasonable to do so. This reform would be consistent with the public interest in ensuring transparency of the NDIS and bring the NDIS Act in line with whistleblower protections in other federal regimes.

We recognise the sensitive nature of certain kinds of information that may be reported under NDIS whistleblower protections. This is not dissimilar to the risk of disclosure of sensitive information through the PID Act, and we draw the Committee’s attention to the high threshold for external disclosure required in s 26(1) of that Act. We do not propose that an external disclosure mechanism within the NDIS Act allow whistleblowers to disclose any personal or identifying information about individual persons with disability without their consent, and there are appropriate safeguards that could be included within any external disclosure pathway to clarify this, including:

  • The requirement that only non-personal or anonymised data should be disclosed externally;
  • A prohibition on disclosing personally identifiable information unless explicitly authorised by the relevant individual; and
  • An obligation upon organisations receiving such disclosures to ensure they maintain confidentiality regarding all personal details received as part of these processes.

  • Exclusion of any protected Commission information, protected Agency information (within the meaning of the Act) and any other information that would identify a participant; and

  • Requirements that “no more information than necessary to identify the wrongdoing” be disclosed.19

Recommendation 5: Amend the Act to include an external disclosure pathway under the NDIS Act, allowing a whistleblower who has made a protected disclosure internally and no action has been taken to make a disclosure to the public.

4.2 Handling of whistleblowing disclosures

Improving the handling of whistleblowing disclosures through the operation of the NDIS whistleblower protections will contribute to greater integrity in two key ways:

(a) Ensuring that information about wrongdoing in the NDIS reaches the appropriate place for it to be addressed; and

(b) Encouraging a culture of reporting, by reducing the impact and chilling effect of retaliation and collateral harm that whistleblowers experience when they do speak up.

Preventing retaliation before it occurs and ensuring that whistleblower reports are identified and referred to the appropriate agency to investigate are critical components of effective whistleblowing regimes.

Anecdotally, one of the key reasons our clients decide not to blow the whistle is that they are fearful of the legal and employment risk they may face, and frequently cite examples of high-profile whistleblower cases to illustrate this. For example, clients will often ask “am I at risk of going to jail for this?” or say “I can’t afford to go against [my employer] if they sue me”.

Regulatory enforcement mechanisms will do nothing to address integrity issues in the NDIS where that wrongdoing is not reported. The workers and participants within the NDIS are the eyes and ears of the scheme, and one of the primary sources for identifying wrongdoing. If they do not have faith that they will be protected in speaking up, wrongdoing will go unreported.

Research from Griffith University demonstrates that it should not be inevitable that whistleblowers will suffer for speaking up, and the way that whistleblower complaints are handled and managed by officers within an organisation at the early stage has a significant bearing on the whistleblower’s

Integrity in the NDIS: fixing whistleblower protections

experience and likelihood of detriment.

Currently, the NDIS Act confers a heavy onus on whistleblowers to appropriately identify correct reporting pathways and does not place any

obligations on the recipients of whistleblowing disclosures to act.

4.2.2 Positive obligation on recipients

The practical effectiveness of whistleblower reporting under the NDIS Act is limited by the fact that the whistleblower protections are not firmly integrated with the obligations of NDIS providers in

respect of reportable incidents under the Act.

Currently, there is no obligation on senior managers, key personnel and officers of NDIS providers who are recipients of whistleblower reports under s 73ZA(2)(a)(iii)-(v) of the Act to notify the Commission or manage those reports in a prescribed way unless they meet the threshold of a reportable incident under s 73Z.

The definition of a reportable incident is narrower than the scope of subject matter that can draw whistleblower protections, being any contravention of the Act. We do not suggest that all internal whistleblowing disclosures should be required to be referred to the Commission or the Agency. However, the NDIS Act should be amended to mirror changes to other federal whistleblowing laws

which place obligations on managers, officers and regulators to respond to whistleblowing reports.

Recommendation 6: Amend the Act to impose positive obligations on recipients of disclosures under s 73ZA(2)(a)(iii)-(v) to assess the report to determine whether it constitutes a whistleblowing disclosure, and to keep the whistleblower updated (where practicable) about

any action or decision not to take action in response to their disclosure.

4.2.3 Whistleblower policies

The NDIS Act does not confer any obligation on providers to have a whistleblower policy. In our experience, many NDIS providers have complaints policies, but often these policies do not reference whistleblower protections or provide guidance on how to make a report that will be identified as a whistleblower disclosure and subject to protections. The recent reforms to the Aged Care whistleblowing regime in the Aged Care Act 2024 (Cth) included an obligation on aged care

providers to maintain a whistleblower policy (see s 165).

Jane Olsen and A J Brown, ‘Preventing detrimental whistleblowing outcomes: the value of risk assessment and proactive management’, Whistling While they Work — Working Papers (2018).

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This is integrated with the requirements of registered providers to maintain incident registers and feedback management systems (which capture complaints or feedback that may qualify for whistleblower protection). Many NDS providers are regulated entities under the Corporations Act and are therefore required to have a whistleblower policy, depending on the size of the organisation. However, there are also many NDIS providers in the sector that do not fall under the Corporations Act, often because they are unincorporated associations or entities incorporated under state legislation.

Recommendation 7:

Amend the Act to impose an obligation on all registered NDIS providers to have a whistleblower policy and procedures for handling whistleblower complaints, which should be integrated with other incident management systems.

4.3 Accessibility and strength of protections

Our Cost of Courage report, which compiled every whistleblower case to proceed to judgement across all Australian jurisdictions to 2023, concluded that whistleblower protections are drastically underutilised. Earlier research has shown that as many as 8 in 10 whistleblowers suffer detriment when they speak up.?#

4.3.1 The cost of seeking remedies

One of the reasons for this is that the risk and costs associated with taking legal action are high. Strengthening protections to prevent victimisation and improving the accessibility of remedies when victimisation does occur will help to reverse this concerning trend. We also recommend that the Committee consider government funding to support whistleblowers to access legal support and advice on navigating the NDS Act. This was recommended in the Wilson Review of the Queensland public sector whistleblowing regime,?2 and the NSW Ombudsman is now piloting a similar scheme for whistleblowers in the NSW public sector.?3

Recommendation 8:

The Committee consider the establishment of a program for NDIS whistleblowers to access funding (to an appropriate cap) for legal support in relation to their rights concerning potential or actual disclosures, steps to vindicate their rights and seek

Remedies, Funding, and Protection

Protection for Preparatory Acts

The judgment in Boyle v Director of Public Prosecutions has significantly limited the scope of the immunity from liability under s 10 of the PID Act.

The immunity found in s 73ZB(1) of the NDIS Act is very similarly constructed, casting uncertainty on the operation of this provision. In practical terms, it is difficult, if not impossible, for whistleblowers to make a disclosure which is otherwise protected without taking any reasonably necessary preparatory steps to make the disclosure.

Recommendation 9: Amend section 73ZB(1) to expressly provide that the immunity applying to makers of protected disclosures extends to their prior acts that are reasonably necessary for the making of the disclosure.

Procedural Guidance on Claiming Protections

Section 73ZD confers a right to compensation for a whistleblower who has made a protected disclosure under the Act who suffers damage due to victimisation within the meaning of s 73ZC. This is an important component of the whistleblowing regime because civil and criminal penalty provisions do not go to compensating a whistleblower who suffers victimisation. As far as we are aware, to date there have been no claims brought under s 73ZD to proceed to judgement.

One of the reasons why we understand whistleblower protections have been underutilised is that it remains unclear across many whistleblowing laws exactly what process a court would be required to take in resolving a claim for victimisation. The NDIS Act has no direction as to who has standing to bring a claim, or what court a claim may be brought in.

Recent amendments to other whistleblowing laws have sought to reduce the burden of pursuing a claim for victimisation by providing instructions on the process for resolving claims. Section 14ZZXA was recently included in the Taxation Administration Act 1953 (Cth), which provides procedural directions on bringing a claim. Similar guidance is provided in the PID Act.

Boyle v Commonwealth Director of Public Prosecutions [2023] SADC 27. Richard Boyle is an ATO whistleblower who made a public interest disclosure and subsequently faced criminal charges of unlawfully accessing and recording information, as part of their preparatory conduct to gather evidence. The Court held that preparatory conduct involved in gathering evidence to substantiate a disclosure did not form part of the act of making a disclosure and was therefore not subject to statutory immunity under the PID Act to protect the whistleblower from criminal immunity.

Recommendation 10

Amend the Act to clarify the procedure for taking a claim for breaches to protections under the Act.

Reverse onus of proof

Our experience working directly with the whistleblower clients has shown us that seeking compensation for victimisation and retaliation is challenging. Usually, there is a power imbalance between individual whistleblowers and the organisations they are bringing a claim against. In other jurisdictions, victimisation provisions have been amended to help even the playing field by reducing the burden on whistleblowers in legal proceedings.

For example, s 1317AD of the Corporations Act contains a reverse onus of proof for reprisal claims, whereby a whistleblower bringing a claim need only adduce evidence that suggests a reasonable possibility they have suffered detriment within the meaning of the Act. If that onus is discharged, The other person (or organisation) then bears the onus of providing that claim is not made out. Similarly, under the Public Interest Disclosures Act 2022 (NSW), the defendant bears the onus of proof in demonstrating that detrimental action evidenced by the applicant was not taken because The defendant knew or suspected the whistleblower had made a protected disclosure.

Recommendation 11:

Amend the Act such that a reverse onus of proof applies to a claim for compensation brought under ts 73ZD.

Cost protections

Another significant barrier preventing whistleblowers from bringing claims under the NDIS Act is the risk of an adverse costs order, particularly where there is no case law in this jurisdiction. To address this issue, The Corporations Act was amended to include an asymmetrical costs provision Whereby A whistleblower seeking compensation cannot be ordered to pay the Other sides costs Unless the proceedings were instituted vexatiously Or without reasonable cause, or the court Is satisfied the Claimant’s unreasonable act or omission caused the other side to incur the Costs.

Recommendation 12:

Amend the Act to Include An Asymmetrical Costs Provision For Proceedings Brought Under s 73ZD, Consistent With S 1317AH Of The Corporations Act, For Whistleblowers Bringing Reprisal Claims.

5. Recommendations

The recommendations throughout this submission reflect priority areas for reform. They respond to what we have observed as key issues in the NDIS whistleblowing framework requiring urgent attention to improve the utility of protections in the Act. This is not an exhaustive list. Ideally, the NDIS whistleblower protections should be aligned with equivalent private sector protections, to the maximum extent possible.

We would welcome the opportunity to provide further insights to the Committee in its public hearings, if useful to your consideration of these issues.

The Human Rights Law Centre recommends that the Committee:

  • Recommendation 1: The Committee recommend that the Parliament enact a single Whistleblower Protection Act that would provide protections for all whistleblowers across the private and non-profit sector, including NDIS whistleblowers.
  • Recommendation 2: The Committee recommend that the government meaningfully consider how to provide independent support and assistance to whistleblowers who provide information to federal regulators across the public and private sectors, including but not limited to in the NDIS.
  • Recommendation 3: Until comprehensive economy-wide reform occurs, the NDIS Act be amended to harmonise whistleblower protections with the Corporations Act 2001 (Cth) protections to the extent practicable and relevant, and other federal whistleblowing laws where appropriate.
  • Recommendation 4: Amend the Act to include protections for eligible whistleblowers to make a disclosure to a legal practitioner, medical practitioner, union or independent advocate for the purpose of seeking assistance or advice in relation to their disclosure.
  • Recommendation 5: Amend the Act to include an external disclosure pathway under the NDIS Act, allowing a whistleblower who has made a protected disclosure internally and no action has been taken to make a disclosure to the public.
  • Recommendation 6: Amend the Act to impose positive obligations on recipients of disclosures under s 73ZA(2)(a)(iii)-(v) to assess the report to determine whether it constitutes a whistleblowing disclosure, and to keep the whistleblower updated (where practicable) about any action or decision not to take action in response to their disclosure.

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  • Recommendation 7: Amend the Act to impose an obligation on all registered NDIS providers to have a whistleblower policy and procedures for handling whistleblower complaints, which should be integrated with other incident management systems.
  • Recommendation 8: The Committee consider the establishment of a program for NDIS whistleblowers to access funding (to an appropriate cap) for legal support in relation to their rights concerning potential or actual disclosures, steps to vindicate their rights and seek remedies, and funding for welfare costs including psychological support and career transition costs where appropriate.
  • Recommendation 9: Amend s 73ZB(1) of the Act to expressly provide that the immunity applying to makers of protected disclosures extends to their prior acts that are reasonably necessary for the making of the disclosure.
  • Recommendation 10: Amend the Act to clarify the procedure for taking a claim for breaches to protections under the Act.
  • Recommendation 11: Amend the Act such that a reverse onus of proof applies to a claim for compensation brought under s 73ZD.
  • Recommendation 12: Amend the Act to include an asymmetrical costs provision for proceedings brought under s 73ZD, consistent with s 1317AH of the Corporations Act, for whistleblowers bringing reprisal claims.

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