Human

Rights

Law

Centre

Safeguarding Integrity in the NDIS through whistleblower protections

Submission to the Community Affairs Legislation Committee on the

National Disability Insurance Scheme Amendment (Integrity and

Safeguarding) Bill 2025

February 2026

The Human Rights Law Centre

Kieran Pender, Associate Legal Director Madeleine Howle, Lawyer

The Whistleblower Project Human Rights Law Centre Ltd Level 5, 175 Liverpool Street Sydney NSW 2000

About Us

The Human Rights Law Centre uses strategic legal action, policy solutions and advocacy to support people and communities to eliminate inequality and injustice and build a fairer, more compassionate Australia. We work in coalition with key partners, including community organisations, law firms and barristers, academics and experts, and international and domestic human rights organisations.

Acknowledgement

The Human Rights Law Centre acknowledges the people of the Kulin and Eora Nations, the traditional owners of the unceded land on which our offices sit, and the ongoing work of Aboriginal and Torres Strait Islander peoples, communities and organisations to unravel the injustices imposed on First Nations people since colonisation. We support the self-determination of Aboriginal and Torres Strait Islander peoples.

    3.1.1    Former employees, officers, members, partners and participants ........................................ 10

    3.1.2   Anonymous disclosures ......................................................................................................... 10

    3.1.3   The ‘good faith’ requirement ..................................................................................................11

   3.1.4    Protections for disclosures to lawyers, medical practitioners and other supports .................11

3.2 Handling of whistleblowing disclosures …………………………………………………………………………………..11

    3.2.1    Positive obligation on recipients ........................................................................................... 12

   3.2.2    Whistleblower policies .......................................................................................................... 12

   3.2.3    External disclosure where appropriate ................................................................................. 13

3.3 Accessibility and strength of protections ………………………………………………………………………………… 13

    3.3.1    Confidentiality ....................................................................................................................... 14

   3.3.2    Protection for preparatory acts ............................................................................................. 14

   3.3.3    Procedural guidance on claiming protections ....................................................................... 15

4. Recommendations ………………………………………………………………………………………….. 16

Summary

The Human Rights Law Centre’s Whistleblower Project is Australia’s first legal service dedicated to providing

specialist legal advice and assistance to current and prospective whistleblowers across all jurisdictions in

Australia.

We make this submission to the Committee on the proposed reforms within the National Disability Insurance Scheme Amendment (Integrity and Safeguarding) Bill 2025 (the Bill) which address the regulatory powers of the NDIS Quality and Safeguards Commission (the Commission), relating to its

capacity to receive and act on whistleblowing disclosures.

We commend the government’s action in relation to strengthening enforcement powers under the scheme and believe that many of the proposed reforms are a step in the right direction to better safeguarding the human rights of persons with disabilities who access the NDIS. However, we are concerned that the Bill in its current form will not achieve its purpose of preventing and deterring wrongdoing without addressing the

significant shortfalls in the whistleblowing framework.

The whistleblower protections in Part 3A Division 7 of the National Disability Insurance Scheme Act 2013 (the NDIS Act)

are a critical component in ensuring integrity and accountability within a large and complex scheme, and reflect the role of whistleblowers as information sources to inform regulators and the public of

wrongdoing within the scheme.

The NDIS Act whistleblower protections are now among the most outdated across federal whistleblowing laws.

The present inquiry into the Bill is an opportunity that should be seized to bring NDIS whistleblower

protections in line with other federal protections. We make this submission to the Committee to address the

key opportunities in this Bill to strengthen whistleblower protections to:

Ensure that reforms directed at strengthening enforcement powers are effective in maximising the utility of whistleblowers as information sources for NDIS regulators; and
Improve the experience of NDIS participants, family members and independent advocates, or workers of providers who blow the whistle under the scheme.

This submission builds on our previous advocacy in relation to the NDIS whistleblower protections, including our submission to this Committee in May 2024 on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024.

2. Safeguarding integrity in the NDIS through

whistleblower protections

The outdated whistleblower protections contained within the NDIS Act are stifling the voices of would-be NDS whistleblowers.

Whistleblower protection is an essential part of the human rights framework in Australia, 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 and reflected in the Disability Discrimination Act 1992 (Cth). The ability of whistleblowers to safely speak up and the public’s right to know about wrongdoing by NDIS providers is crucial to the safety and sustainability of the scheme.

2.1 The inconsistent, overlapping whistleblower protection regime

The whistleblower protections in Division 7 of the NDIS Act were introduced by the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and other Measures) Act Bill 2017 for the purpose of promoting integrity and accountability of NDIS providers.* The protections have not seen substantial reform since being introduced. In the last 9 years, almost every other federal whistleblowing law has been reformed, leaving the NDIS Act whistleblower protections drastically behind best practice.

In our work at the Whistleblower Project, we have seen firsthand the impacts of a complex regulatory framework and inconsistent whistleblowing legislative regime, and the shortfalls in the NDS whistleblower protections. Whistleblowers in Australia are suffering as a result of complex laws and a lack of any regulatory or institutional support.

The Human Rights Law Centre has long advocated for the government to pursue a consistent and harmonised approach to whistleblower protections at the federal level. In our view, the best practice approach is a single economy-wide piece of legislation that would cover all whistleblowers across the private sector, and be harmonised to the extent practicable with the public sector Public Interest Disclosure Act 2013 (Cth). This was a key recommendation of the Parliamentary Joint Committee on Corporations and Financial Services in its review of whistleblower protections in 2017,* and is reflected in our report Protecting Australia’s Whistleblowers: The Federal Roadmap.*

A comprehensive and holistic approach to reform

A comprehensive and holistic approach to reform is the ideal was to provide enhanced and enduring protections in the NDIS. However, in the absence of such reform whistleblowers in the NDIS sector are remaining silent as the protections fall further out of step with other federal regimes.

It is within this broader context that we make recommendations to the committee which would deal with the most pressing issues that are preventing whistleblowers from speaking up.

Whistleblowing in the NDIS

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 are often staying 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 Commission 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.

The sector-specific nature of the NDIS whistleblower protections means that many whistleblowers, especially 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 behind other laws means that whistleblowers in the sector are often using alternative pathways to seek accountability for wrongdoing.

For example, the Corporations Act 2001 (Cth) (Corporations Act) and Public Interest Disclosure Act 2013 (Cth) (PID Act) both have stronger protections for whistleblowers, including protections for confidentiality and more proscriptive pathways for seeking remedies for retaliation (see part 3.3 of this submission), and provide protections for whistleblowers to disclose to the media in certain circumstances.

As a result of the lack of harmonisation between these regimes, 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 are disincentivising whistleblowers from making disclosures about wrongdoing in the NDIS to the appropriate regulator.

We are encouraged to see stronger penalties available for victimisation of whistleblowers available to the Commission in the proposed amendments to Division 7 of Part 3A of the Act in this Bill. However, this does not address the insufficient coverage for whistleblowers under the scheme, and will not deal with the overarching issues that are preventing whistleblowers from giving information to the Commission.

Case Studies Illustrating Whistleblower Experiences

provide 2 case studies below, which are composites of the experiences of whistleblowers which we have observed in our practice, to illustrate this point.

Case Study 1

Emma works for a small NDIS provider in a rural area. The provider is a proprietary limited company and therefore a regulated entity under the Corporations Act private sector whistleblowing regime. In the course of her work providing disability supports to a participant, Emma witnesses another employee of the provider engage in conduct towards a participant that would amount to a breach of the NDIS Code of Conduct. Emma discloses this information to her manager, who tells her not to say anything further about what she saw and not to report to the Commission, because the provider is struggling to retain business and do not want to risk losing their registration.

Emma resigns from her role because she feels she cannot continue working for the company after what happened. She wants to report the wrongdoing to a regulator. After looking at information online she realises she will not be protected in going to the NDIS Commission with the information, because she is no longer employed by the NDIS provider where the wrongdoing occurred. She knows that if she discloses to the NDIS Commission anyway and the provider is investigated, they will likely know that it was her that blew the whistle, because no one else had seen or raised concerns about the wrongdoing. She is already struggling to find other work and is worried she won’t be able to get a job because her former employer is well connected.

Emma sees that she can make a disclosure to ASIC under the Corporations Act as a former employee, so she decides to make a disclosure there hoping that they will be able to investigate the wrongdoing and provide her with protections. ASIC responds by email 2 weeks after Emma has made the report, saying they will not investigate any further on the basis that the wrongdoing does not fall within their investigative remit.

Case Study 2

Gabriel currently works for an NDIS provider that is structured as an unincorporated association. The organisation he works for 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.

2.3 A time for reform

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability found in 2023 that the Commission needed to move towards a more active regulation model. One month following this, the Independent Review into the NDIS noted the Commission has lacked the enforcement powers to act responsively on disclosure of inappropriate or illegal conduct. These recommendations were cited in the Explanatory Memorandum to this Bill.

The Bill in its current form seeks to expand the Commission’s powers to respond to wrongdoing under the NDIS Act, without expanding the scope for workers and participants within the scheme to safely give information to the Commission to fulfil its regulatory functions. These reforms to the NDIS Act cannot sufficiently address the issues regarding integrity within the regime without strengthening protections for whistleblowers who speak up about wrongdoing.

The Human Rights Law Centre gave evidence to this committee during its inquiry into the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 regarding a client’s experience in being unable to lawfully disclose information to the Commission about the serious human rights abuses perpetrated against an NDIS participant. Nearly 2 years on, the NDIS Act whistleblower protections remain unchanged, leaving many other whistleblowers in the sector without legal protections.

Since then, we have helped many other clients who have come to our service regarding wrongdoing witnessed in the NDIS sector. Their whistleblowing often involves having 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.

With the context of best practice reforms in mind, we make the following overarching recommendations to 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 sector, including NDIS whistleblowers.
Recommendation 2: 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.

Page 9

The remaining recommendations throughout this submission reflect priority areas for reform. They respond to what we have observed as key issues in the NDIS whistleblelling framework requiring urgent attention to improve the utility of protections in the Act. Ideally, the NDIS whistleblelling framework should be harmonised in accordance with our recommendations above; we provide the below alternative

recommendations as practical, short-term solutions until the wider, comprehensive reform we recommend is achieved.

3. Recommendations for reform

3.1 Eligibility of reporting individuals to be protected

The NDIS Act currently confers one of the narrowest scopes amongst federal whistleblowing laws for protections to apply. The case studies in Part 2.2 above reflect the impact this has on the direction of reports of information about wrongdoing within the NDIS. Reforms to the scope of eligibility of reporting individuals to be protected under the Act will assist in addressing this issue.

3.1.1 Former employees, officers, members, partners and participants

Section 73ZA(1) of the Act provides the scope for an individual connected to an NDIS provider to be eligible to make a protected disclosure under Division 7. The temporal connection between the categories of eligible whistleblowers and the NDIS provider in subsections (a)-(d) is currently limited, in that you must be a current worker or participant of (or otherwise currently connected to) the NDIS provider to be protected.

It is a common experience for whistleblowers to hold concerns about making a whistleblowing report whilst still employed where the wrongdoing occurred, particularly under the NDIS where many workers are employed by small to medium businesses where they are more likely to be identified as the whistleblower.

Similarly, participants or independent advocates may not want to make a whistleblower report whilst still accessing supports from a provider.

Under the Act currently, an individual ceases to be eligible to make a protected disclosure when the relationship between them and the provider ends. In most circumstances, it is safer for a whistleblower who is seeking to leave the provider to report wrongdoing after. Further, it is not uncommon for whistleblowers to be distressed or in a position where they do not have the capacity to report the wrongdoing until after they have left. The current restrictive approach places an unnecessary temporal requirement that should be removed to ensure whistleblowers can safely and lawfully disclose information.

Recommendation 3: Amend the scope of eligible whistleblowers to include former workers and other eligible whistleblowers no longer connected to the NDIS provider the disclosure relates to.

3.1.2 Anonymous disclosures

Section 73ZA(2)(b) requires a person to “inform the person to whom the disclosure is made of the discloser’s name before making the disclosure”. It is unclear whether a person needs to write to the recipient, for example, the Commissioner, informing them of their name and intention to make a disclosure before doing so, or whether this requirement is satisfied by merely putting their name to their disclosure in writing. In any event, this requirement places an obligation on the whistleblower to disclose their identity.

The requirement to provide your name when making a whistleblowing disclosure was most recently removed from the Aged Care Act 2024 (Cth), meaning all other federal whistleblower regimes now allow for anonymous disclosures. The requirement to provide your name when making a report leads to compounded

Risk under the NDIS Act

risk under the NDIS Act, in the context that it is the only substantial federal whistleblowing regime that does not provide protection for the confidentiality of a whistleblower (discussed further in 3.3.1. below).

Recommendation 4: The requirement under s 73ZA(2)(b) to inform the recipient of the disclosure

of the discloser’s name before making the disclosure should be removed. A section should be added

to expressly provide that whistleblowing disclosures under the Act can be made anonymously.

The ‘good faith’ requirement

Section 73ZA(2)(d) confers an ambiguous “good faith” requirement on the whistleblower. The “good faith”

test was previously found in other federal whistleblower regimes but has been removed across all other federal laws in relation to the threshold to be protected in making a disclosure. The legislative test in the Corporations Act is now formulated as a “reasonable grounds” test, which is already reflected in s 73ZA(2)(c) of the NDIS Act. The good faith requirement was recognised as creating uncertainty and increased risk for whistleblowers by enabling organisations to allege subjective or collateral motivation of the whistleblower to prevent protections from applying.7

Recommendation 5: Remove the ‘good faith’ requirement from s 73ZA(2).

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, inconsistent with 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 late last year.8 In addition to legal and medical practitioner disclosures, the NDIS Act should include protections for disclosures to independent advocates.

Recommendation 6: 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.

Handling of whistleblowing disclosures

Strengthening the Commission’s enforcement powers will go some way in deterring retaliation against whistleblowers. However, enforcement of criminal and civil penalties for victimisation against whistleblowers does little to improve the experience of the whistleblower, as these penalties do not go to correcting loss suffered by the whistleblower due to the retaliation, or the incidental harms they may experience for doing so 7 Quinlan v ERM Power Ltd & Ors [2021] QSC 35 [19]. 8 Exposure Draft of the Public Interest Disclosure and Other Legislation Amendment (Whistleblower Protections) Bill 2025.

(including the cost of seeking legal advice or career transition costs). This has a chilling effect on whistleblowers who contemplate reporting wrongdoing.

Preventing retaliation before it occurs and ensuring that whistleblower reports are identified and referred to

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”.

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 experience and likelihood of detriment.9 Currently, the NDIS Act confers a heavy onus on whistleblowers to appropriately identify correct reporting pathways and does not place any obligations in legislation for the recipients of whistleblowing

disclosures to act.

3.2.1 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 7: The Bill should be amended 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.

3.2.2 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

9 Jane Olsen and A J Brown, ‘Preventing detrimental whistleblowing outcomes: the value of risk assessment and proactive management’, Whistling While they Work 2 – Working Papers (2018).

Protections for Whistleblowers

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). 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 NDIS 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 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 8: 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.

External Disclosure where appropriate

In recent years, public interest journalism has played a crucial role in exposing wrongdoing within the NDIS. 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 Act in line with whistleblower protections in other federal regimes.

Recommendation 9: 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 da disclosure to the public.

Accessibility and strength of protections

The Human Rights Law Centre published the Cost of Courage report in 2023, which compiled every whistleblower case to proceed to judgement across all Australian jurisdictions. We concluded that whistleblower protections are drastically underutilised, despite research concluding as many as 8 in 10

Recommendation

whistleblowers suffer detriment when they speak up.10 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 improve 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 NDIS Act. This was recommended in the Wilson Review of the Queensland public sector whistleblowing regime,11 and the NSW Ombudsman is now piloting a similar scheme for whistleblowers in the NSW public sector.12

Recommendation 10: 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 and steps to vindicate their rights and seek remedies, and funding for welfare costs including psychological support and career transition costs where appropriate.

Confidentiality

The NDIS Act is the only federal whistleblowing law that does not include obligations on the recipient of a whistleblower report not to disclose a whistleblower’s identity or confer penalties on individuals who disclose a whistleblower’s identity. Compounded with the inability for a whistleblower to make an anonymous report, we believe this is having a significant chilling effect on whistleblower disclosures.

Recommendation 11: The Act be amended to impose obligations in respect of protecting a
- whistleblower’s identity, including civil penalties for breaches to these obligations.

Protection for preparatory acts

The judgement in Boyle v Director of Public Prosecutions (Cth) [2024] SASCA 7313 under the PID Act has significantly limited the scope of the immunity from liability under s 10 of that 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.

10 Kieran Pender, Human Rights Law Centre, The Cost of Courage: Fixing Australia’s Whistleblower Protections (August 2023) 4.

11 Alan Wilson KC, Review of the Public Interest Disclosure Act 2010 (Qld) (Report, June 2023) 212.

12 Legal and Constitutional Affairs Legislation Committee, Public Hearing, Whistleblower Protection Authority Bill 2025 (13 August 2025) p. 34.

13 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 in order to protect the whistleblower from criminal immunity.

Section 73ZB(1) Amendment

Recommendation 12: Section 73ZB(1) be amended 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, as flagged above, civil and criminal penalty provisions do not go to compensating a whistleblower who suffers victimisation. As far as we are aware, there have been no claims to proceed to judgement brought under s 73ZD to date.

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 whistleblowers 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.

Recommendation 13: Amend the Act to clarify the procedure for taking a claim for breaches to protections under the Act.

The recommendations in this section go to the overarching issues that whistleblowers face in relation to accessing and enforcing the intended protections under the scheme. It is equally important for relevant regulatory agencies to understand whistleblowing frameworks and how whistleblowing occurs in practice and provide accessible information to the public about the whistleblowing pathways and how a disclosure can safely and lawfully be made. We’ve been pleased to see the Commission progress work in this area following the NDIS reforms last year, and would encourage ongoing engagement with the sector to better address the practical shortcomings which are preventing NDIS whistleblowers from safely disclosing information about wrongdoing in the sector to the appropriate source for it to be addressed and prevented.

Recommendations

The Human Rights Law Centre makes the following recommendations in relation to the Committee’s consideration of the Bill:

Recommendation 1: The Committee recommend that the Parliament enact a single Whistleblower Protection Act that would provide protections for all whistleblowers across the private sector, including NDIS whistleblowers.
Recommendation 2: 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.
Recommendation 3: Amend the scope of eligible whistleblowers to include former workers and other eligible whistleblowers no longer connected to the NDIS provider the disclosure relates to.
Recommendation 4: The requirement under s 73ZA(2)(b) to inform the recipient of the disclosure of the discloser’s name before making the disclosure should be removed. A section should be added to expressly provide that whistleblowing disclosures under the Act can be made anonymously.
Recommendation 5: Remove the ‘good faith’ requirement from s 73ZA(2).
Recommendation 6: 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 7: The Bill should be amended 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.
Recommendation 8: 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 9: 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 10: 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 and steps to vindicate their rights and seek remedies, and funding for welfare costs including psychological support and career transition costs where appropriate.
Recommendation 11: The Act be amended to impose obligations in respect of protecting a whistleblower’s identity, including civil penalties for breaches to these obligations.
Recommendation 12: Section 73ZB(1) be amended 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 13: Amend the Act to clarify the procedure for taking a claim for breaches to protections under the Act.

Strengthening NDIS integrity through whistleblower protections