ICAC report on proposed reform of South Australia's whistleblower protections

The Public Interest Disclosure Act 2018 (PID Act) is not a lengthy piece of legislation. However, any public officer who has spent any time considering the application of the PID Act to a specific situation, whether by making a disclosure or as a person involved in the handling of a disclosure, quickly discovers how complex the legislation can be.

Following a 10-month review of South Australia’s whistleblower framework, South Australia’s Independent Commission Against Corruption (ICAC) has, to some extent, validated the concerns of those public officers who have found the PID Act to be unwieldy and difficult to apply.

The ICAC’s report, titled ‘Doing right by those who call out the wrong: a review of South Australia's whistleblower protection regime’ (the Report), is available here. The review incorporated public consultation, agency evaluations and a public forum, and resulted in ICAC making 61 recommendations to improve, simplify, and strengthen the current whistleblower framework. 

Proposed legislative amendment

In the Report, ICAC recognised the complexity of the laws governing South Australia’s integrity framework. Recommendation 54 provides that South Australia’s whistleblower laws should be revised to:

• remove the need to jump between multiple pieces of legislation; 
• adopt a more logical structure;
• use plain and simple English; 
• expressly state that disclosures may be anonymous; and 
• mandate refresher training for people who can receive disclosures.

Other noteworthy recommendations for legislative reform include:

• a long overdue reform to remove the provision which presently captures all members, officers and employees of a council as ‘relevant authorities’ for location-based disclosures, and instead providing that such disclosures are to be made to responsible officers appointed under the PID Act;
• capturing not only managers and supervisors of officers the subject of disclosures as relevant authorities, but also the managers and supervisors of officers making disclosures;
• that disclosures of public administration information made to legal practitioners, medical practitioners and psychologists be protected under whistleblower legislation where those disclosures occur within a confidential professional relationship and for the purpose of obtaining advice or assistance in connection with a disclosure (appropriately, the Report also recommends that such disclosures should not trigger the duty to act provisions contained in the whistleblower framework);
• narrowing the broad circumstances in which an informant's name can currently be disclosed without consent, while still allowing investigations to continue where there is a risk of harm (disappointingly, the ICAC found the proportion of public officers willing to report suspected corruption internally within their workplace has fallen from 70% in 2018 to 60% in 2024);
• common-sense extensions to the protection to former public officers, unpaid workers within public authorities (including students on placements, trainees and volunteers), participants in public sector procurement and recruitment processes, and recipients and prospective recipients of government grants;
• the proposed establishment of an independent whistleblower support authority within the Office for Public Integrity to provide information, guidance and support to those who come forward; and
• new digital tools to help agencies better engage with anonymous informants.

The above recommendations are just that: recommendations. Whether and the extent to which any of these recommendations are ultimately reflected in legislation is a matter for the State Government and for Parliament.

Further, if most or all of the recommendations are to be implemented, it may prove challenging to devise a suite of amendments and/or repeal and replacement which simultaneously simplifies the legislative framework while also incorporating the various proposed new concepts set out in the report.

If and when any bill is introduced into Parliament, or draft legislation is publicly released for comment, we will examine it closely and will provide our views to the sector.

Recommended actions for agencies 

While the Report makes a suite of recommendations for legislative change, the ICAC has also recognised that organisational culture and practices play a critical role in improving South Australia’s whistleblower regime. The Report stresses that agencies should not wait for legislative change before taking action to better support whistleblowers and to create a ‘speak up’ culture within their organisations. 

Accordingly, in addition to recommending legislative reform, the ICAC also makes a range of recommendations which councils and other agencies may act upon now, including:

• assessing whether the current avenues for making internal public interest disclosures are sufficiently accessible and, where appropriate, expanding those avenues to increase accessibility for potential informants; 

• reviewing public interest disclosure procedures and reporting channels to ensure compliance with the PID Act, protect confidentiality, support the appropriate handling of disclosures and adequately communicate reporting arrangements to staff (particularly for organisations utilising shared inboxes, hotlines and postal addresses to receive disclosures);

• integrating South Australia’s whistleblower laws into internal policies and procedures relating to the making of complaints and reports, including by providing guidance about the interrelationship between those laws and the organisation’s internal policies and procedures; 

• considering whether staff members in roles likely to receive disclosures should be designated as responsible officers and reviewing the seniority and location of responsible officers within the organisation; 

• identifying opportunities to further promote a culture where public interest disclosures are encouraged, including through messaging from leadership and promotional campaigns; and 

• improving internal training programs to provide sufficient information about public interest disclosures and communicate the organisation’s commitment to a ‘speak up’ culture.

If you have any queries regarding any of the recommendations made by ICAC within the Report or how it may impact upon your organisation, please contact Dale Mazzachi on +61 8 8210 1221 at dmazzachi@normans.com.au, Felice D’Agostino on +61 8 8210 1202 at fdagostino@normans.com.au, or Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au.